Actress Cindy Lee Garcia unknowingly played a role in the allegedly blasphemous Innocence of Muslims trailer that appeared on You Tube in the Summer of 2012, sparking violent unrest in parts of the Islamic world. A five-second, two-line performance that Garcia gave for a film entitled Desert Warrior (“Is George crazy? Our daughter is but a child?”) found its way into the Innocence of Muslims trailer with a different question over-dubbed by another actress: “Is your Mohammed a child molester?” A fatwa issued against everyone involved in the trailer, and Garcia received numerous death threats.

Garcia sued to have You Tube take down the trailer. For reasons that are unclear to me, out of the many legal theories that may have been available to them, Garcia’s lawyers chose to proceed on the grounds that You Tube was infringing a copyright that their client held in her Desert Warrior cameo. Under Section 102(a) of the Copyright Act, a copyright “subsists in original works of authorship fixed in any tangible medium of expression.”  Does Garcia’s five-second filmed performance meet this standard? Today the federal Court of Appeals for the Ninth Circuit ruled that it does not.  More about the spirited debate between the majority and the dissent after the jump.

The majority worried that “Garcia’s theory can be likened to ‘copyright cherry picking,’ which would enable any contributor from a costume designer down to an extra or best boy to claim copyright in random bits and pieces of a unitary motion picture”:

Take, for example, films with a large cast—the proverbial “cast of thousands” . . .  In the Lord of the Rings trilogy, 20,000 extras tramped around Middle-Earth alongside Frodo Baggins. Treating every acting performance as an independent work would not only be a logistical and financial nightmare, it would turn cast of thousands into a new mantra: copyright of thousands.

According to the majority, Garcia’s scene does not qualify under Section 102(a) because (1) only a “whole” or “unitary” motion picture, not its constituent parts, qualifies as a work of authorship; and (2) it was not Garcia who fixed her performance it a tangible medium of expression.

The dissent, penned by Judge Alex Kozinski, had a rather easy time dismantling the majority’s reasoning. If Garcia’s scene does not qualify as a work under Section 102, Kozinski writes,

then every take of every scene of, say, Lord of the Rings, is not a work, and thus not protected by copyright, unless and until the clips become part of the final movie. If some dastardly crew member were to run off with a copy of the Battle of Morannon, the dastard would be free to display it for profit until it was made part of the final movie. And, of course, the take-outs, the alternative scenes, the special effects never used, all of those things would be fair game because none of these things would be “works” under the majority’s definition. And what about a draft chapter of a novel? Is there no copyright in the draft chapter unless it gets included in the published book?

Furthermore, Kozinski points out, there is no requirement that the author of a work be the one who actually operates equipment fixing it in a tangible medium of expression: “Did Jimi Hendrix acquire no copyright in the recordings of his concerts because he didn’t run the recorder in addition to playing the guitar?” Perhaps a better example would be Stephen Hawking, who must, due to physical limitations, dictate his work so that it can be fixed.

The majority, I think, should have conceded that a single scene of a movie is a work of authorship entitled to copyright protection–Kozinski is certainly correct about that–and focused on the nature of the work of authorship at issue–a motion picture scene–and on who is the author of it. It is not the actors who simply recite lines, gesture, and emote, nor the camera operators who record it, but rather it is the director, who determines how these things should be done and how the entire mise en scène is to be composed, that is the author of an audio-visual work, whether it be a feature length movie or a single scene.

Although Kozinski is also correct that actors bring their own creativity and unique personalities to a performance–that no one, indeed, would “claim that Gone With the Wind would be the same movie if Rhett Butler were played by Peter Lorre”–neither dramatic performances nor personalities are works of authorship entitled to copyright protection. For that proposition the Ninth Circuit could have cited no less an authority than the Ninth Circuit, which back in 2013–in a fair use case arising from use of a seven-second clip of Ed Sullivan in Jersey Boys–rejected an attempt to claim a copyright in Ed Sullivan’s charismatic personality or in his characteristic “gesticulation and style.”