Copyright

A Performance Is Not a Work: Garcia v. Google and the Author Behind the Camera

The en banc Ninth Circuit rejected an actress's claim to copyright in her brief filmed performance, holding that an individual acting contribution does not create a separately ownable work.

September 22, 2025
An actress performing in front of a film camera and crew on a soundstage
Garcia v. Google asked whether an actress owned a copyright in her five-second performance — and the en banc Ninth Circuit said the work belongs to the filmmaker, not the player. Shutterstock
Educational content, not legal advice. This article explains general legal concepts. It does not create an attorney–client relationship. For your specific situation, consult a licensed attorney.

In Garcia v. Google, Inc., No. 12-57302 (9th Cir. May 18, 2015) (en banc), the United States Court of Appeals for the Ninth Circuit, sitting en banc, held that an actress does not hold an independent copyright in her individual performance within a film, and on that basis dissolved an extraordinary order that had forced YouTube to take down the inflammatory video Innocence of Muslims. Writing for the majority, Chief Judge Alex Kozinski reversed a divided three-judge panel that had recognized a copyright interest in the performance and ordered a takedown. The en banc court vacated the preliminary injunction, holding both that the copyright claim was too weak to support it and that the takedown amounted to an unconstitutional prior restraint on speech. The decision is a leading modern authority on what counts as an authored “work” and who owns the building blocks of a motion picture.

At a glance

  • Case: Garcia v. Google, Inc., No. 12-57302 (9th Cir. May 18, 2015) (en banc), reversing a three-judge panel and the appeal from the U.S. District Court for the Central District of California’s denial of a preliminary injunction.
  • Issue: Whether an actress’s brief, individually delivered performance in a film constitutes a copyrightable “work” she owns, such that she could enjoin distribution of the film.
  • Holding: No. An individual acting performance is not a separately copyrightable work; treating it as one would fragment a single film into countless overlapping copyrights. The injunction was also a classic prior restraint that the thin copyright claim could not justify.
  • Why it matters: The ruling confirms that a motion picture is generally a single unitary work authored by its filmmakers, not a patchwork of performer-owned copyrights, and it cabins the use of copyright to suppress speech.
  • Left open: Whether and how a performer might secure rights by contract, work-made-for-hire status, or joint authorship; and the boundaries of performance-based “related rights” that some other countries recognize.

How a five-second performance reached the en banc court

Cindy Lee Garcia answered a casting call for a film she was told would be an adventure movie called Desert Warrior. She was paid roughly five hundred dollars and filmed for a few days, delivering about five seconds of dialogue. The producer, Mark Basseley Youssef, later repurposed her footage into Innocence of Muslims, an anti-Islamic video, dubbing over her lines so that she appeared to ask a demeaning question about the Prophet Muhammad. When the clip was uploaded to YouTube, it sparked international outrage and violence, and Garcia received death threats.

Garcia sued Google (YouTube’s owner), seeking to have the video removed. Her theory was novel: she argued that she owned a copyright in her own performance and that YouTube’s hosting of the film infringed it. The district court denied a preliminary injunction. A divided Ninth Circuit panel reversed, with Judge Kozinski’s panel opinion holding that Garcia likely had a copyright interest in her performance and ordering YouTube to take down all copies — an order the studio and free-speech advocates attacked as unprecedented. The full court took the case en banc and reversed.

A motion picture is one work, authored by the filmmaker

The en banc majority began with the copyrightability question, because an injunction requires a likelihood of success on the merits. To enjoy copyright, a contribution must be both an original work of authorship and fixed in a tangible medium by or under the authority of the author. Garcia’s performance, the court reasoned, failed to qualify as a separate “work.”

Two problems were fatal. First, Garcia was not the author or fixer of any work. She did not write the dialogue, operate the camera, or direct the scene; the filmmaker did, and the filmmaker fixed the footage. An actor who merely performs lines and direction supplied by others is, in the ordinary case, not the author of an independent copyrightable work but a contributor to the director’s work. Second, and more practically, the court warned that recognizing a copyright in each performance would be a “logistical and legal nightmare,” “splintering a movie into many different works” — potentially thousands per film — “even in the absence of an independent fixation.” Casts, crews, and extras could each assert overlapping copyrights, making films almost impossible to distribute or clear.

The court drew support from the Copyright Office, which had refused to register Garcia’s claim, reasoning that the Office’s longstanding practice does not treat an individual actor’s performance as a separately registrable work; performances are part of the integrated motion picture. The majority gave that administrative position considerable weight. The upshot is a strong reaffirmation that, absent a contract or work-made-for-hire arrangement allocating rights, a film is a single, unitary work whose authorship belongs to those who conceive and fix it — not a mosaic of performer-held copyrights.

Even assuming some sliver of a copyright interest, the majority held the takedown order could not stand because it operated as a prior restraint on speech. The film, however offensive, addressed a matter of intense public concern, and an order compelling its removal from the internet is among the most serious First Amendment intrusions a court can impose. The “heavy presumption” against prior restraints, the court held, could not be overcome by a “doubtful” copyright claim to a five-second performance. Garcia’s genuine injuries, the majority acknowledged, sounded in other areas of law — fraud, right of publicity, and emotional-distress doctrines — not copyright. The court declined to let copyright be retrofitted into a remedy for misappropriation of a performer’s likeness and reputation.

A dissent objected that the majority undervalued the creative spark in an actor’s performance and left Garcia without effective relief against a film that endangered her life. That tension — between the integrity of unitary film copyright and the dignity interests of individual performers — runs through the academic literature the case spawned, including proposals to recognize a distinct “related right” in performances of the kind found in some foreign systems.

Open questions

  • Could a performer ever own a performance? The court left room for rights secured by contract or established through work-made-for-hire or joint-authorship doctrines; what it rejected was an automatic, default copyright in the performance itself.
  • What about fixation by the performer? The majority emphasized that Garcia neither authored nor fixed a work, suggesting the analysis might differ for self-fixed performances — though the splintering concern would remain.
  • Is a “related right” the better fix? The decision invites legislative or scholarly attention to whether performers need a sui generis right, separate from copyright, to address misuse of their performances.

Implications

  • For filmmakers and distributors: The ruling protects chain of title. A movie is generally one work owned by its makers, so performers and crew do not hold blocking copyrights absent agreement.
  • For actors and performers: Copyright will rarely protect a performance standing alone. Protection comes from contracts (including guild agreements and personal-rights clauses), the right of publicity, and fraud or defamation law — not from claiming authorship of the film.
  • For platforms: The case reinforces that copyright injunctions touching matters of public concern face the prior-restraint doctrine, narrowing copyright’s use to suppress controversial content.
  • For drafters: Productions should secure written releases and, where appropriate, work-made-for-hire or assignment language from performers — both to confirm ownership and to forestall Garcia-style theories.

Frequently asked questions

Did the court say actors can never have any rights in their performances? No. It held that an actor does not automatically own a separate copyright in a performance embedded in someone else’s film. Performers can still acquire rights by contract and may have remedies under right-of-publicity, fraud, and related doctrines.

Why did the First Amendment matter in a copyright case? Because Garcia sought a court order removing a video about a matter of public concern from the internet. Such orders are prior restraints, which the Constitution disfavors. A weak copyright claim could not overcome that heavy presumption.

What should Garcia have done instead? The majority suggested her injuries fit other legal theories — fraud (she was deceived about the film’s nature), right of publicity, and emotional-distress claims — rather than copyright, which does not exist to remedy the misuse of a performer’s likeness.

Authorities and sources