Actors and Film Authorship: Unpacking Garcia v. Google

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New York, February 17, 2015—Are there circumstances in which actors hold copyright ownership in movies they have acted in? Or does copyright inevitably lie with the filmmakers who mastermind the movies?

These questions are at the heart of Garcia v. Google, Inc., a much-discussed case pending before the U.S. Court of Appeals for the 9th Circuit, and were the topic of a Feb. 3 talk at Columbia Law School hosted by the Kernochan Center for Law, Media, and the Arts. After an introduction from Kernochan Center Executive Director June Besek, Loyola Law School Professor Jay Dougherty ’81 and D.C.-based attorney Jonathan Band weighed in on the case that has rocked the intellectual property world.

In 2011, an amateur actress named Cindy Lee Garcia received $500 to perform in an independent adventure film supposedly to be called Desert Warrior. The filmmaker, Nakoula Basseley Nakoula, instead used the footage in an anti-Muslim film called Innocence of Muslims, dubbing over Garcia’s lines with offensive new dialogue. A purported trailer for the film was released online, sparking international outrage and—by some accounts—helping to incite the September 2012 attacks on U.S. diplomatic compounds in Benghazi, Libya, that left four Americans dead.

After receiving death threats for her unwitting role in the film, Garcia asked Google to remove the content from YouTube. When the company declined, Garcia sued in federal district court, claiming that the film’s presence on YouTube violated her copyright interest. The district court refused to grant a preliminary injunction, finding that Garcia had granted Nakoula an implied license to use her performance, but the 9th Circuit granted the injunction, held that she likely owned an independent and copyrightable interest in her performance in the film, and ordered Google to take down the trailer for the movie. In November, the full 9th Circuit voted to rehear the case en banc with 11 members, vacating the prior opinion but leaving the injunction in place.

Dougherty argued that the 9th Circuit’s first decision was consistent with longstanding principles of U.S. copyright law.

“There is no basis in our copyright law for denying copyright to Garcia,” he said. “The plaintiff does not contest that the director contributed copyrightable elements. Most films are made by professionals with work-for-hire agreements. Absent that, actors typically grant an implied license that was exceeded in this case by use in a very different film.”

But Band called the 9th Circuit’s first ruling troubling.

“The harm alleged by Garcia is not really a copyright issue,” he said. “On the basis of fleeting de minimis footage, a sweeping injunction was issued that Google needed to affirmatively seek out anywhere the clip was in the whole world. The idea of independent authorship becomes very problematic—who can enjoin a film until their clip is edited out?”

Following their discussion, Dougherty and Band took questions from the students, faculty, and practitioners in attendance.


The en banc panel heard arguments in Garcia v. Google, Inc. in December. Their ruling is expected later this year.