Google is fighting back against the 9th Circuit Court of Appeals’ unexpected ruling in favor of an actress who appeared in the “Innocence of Muslims” video that sparked protests in the Muslim world in 2012.
Late on Thursday the search giant filed a motion for a stay of the 9th Circuit’s order that it take down the video from YouTube. Google plans to file a motion for rehearing en banc.
Google warned that the 9th Circuit’s ruling will produce “devastating effects.”
“Under the panel’s rule, minor players in everything from Hollywood films to home videos can wrest control of those works from their creators, and service providers from YouTube will lack the ability to determine who has a valid copyright claim,” Google said.
They added that the panel’s order also “will gag their speech and limit access to newsworthy documents — categorically irreparable injuries.”
In an opinion issued by the 9th Circuit on Wednesday, 9th Circuit Chief Judge Alex Kozinski wrote that the plaintiff in the case, actress Cindy Lee Garcia, had established a likelihood of success on the merits of her claim that she “had an independent interest in the performance and that the filmmaker did not own an interest as a work for hire and exceeded implied license” to use footage of her.
Google said that it has complied with the court’s order to remove the video and copies of it, but “in light of the intense public interest in and debate surrounding the video, the video should remain accessible while Google seeks further review.”
In the 2-1 opinion, Kozinski noted that Garcia originally signed up to do a movie called “Desert Warrior,” but the film’s writer and producer, Mark Basseley Youssef, instead turned it in to “Innocence of Muslims,” with her voice dubbed over to that she appeared to be asking, “Is your Mohammed a child molester?”
After she saw the films and her image uploaded on YouTube and began receiving death threats, she filed takedown notices, but Google refused. She then filed suit seeking an injunction.
“While answering a casting call for a low-budget amateur film doesn’t often lead to stardom, it also rarely turns an aspiring actress into the subject of a fatwa,” Kozinski wrote.
Google, however, said that the implications of the ruling are far reaching. They noted that when Garcia is acting out Youssef’s script, she is performing a work, but the Copyright Act “draws a crisp distinction between that performance and the copyrightable work itself.”
“Under the panel’s view, an actor who appears in a video for five seconds has her own copyright in that work — a copyright that empowers her to demand that the entire video be scrubbed from the public sphere,” Google said. “But that rule would wreak havoc on movie studios, documentary filmmakers and creative enterprises of all types by giving their most minor contributors control over their products.”
Google added that it would add to the confusion in responding to takedown notices, as it would face the uncertainty of whether even a performer held a copyright interest in a project.