GARCIA V. GOOGLE: THE IMPRACTICALITIES OF AWARDING COPYRIGHT AUTHORSHIP FOR FIVE SECONDS OF FAME.

UNITED States. Court of Appeals (9th Circuit); GOOGLE Inc.

In 2014, the United States Court of Appeals for the Ninth Circuit rocked the entertainment industry by holding in Garcia v. Google Inc., et al. that Cindy Lee Garcia, an ordained Christian minister turned aspiring actress, was likely to prevail on a copyright claim for authorship in the controversial trailer for Innocence of Muslims, which Garcia appeared in for five seconds. Innocence of Muslims received worldwide attention and sparked international protests, leading to death threats targeting Garcia and other individuals involved in the making of the trailer. As a result of these threats, Garcia petitioned YouTube to remove the trailer. When YouTube denied her requests, Garcia filed a lawsuit in the Northern District of California. Thereafter, Garcia unsuccessfully moved for a preliminary injunction. Garcia appealed to the Ninth Circuit, which reversed the district court, holding that a performance is copyrightable any time an actor contributes to a film with a small performance that meets a minimal amount of creativity. The Ninth Circuit's ruling-which was eventually overturned through an en banc proceeding-had the effect of allowing insignificant cast members to dictate the distribution of a film, which not only impacts Hollywood studios, but also technology companies that engage in content streaming. Although the Ninth Circuit ultimately reached the correct decision through its en banc process, considerable debate remains regarding the copyrightability of an actor's performance in a motion picture. This Comment addresses this issue by proposing a new test that can be used to analyze whether an actor's performance is copyrightable. The proposed test focuses on: (1) the role of the actor/actress within the motion picture; (2) the level of significance of that role within the motion picture; (3) the level of control and discretion afforded to the actor/actress in conveying his or her role; and (4) the level of control afforded to the actor/actress in production of the motion picture as a whole. The proposed test strikes a balance between heightening the requirements to attain authorship in a motion picture while providing a remedy where the performance and influence of an actor/actress truly warrants a copyright award. [ABSTRACT FROM AUTHOR]

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