Garcia V Google On Actor Performance And Copyright.
I. Garcia v. Google, Inc. (9th Cir. 2015 – En Banc)
1. Background
Cindy Lee Garcia, an actress, acted in a low-budget film called Desert Warrior.
The film was later heavily edited without her consent into a video titled Innocence of Muslims, which was offensive to Muslims.
The video was uploaded to YouTube (owned by Google), causing threats to Garcia.
Garcia’s claim:
Her acting performance is copyrightable.
Google should have removed the video under the DMCA.
2. Legal Issues
Is an actor’s performance independently copyrightable?
Does Garcia have copyright ownership over her performance?
Can Google be liable for copyright infringement?
Can she use DMCA for takedown?
3. Initial Panel Decision (2014)
Court initially sided with Garcia:
Her performance was fixed (recorded on film).
It was original expression (facial expressions, gestures).
Google was ordered to take down the video.
4. En Banc Reversal (2015)
The full Ninth Circuit reversed the panel. Key points:
No Independent Copyright
An actor’s performance incorporated into a motion picture is not a separate copyrighted work.
Fixation
Recording is controlled by the director/producer, not the actor.
Work Made for Hire
Acting is typically under producer supervision for the producer’s benefit.
Copyright belongs to producer.
DMCA Limits
DMCA protects copyright, not reputation or safety concerns.
Holding:
An actor does not own a separate copyright in her performance once it is incorporated into a motion picture, unless explicitly reserved in a contract.
II. Related Case Laws
1. Aalmuhammed v. Lee (9th Cir. 2000)
Plaintiff contributed scenes to Malcolm X and claimed joint authorship.
Court ruled no joint authorship without:
Intent to co-author
Control over final work
Relevance: Like Garcia, she didn’t control the final film.
2. Reid v. Community for Creative Non-Violence (U.S. Supreme Court, 1989)
Defined “work made for hire” with factors like:
Skill required
Supervision
Tools/location
Duration of work
Relevance: Actors under supervision → typically “work made for hire.”
3. Baltimore Orioles v. MLBPA (7th Cir. 1986)
Baseball players tried claiming copyright in broadcasts of their performance.
Court: Performance merged with broadcast → no separate copyright.
Relevance: Live or recorded performance alone ≠ copyright.
4. Fleet v. CBS (Cal. Ct. App. 1996)
Actor objected to TV show reruns.
Court: Once filmed → producer owns copyright.
Relevance: Garcia had no copyright because she lacked control.
5. Kelley v. Chicago Park District (7th Cir. 2011)
Artist designed a garden and claimed copyright.
Court: Mere contribution without creative control ≠ copyright.
Relevance: Actors contribute but don’t control final work.
6. Midler v. Ford Motor Co. (9th Cir. 1988) – contrast case
Bette Midler’s voice was imitated in an ad.
Court: Not copyright infringement, but violation of right of publicity.
Relevance: Garcia might have had recourse via tort law or publicity rights, not copyright.
III. Why Garcia Lost
| Issue | Result |
|---|---|
| Copyright Ownership | ❌ No |
| DMCA Takedown | ❌ Not applicable |
| Moral Rights | ❌ Limited in US |
| Alternative Remedies | ✅ Tort law, right of publicity, contract law |
IV. Key Takeaways
Actor performance ≠ standalone copyrighted work.
Film copyright = director/producer.
DMCA is not for moral or reputational harm.
Actor protection mostly via:
Contracts
Right of publicity
Tort law
V. One-Sentence Rule
Garcia v. Google confirms that copyright law does not break a film into individual actor performances; copyright remains with the producer/director unless a contract says otherwise.
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