The majority's newfangled definition of "work" is directly contrary to a quarter-century-old precedent that has never been questioned, Effects Associates, Inc. v. Cohen, 908 F.2d 555 (9th Cir. 1990). There, we held that a company that created special effects footage during film production retained a copyright interest in the footage even though it became part of the film. Id. at 556–58; see also Oddo v. Ries, 743 F.2d 630, 633–34 (9th Cir. 1984). The majority tries to distinguish Effects Associates by arguing that the footage there was a "standalone work[] that [was] separately fixed and incorporated into a film." Maj Op. 22 n.13. But Garcia's performance was also "separately fixed and incorporated into" Innocence of Muslims. Why then are the seven shots "featuring great gobs of alien yogurt oozing out of a defunct factory" interspersed in The Stuff, 908 F.2d at 559, any more a "standalone work" than Garcia's performance? Youssef wasn't required to use any part of Garcia's performance in the film; he could have sold the video clip to someone else. The clip might not have had much commercial value, but neither did the special effects scenes in Effects Associates. Nothing in the Copyright Act says that special effects scenes are "works" entitled to copyright protection but other scenes are not. And what about scenes that have actors and special effects? Are those scenes entitled to copyright protection (as in Effects Associates), or are they denied copyright protection like Garcia's scene?
II
A. The majority also seems to hold that Garcia is not entitled to copyright protection because she is not an author of the recorded scene. According to the majority, Garcia can't be an author of her own scene because she "played no role in [her performance's] fixation." Maj. Op. 22–23.
