Finding a Copyright Balance in a Modernizing World

NIKKI RIGL – A recent case, Garcia v. Google, Inc., caused quite a controversy with its polarized decisions over the last few months regarding an actor’s individually held copyright. The stark differentiations between the panel and en banc rulings of this case are worth noting, and may serve as a jumping off point for the United States to reexamine its copyright framework. The United State’s copyright foundation has adapted to years of common practices in the advancing entertainment industry and, accordingly, a change to such a foundation might lead to confusion and increased litigation.[1] Perhaps looking to other country’s frameworks for guidance will help shed some light on some alterations that might broaden the inclusivity of protections within the United State’s copyright realm, and, thus, help guard against such confusing application of the established law.


Cindy Lee Garcia, a fledgling actress, earned a cameo role in the action adventure film Desert Warrior, written and directed by Mark Bassely Youssef, in July 2011.[2] In June 2012, Youssef uploaded a trailer to Youtube, the popular Google-owned free video-sharing website, depicting his new film: Innocence of Muslims.[3] Included in this trailer was a shot of Garcia from Desert Warrior (albeit for only five seconds), which Youseff had interposed into his new movie and dubbed over Garcia’s lines so that what she spoke was controversial and culturally insensitive.[4]

This film sparked outrage, especially in the Middle East, and led to various violent protests; more central to the case at hand, however, were the multiple death threats that Garcia received because of her presence within Youseff’s discriminatory film.[5] Garcia begged Google to remove the film for violating her right to privacy and her right to publicity, and, most notably, she sent takedown notices to Google under the Digital Millenium Copyright Act, 17 U.S.C. §512, asserting that Youtube infringed her copyright in her “audio-visual dramatic performance” by broadcasting Youssef’s anti-Islamic film.[6]

The United States District Court for the Central District of California concluded that Garcia did not have a copyright interest in her performance because Garcia had granted the film director, Youssef, an implied license to “distribute her performance as a contribution incorporated into the indivisible whole of the film.”[7]

A divided panel reversed and the majority therein held that Garcia was likely to prevail on her copyright claim as to her individual performance in Innocence of Muslims.[8] The panel reasoned that Garcia had granted Youseff a license to perform his screenplay, not to incorporate her performance into his film.[9] Accordingly, Google, Inc. was instructed to take down all copies of Innocence of Muslims from Youtube and any other Google-controlled platforms.[10] This injunction essentially allowed the court to act as a film editor and its takedown order of Youssef’s film “censored and suppressed a politically significant film [ . . . ] based upon a dubious and unprecedented theory of copyright.”[11]

The panel’s decision was unprecedented and it destabilized and wreaked havoc upon the copyright framework this country has for so long relied upon and trusted. Justice Smith’s dissent attempted to remind us of the basic copyright intricacies ignored by the majority’s ruling: Garcia would not likely “prove her performance was a work, nor would she likely meet the copyright requirements of authorship and fixation, among other shortcomings of her claim.”[12]

The Ninth Circuit granted rehearing en banc and reversed the panel decision, claiming that the District Court had committed no error in its initial copyright analysis as both the Copyright Act and the Copyright Office’s interpretation do not support Garcia’s claim.[13] The Copyright Office’s “longstanding practices do not allow a copyright claim by an individual actor or actress in his or her performance contained within a motion picture.”[14]

With respect to copyright registration purposes, a motion picture is a unified integrated entity and a contribution limited to mere acting performance does not suffice as registrable material.[15] Furthermore, Garcia failed to fix her acting performance in a tangible medium, as required by 17 U.S.C. §101.[16] Because Garcia’s copyright claim was ultimately deemed unsuccessful, the injunction would no longer have any force or effect because the backbone to its order had broken down.[17]


 The considerable imbalance between the Garcia v. Google, Inc. panel and en banc decisions indicates that the United States might be better off adopting a few changes to its current copyright framework. One interesting regulatory structure to examine for inspiration is the “related rights” protocol in Europe. Related rights are “intellectual property rights in forms of expression distinct from the more conventional objects of copyright law [ . . . ] that provide rights-holders with protection similar to copyright, though often with greater limitations.”[18] These generally cover forms of expression involving performance or the recording of existing fixed works like screenplays and musical scores.[19]

Adopting the related rights framework would create a middle ground between full copyright protection in acting performance and no protection at all. Related rights “offer a promising avenue for negotiating among the concerns of actors like Garcia, the economic interests of the entertainment industry, and the free speech rights of the general public.” [20]


[1] See Anthony Dreyer, Jordan Feirman, and Katelyn Andrews, Garcia v. Google: Implications of the Ninth Circuit’s Proposal that Actors Have Independent Copyrights in Their Own Performances, Bloomberg Law (April 9, 2014), (last visited Dec. 27, 2015).

[2] Electronic Frontier Foundation,, at 9 (last visited Dec. 27, 2015).

[3] Id. at 9-10.

[4] Id. at 9.

[5] See Id. at 10.

[6] Id.

[7] Id. at 11.

[8] Id. at 12 (citing Garcia v. Google, Inc., 766 F.3d 929 (9th Cir. 2014)).

[9] Id. at 12 (quoting Garcia v. Google, Inc., 766 F.3d 929, 935 (9th Cir. 2014)).

[10] Id. at 12 (reiterating the Garcia v. Google, Inc. panel ruling).

[11] Id. at 28 (addressing the Garcia v. Google, Inc. panel’s injunction order).

[12] Id. at 13 (citing Garcia v. Google, Inc., 766 F.3d 929, 946 (9th Cir. 2014)(emphasis added).

[13] Id. at 23 (citing Garcia v. Google, Inc., 786 F.3d 733 (9th Cir. 2015).

[14] Id. at 17.

[15] Id.

[16] Id. at 22.

[17] Id.

[18] Jacob M. Victor, Garcia v. Google And a “Related Rights” Alternative to Copyright in Acting Performances, 124 Yale L. J. Forum 80, 84 (2014) (citing PAUL EDWARD GELLER & LIONEL BENTLY, INTERNATIONAL COPYRIGHT LAW AND PRACTICE, Introduction § 2(2)(a)(ii) (2013)).

[19] Id.

[20] Id.

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