‘Innocence of Muslims’ Copyright Decision Highlights Scope of Moral Rights: Canadian vs. US Protections

Robert Kalanda, B.A. (Hons.), J.D.Injunction & Specific Performance, Intellectual Property0 Comments

A recent high-profile United States copyright decision has highlighted the limited scope of protection granted to an artist’s “moral rights” in their creations in the United States, rights which are given broader protections in other countries, including Canada.

Court Rejects Actor’s Copyright Claim

This week, the 9th Circuit Court of Appeals in the United States issued an en banc decision reversing an earlier decision restraining YouTube from displaying the controversial film Innocence of Muslims. The injunction was based on the copyright claim of actress Cindy Lee Garcia, whose five-second appearance in the film was based on misrepresentations to her that an entirely different film was being produced. Her controversial lines were dubbed over her appearance in post-production without her permission. The Court initially held that Garcia did not sign away her copyright to her performance, and therefore could make a valid copyright infringement claim regarding her performance in the film, and granted an initial injunction against YouTube to prevent it from hosting the film, later revised to allow the publication of the video with Garcia’s performance removed.

The en banc Court reversed that decision, finding that Garcia could not claim an independent copyright interest over the film, reasoning that to allow such granularity to copyright claims would entitle every cast and crew member of a production to claim a proprietary interest in the final work, which could not be the case under copyright law, and imposing a requirement to obtain written licenses from every possible extra, especially for low-budget productions, would be a practical impossibility. The Court held that Garcia could not claim copyright over the film as a whole, and that her claim was too attenuated from the scope of copyright protections. She could not, therefore, restrict the film’s publication or dissemination. The Court also noted potential freedom of expression issues, in that granting an injunction against the publication of political speech does not generally accord with US free speech principles.

The decision was not unanimous, however, and the judge originally granting the injunction maintained his dissent. The dissenting judge reasoned that the majority’s haste to protect the interests of large movie producers ignored the fact that Garcia’s performance met the essential elements of a copyrightable work, and she had not assigned that copyright in writing to anyone else – he called this analysis “Copyright 101”. Therefore, he reasoned, she should be entitled to restrict the unauthorized publication of her work.

Whether the majority or the minority is correct in their interpretation of Garcia’s ability to claim a proprietary interest in her performance, Garcia’s claims may have had a different outcome had Garcia been able to assert a moral rights claim.

Moral Rights

The specific actions protected under moral rights varies from country to country, but generally speaking moral rights will protect the original creator’s right to be associated with the work, including under any preferred pseudonym, and the right to ensure that the “integrity” of the work is maintained – that is, the work is not distorted, mutilated, modified, or is associated with some other product, service, cause, or institution that might harm the reputation and honour of the creator. In many countries, including Canada, moral rights cannot be assigned along with the actual copyright, though in Canada moral rights can be contractually waived in advance.

However, the United States does not have such broad protections for moral rights. In fact, as noted by the majority in its decision, moral rights are only extended to limited works of visual art such as paintings and drawings, and otherwise United States copyright law does not generally recognize moral rights for artists. Therefore, while the Court sympathized with Garcia’s situation, she did not have any remedy under United States copyright law. The Court did not address Garcia’s other tort-based causes of action against the producer, since the copyright claim was the only issue raised for the purposes of the injunction against YouTube.

Summary

Though an oft-forgotten and rarely enforced right, creators of works should remain mindful of their moral rights, even when they have sold the copyrights to the works, and be equally mindful of how those rights may differ internationally.

If you have a copyright issue that you would like to discuss, contact us for an initial consultation.


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About the Author
Robert Kalanda, B.A. (Hons.), J.D.

Robert Kalanda, B.A. (Hons.), J.D.

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