Netflix, Facebook and Twitter are among the companies siding with Google as it defends itself against an actress’ effort to force YouTube to remove the inflammatory “Innocence of Muslims” video that sparked protests in the Muslim world.
The 9th Circuit Court of Appeals has scheduled an en banc hearing on Dec. 15 in actress Cindy Lee Garcia’s lawsuit to obtain an injunction against YouTube. She claimed that she had a copyright interest in her performance, even though she had only a minor role in the movie, and that YouTube didn’t have her permission to have it posted on their site.
Garcia said that she received death threats as the video sparked protests. She said that she was told that she was performing in a movie called “Desert Warrior,” yet the movie’s writer and producer, Mark Basseley Youssef, instead turned it into “Innocence of Muslims,” with her voice dubbed over so that she appeared to be asking, “Is your Mohammed a child molester?”
But in an amicus brief filed earlier this week, Netflix warned that, were the court to accept Garcia’s legal rationale, “licensed distributors such as Netflix face the threat of costly suits seeking injunctions preventing those legitimate distributors from exhibiting films and television shows to millions of consumers.”
Netflix argues that Garcia’s rationale turns the concept of joint authorship on its head. A joint author has no power to prevent the other author from licensing their work, but is entitled only to an accounting of his or her share of the proceeds.
“Under Ms. Garcia’s unfixed, non-joint author view of copyright, however, any actress or background singer or spear carrier is granted veto power over the use of copyrighted works — including, as sought in this case, outright injunctions against their performance, distribution or reproduction — far beyond the rights afforded either a coauthor of a joint work,” Netflix’s attorneys, Michael H. Page and Joseph Gratz, wrote. “It is a view of copyright law under which Keith Richard cannot enjoin Mick Jagger’s use of ‘You Can’t Always Get What You Want’ in a car commercial, but any member of the boys’ choir in the background can.”
Facebook, Gawker Media, Twitter, Tumblr and Yahoo were among the other companies who signed on to briefs siding with Google. Film Independent, the Intl. Documentary Assn., Fredrik Gertten and Morgan Spurlock also lent their names to an amicus brief, noting that Garcia “was seriously harmed by a filmmaker who recklessly ignored her safety. But, in response, she urges this court to create unprecedented standards detrimental for the rest of us.”
In a 2-1 ruling, a panel of the 9th Circuit sided with Garcia, with the majority disturbed by the idea that Garcia had no control over how her performance was being used. But earlier this month, the 9th Circuit agreed to rehear the case in an en banc hearing.
Public Citizen filed an amicus brief siding with neither Google nor Garcia. They argued that Garcia should pursue claims in state court against the filmmakers rather than federal copyright claims.