The Ninth Circuit today held en banc that an actor in a movie does not have a copyright interest in his or her performance.  In February 2014, a divided panel of the Ninth Circuit overruled the district court and found that an actor in a controversial film about the prophet Mohammed had a copyright interest in her performance. The earlier panel, headed by Judge Kozinski, entered a preliminary injunction in favor of the plaintiff and against Google, requiring Google to remove the plaintiff’s performance from YouTube.

Of course, this ruling touched off a wave of criticism since never before had a court held that an actor performing in another person’s film could be considered an author of the work and therefore an owner of the copyright.  Although the plaintiff below had faced death threats resulting from her role, many practitioners questioned whether copyright law was an appropriate basis for the court’s ruling.

As expected, in today’s opinion, the En Banc Panel rejected the reasoning of the earlier panel and held that actors do not enjoy a copyright interest in their work – primarily because they do not fix their “acting performance in a tangible medium, as required by 17 U.S.C. § 101.”  Thus, the actor cannot be the author or owner of the work since the fixation is done by the film crew, not the performers.

The En Banc Panel went on to reject the notion that actors in a film enjoy privacy right protections, any “right to be forgotten”  or any protection from emotional distress arising from copyright law.  Although the En Banc Panel suggested that privacy law might afford some relief to the plaintiff, it expressed no view on that subject.

Judge Kozinski dissented.