Will Copyright Law Stem the Tide of Multimedia Advertising?

07/02/2014 / Alex Schoephoerster and Ryan Smith

The modern world is obsessed with multimedia; everywhere you look people are tweeting, checking Facebook, watching television, or simply surfing the internet. In each case, the user is subjected to an overwhelming number of advertisements. Businesses have a prominent link into consumers’ lives through multimedia but copyright law may have recently presented a significant obstacle to the practice of multimedia advertising. On February 26, 2014, the Court of Appeals for the Ninth Circuit issued a decision that could dramatically hinder the ability of a business to advertise via multimedia.

In Garcia v. Google, Inc., the court granted a preliminary injunction requiring Google to take down an anti-Islamic film featuring Cindy Lee Garcia’s brief acting performance that was originally intended for an unrelated work. Granting the injunction, Chief Judge Kazinski explained that Garcia was likely to succeed in claiming a protected, independent interest in her performance. While her acting contribution was not critical to the intended work, the court found that her individual creativity, including body language, facial expression, and reactions to other actors and elements of a scene, were sufficient for a copyrightable interest. The court clarified that an actor’s performance, when fixed, is copyrightable when it evinces a “minimal degree of creativity,” even when the actor’s speaking is dubbed over or the performance lacks speaking altogether.

The ruling is a cautionary tale with far-reaching potential even into the business world. Businesses often use actors in advertising through commercials, radio ads, social media, newspapers or magazines, and the list goes on. From a big-time commercial featuring the Minnesota Twins’ Joe Mauer to an extra in a magazine advertisement, businesses may be at the mercy of each individual that provides “a minimal degree of creativity.” Even the makeup artist, hair stylist, or costume designer may potentially claim a copyrightable interest.

Each person with an independent interest could sue for injunctive relief preventing the use of the advertisement or they could leverage it for royalty fees. With such a fragmented picture of protectable interests, complications with advertising are bound to occur potentially resulting in an “impenetrable thicket of copyright” in the words of Judge Kozinski. Businesses must use caution going forward to avoid the interferences that Garcia v. Google Inc. has presented to advertising.