When Is An Actor An Author?

Author:Mr John McKeown
Profession:Goldman Sloan Nash & Haber LLP

A recent U.S. case raises some interesting copyright issues concerning the rights of actors who appear in a film.

The Facts

The plaintiff, an aspiring actress, answered a casting call for a low-budget amateur film. The working title of the film was "Desert Warrior" which was to be an adventure film set in ancient Arabia. The writer and producer cast the plaintiff in a minor role. She was given four pages of the script in which her character appeared and paid approximately $500 for three and a half days of filming. The producer did not obtain any formal assignment of copyright or other applicable consent or waivers from the plaintiff.

The "Desert Warrior" never materialized and instead, the plaintiff's scene was used in an anti-Islamic film titled the "Innocence of Muslims."  The plaintiff first saw the "Innocence of Muslims" after it was uploaded to YouTube.com. She discovered that her performance had been partially dubbed over so that she appeared to be asking whether the Prophet Mohammed was a sexual deviant.

After the film aired on Egyptian television, there were protests that generated worldwide news coverage. An Egyptian cleric issued a fatwa, calling for the killing of everyone involved with the film and the plaintiff soon began receiving death threats. She responded by taking a number of security precautions and asking that Google remove the video from YouTube.

The Takedown

The plaintiff filed a series of takedown notices under the Digital Millennium Copyright Act.  When Google resisted the plaintiff applied for a temporary restraining order seeking removal of the film from YouTube, claiming that the posting of the video infringed her copyright in her performance.

The District Court

The District Court refused to grant the order because the plaintiff failed to show that the requested preliminary relief would prevent any alleged harm and was unlikely to succeed on the merits because she had granted the producer an implied license to use her performance in the film.

The Appeal

The plaintiff appealed to the United States Court Of Appeals for the Ninth Circuit. The majority of the court found that the plaintiff could assert a copyright interest only in the portion of "Innocence of Muslims" that represented her individual creativity, but even if her contribution was relatively minor, it was not de minimis. This was sufficient for purpose of seeking preliminary relief.

The Court found that the plaintiff granted the producer an implied...

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