This will hardly come as a surprise, but Cindy Lee Garcia -- the actress who appeared in 5 seconds of the 13-minute "trailer" known as "Innocence of Muslims" and somehow convinced the 9th Circuit Appeals court to say she had a copyright interest
in the film, allowing her to demand a widespread and highly questionable
order to force Google to take down all copies of the video on its platforms -- doesn't think there's anything wrong with the ruling or with the 9th Circuit's denial
of Google's request to stay the order until the case could be reconsidered. As we noted earlier, the court has asked for briefs on whether or not it should reconsider the request
for the stay (prior to even deciding if it should reconsider the entire ruling). Garcia's lawyer, Cris Armenta has filed their brief
on this issue, and as with many earlier filings, it is problematic on many levels.
In short, though, she of course argues that the original ruling was correct, that her "copyright" has been infringed and that any ruling to the contrary leaves her in great danger. Despite plenty of copyright lawyers and experts reacting in horror to the original ruling, she insists it's obvious that every actor in a film gets a copyright in their own performance. As for the fact that the Copyright Office itself rejected her copyright claim
saying that "longstanding practices do not allow a copyright claim by an individual actor or actress in his or her performance contained within a motion picture," Garcia says that the court should just ignore all that bluster. I mean, really, who does the Copyright Office
think it is, anyway? Actually, she first challenges the "questionable provenance" of the Copyright Office's rejection of her copyright, since she says Google got a copy before she did, and then that it apparently doesn't include a statement from the Copyright Office that it "is a true and correct copy of the record in question." Even then, she begs the court to ignore the Copyright Office.
Further, this court should not defer to the letter because it is
inconsistent with the Copyright Office's previous interpretation of the
Copyright Act.... Previously, the Copyright Office interpreted the Copyright Act much differently than it does now. As recently as 2010, the Office explicitly stated that performances consisting of "the art of imitating or acting out situations, characters, or other events" are copyrightable as pantomime.
Of course, that's a totally different issue. Yes, the Copyright Office says that pantomimes are copyrightable (a different issue that has its own problems), but that's unrelated to the question of whether an actor in a motion picture retains the copyright in their performance. Instead, Garcia tries to reverse this question, by saying that nowhere has the Copyright Office ever said that actors do not
get a copyright in their performance. Because anything the Copyright Office doesn't say is clearly what they allow.
With respect to the issue of motion pictures, nowhere does the Compendium state that actors who are not employees and who have not transferred the rights in their work are not entitled to copyright protection.... Indeed, the Compendium only states that a film's producer is the "author" for purposes of copyright in situations where the participants are employees or have entered into work-for-hire agreements. If the Office's "longstanding practices" truly forbade an actor who never assigned the rights in her performance from asserting copyright, the Office would have mentioned those practices before now.
Of course, the other problem with Garcia's filing is that it doesn't actually focus on the issue at hand. The Court specifically asked that the filings focus on the question of whether or not an en banc panel should rehear the question of a stay for the injunction. Garcia's filing focuses on the overall ruling, not the specifics of the stay, and why the initial injunction can't be stayed until further proceedings occur. That said, given the way Kozinski has handled this so far, who knows what will happen.