Like a bad 1980s movie, the most infamous copyright decicion of the year has now spawned a sequel. The Ninth Circuit Court of Appeals has been considering since early March whether to rehear en banc its decision in favor of Cindy Lee Garcia concerning her performance in the movie Innocence of Muslims. Plaintiff Cindy Lee Garcia, one of the actresses in the video, claimed that she had no idea what the movie was to turn out to be when she performed her scenes, and that the Islamophobic audio had been dubbed over whatever she actually said when filming. She then sued, arguing that her performance was an independently copyrightable work, such that the producers needed her permission to distribute and reproduce it. The complaint was universally disregarded by copyright experts when it was filed. This reaction was so nearly unanimous because Garcia’s performance (which, it was later learned, had been denied registration by the Copyright Office) seemed clearly to be a work for hire, or a joint work—if Garcia’s performance even met the other requirements for copyright.
The United States Copyright Office solicited public comment last year on possible droite de suite, or resale royalty legislation. As addressed previously, state law attempts to regulate artists’ rights to resale royalties have been struck down as unconstitutional. Among the issues that the Copyright Office grappled with is the basic question of incentive: if a copyright royalty were paid on sales subsequent to the first sale, what effect does that have on the economic incentive to create art? Who benefits? Who is harmed?