The 9th Circuit Court of Appeals has reversed a prior ruling and sided with Google in the ongoing dispute over whether YouTube was obligated to take down the inflammatory “Innocence of Muslims” video.
Actress Cindy Lee Garcia, who has a small part in the movie, said she received death threats for appearing in it. She said that she wasn’t aware that the movie would be edited to appear anti Muslim and blasphemous against Mohammed, sparking protests in the Middle East in 2012.
She sued YouTube to take down the video, but the site refused. However, last year a panel of the 9th Circuit ruled 2-1 in her favor, siding with her argument that her performance, albeit just five seconds long, gave her a copyright interest in the project and that she was entitled to a preliminary injunction.
But an en banc panel of the 9th Circuit reversed that ruling. In an opinion issued on Monday, Judge Margaret McKeown wrote that the injunction against Google was “unjustified.”
“Treating every acting performance as an independent work would not only be a logistical and financial nightmare, it would turn cast of thousands into a new mantra: copyright of thousands,” she wrote.
She wrote that even though Garcia was “bamboozled” by the producer of the video, Nakoula Basseley Nakoula, she was seeking “to impose speech restrictions under copyright law meant to foster rather than repress free expression. Garcia’s theory can be likened to ‘copyright cherry picking,’ which would enable any contributor from a costume designer down to an extra or best boy to claim copyright in random bits and pieces of a unitary motion picture without satisfying the requirements of the Copyright Act.”
Judge Alex Kozinski, who wrote the initial appellate ruling last year, dissented. He concluded that Garcia’s performance met all the requirements for copyright protection and that the claim was likely to succeed.
He wrote that the 9th Circuit majority “makes a total mess if copyright law, right here in the Hollywood Circuit.”
“In its haste to take Internet service providers off the hook for infringement, the court today robs performers and other creative talent rights Congress gave them,” he wrote. “I won’t be a party to it.”
He added, “If Garcia’s scene is not a work, then every take of every scene of say, ‘Lord of the Rings’ is not a work, and thus not protected by copyright, unless and until the clips become part of the final movie. If some dastardly crew member were to run off with a copy of the Battle of Morannon, the [crew member] would be free to display it for profit until it was made part of the final movie.”
But McKeown cited the Copyright Office’s rejection of Garcia’s attempt to gain copyright protection for her performance. The Copyright Office determined that a motion picture is a “single integrated work,” and that her performance couldn’t be registered separate from the project. She noted that the Supreme Court has ruled that the “author is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection.”
McKeown also wrote that privacy laws, not copyright, “may offer remedies tailored to Garcia’s personal and reputational harms. On that point, we offer no substantive view.”
The ruling last year surprised Google and other First Amendment advocates, who warned that should it stand it would turn the concept of joint authorship on its head, allowing even background performers veto power over the licensing of copyrighted works. Netflix, Yahoo and Facebook were among the tech companies who filed amicus briefs siding with Google, along with independent filmmakers.
SAG-AFTRA and other performers’ unions also weighed in. While not rendering judgment on whether Garcia held a copyright interest in her performance, they did note that even short performances have been sufficiently original so as to warrant protection.
Last year, the 9th Circuit panel also ordered YouTube to remove the video from its site, although the order was later limited to the portions of the video featuring Garcia. In a separate opinion, Judge Stephen Reinhardt blasted that order, writing that “this is a case in which our court not only tolerated the infringement of fundamental First Amendment rights but was the architect of that infringement.”
A YouTube spokeswoman said, “We have long believed that the previous ruling was a misapplication of copyright law. We’re pleased with this latest ruling by the Ninth Circuit.”
Garcia’s attorney did not immediately return a request for comment.