September 21st, 2012

Hollywood Reporter, Esq.

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How an ‘Innocence of Muslims’ Lawsuit Could Impact Hollywood (Analysis)

If an actress is able to get past any written agreement she signed and convince a judge that she worked on a film under fraudulent pretenses, more controversy could be around the bend.On Wednesday, Cindy Lee Garcia, an actress featured in the controversial film Innocence of Muslims, sued [3] for allegedly being deceived into working in a “hateful anti-Islamic production.”

The lawsuit against producer Sam Bacile (aka Nakoula Basseley Nakoula) has garnered headlines because the film sparked rioting throughout the Middle East and North Africa. And if there wasn’t a big political/religious dimension to the litigation, it would still command interest because of the inclusion of Google/YouTube as a defendant. Garcia demands that the web giant remove the film from the video site because it allegedly violates her publicity and privacy rights and is damaging her. Takedowns already are controversial. This lawsuit raises the stakes by questioning whether there are circumstances beyond copyright infringement that necessitate a video’s removal.

But there’s another aspect to this case that’s also important and could cause much trouble in Hollywood: the relationship between actors and producers.

When most people agree to do a job, and that job turns out to be different than what is first represented, there’s easy recourse: The person quits.

For actors, it’s not that simple. The work might happen on set, but the performance happens onscreen, after producers, directors and editors tinker with the results of the footage shot. Catch an actor in a candid moment, and many will admit to having had a bad performance saved in postproduction — or complain of a good job ruined by all the tinkering.

Garcia is upset because the film didn’t turn out the way she expected. This is certainly a highly unusual situation. She says she was led to believe via a casting notice that she was working on an “historical Arabian Desert adventure film” and it turned into Innocence of Muslims, which she says caused her to lose her job, contact with her grandchildren and her sense of security. (The film has only been published [4] as a 14-minute “trailer,” so it’s hard to say what it is at this point.)

But it’s also not hard to re-imagine her lawsuit under different guises.

She says in the complaint [6]:

“Defendant Bacile’s representations that he intended to make an ‘adventure’ film, and that Plaintiff would be depicted as a concerned mother, were false. Instead, Defendant Bacile made an anti-Islam propaganda film, in which Plaintiff is falsely made to appear to accuse the founder of the Islamic religion of being a sexual deviant and child molester.”

Now imagine if the complaint said this:

“Defendant Paul Thomas Anderson’s representations that he intended to make a ‘buddy’ film, and that Plaintiff Joaquin Phoenix would be depicted as an up-and-comer, were false. Instead, Defendant Anderson made an anti-Scientology propaganda film (The Master), in which Plaintiff is falsely made to appear to be victim to a cult.”

Or maybe this:

“Defendant Jerry Bruckheimer’s representations that he intended to make an ‘adventure’ film, and that Plaintiff Jake Gyllenhaal would be depicted as a strong male lead, were false. Instead, Defendant made a film (Prince of Persia: The Sands of Time) that caused audiences to laugh at him.”

One of the big questions here is the latitude producers and directors have in straying from the script. How legally protected is something like editing? Perhaps the sacrosanctity of postproduction is not a given, and representations made during the casting process are paramount.

Of course, Hollywood lawyers have imagined such legal nightmares, albeit not the kind that cause anti-U.S. uprisings. That’s why actors typically are made to sign written agreements, which raises the single most glaring thing missing from Garcia’s lawsuit: There’s no mention of the contract she signed. What exactly did she waive rights to?

“Typically, a producer has the right to edit footage and leave an actor’s performance on the cutting-room floor,” says David Stern, an attorney at Jeffer Mangels Butler & Mitchell. “Nearly all acting agreements grant such rights to the producer and, further, bar the actor from seeking injunctive relief to stop the distribution and exhibition of a film. Even SAG acting agreements confer these rights to the producer. There is no duty to explain to an actor the political or societal implications of a project. In many films directed by Woody Allen, the actor does not get to see any portion of the script other than the actor’s lines.”

Other attorneys in Hollywood agree.

“Her best claim is false light because she agreed to perform a certain role and then her image was used for something else that damaged her,” says Bryan Sullivan at Early Sullivan Wright Gizer & McRae. “But it depends on what the contract says because the rights granted in them are typically broad and don’t give the actors much input.”

So the first thing that a judge probably would look at is Garcia’s contract. One of the things she’s suing for is violation of her publicity rights. If Garcia didn’t consent to the use of her image, the producer could be liable — not for an inflammatory film (free speech, naturally) but rather for professional negligence.

Assuming there is a contract with standard boilerplate language, Garcia probably will have a tough time winning this case — but maybe not an impossible one. As Sullivan suggests, there might be some wiggle room because of the unusual circumstances. The attorney adds that the key factors will be what was said about the script, what she knew and when she knew it.

If Garcia is able to convince a court that allegedly fraudulent pretenses should nullify whatever contract she signed, it could begin a slippery slope toward more claims like these in Hollywood. Nowadays, final cut goes to the person with the most bargaining power; in the future, it might really end up being with the person with the best lawyers.

Source: Eriq Gardner, Hollywood Reporter Esq.