Actress Has No Copyright in Controversial <i>Muslims</i> Film

The work of an individual performer in a film isn't protected by copyright law, the U.S. Court of Appeals for the Ninth Circuit decided when it ruled in an 11-judge en banc decision that actress Cindy Lee Garcia couldn't use copyright law to force Google to remove a five-second clip of the film Innocence of Muslims from YouTube and other Internet platforms. Garcia v. Google, 12-57302. The en banc ruling reversed last year's controversial 2-1 judicial decision by the Ninth Circuit.

Chief Judge Alex Kozinski's 2014 opinion ordering the clip's removal “gave short shrift to the First Amendment values at stake,” Circuit Judge M. Margaret McKeown wrote in the recent en banc ruling. “The mandatory injunction censored and suppressed a politically significant film based upon a dubious and unprecedented theory of copyright,” she wrote. “In so doing, the panel deprived the public of the ability to view firsthand, and judge for themselves, a film at the center of an international uproar.”

Chief Judge Kozinski responded in a dissent that accused the court's majority of making “a total mess of copyright law.”

Backround

Cindy Lee Garcia demanded that the Innocence of Muslims clip be taken down after she began receiving death threats from viewers offended by the film's portrayal of the Islamic prophet Mohammed. Garcia claimed she was tricked into appearing in an offensive film that portrayed Mohammed as a murderer and pedophile. She said she received $500 for a brief appearance in what was supposed to be an action-adventure thriller called Desert Warrior , but that film producers later dubbed over her lines to make it seem as if she were asking, “Is your Mohammed a child molester?”

The director, Mark Basseley Youssef, posted a 14-minute trailer on YouTube in June 2012, which was then translated into Arabic. The result was wide-spread outrage and violent protests across the Middle East'' an Egyptian cleric issued a fatwa calling for the death of anyone involved in the film, Garcia received multiple death threats, and politicians linked the film to the Sept. 11, 2012, attack on the U.S. Consulate in Benghazi, Libya.

Ninth Circuit: Actress Didn't Meet Standard

The Ninth Circuit's en banc ruling said Garcia failed to show that the law and facts “clearly favor” her position, a heightened standard imposed in this case because granting an injunction would force Google to take the drastic measure of removing copies of the film. The U.S. Copyright Office already had rejected Garcia's copyright application, saying individual actors can't copyright performances contained within a motion picture. Circuit Judge McKeown agreed, adding that to grant individual rights to actors and actresses would splinter a movie into several different artistic works, creating a “legal morass.” She used the Lord of the Rings trilogy as an example, which used a cast of 20,000 extras.

“Treating every acting performance as an independent work would not only be a logistical and financial nightmare,” Judge McKeown wrote, “it would turn cast of thousands into a new mantra: copyright of thousands.”

She also noted copyright belongs to a work's author, or the person who translated an idea into a tangible product. In this case that distinction goes to the director and crew who recorded Garcia's performance, not Garcia.

Judge McKeown took issue with Garcia's argument that, without an injunction, she would suffer irreparable harm in the form of damage to her reputation, unfair forced promotion of a hateful film and possibly even death. Judge McKeown said the court takes those threats seriously, but that copyright law is intended to protect the value and marketability of an author's work, not the author's personal safety.

Privacy law might provide a remedy for Garcia in this case, Judge McKeown suggested. Likewise, Judge McKeown suggested Garcia might have had better luck if she pursued an injunction using right of publicity or defamation claims.'And in a footnote, the circuit judge added Garcia may have a contract claim, as the actress recalls signing a document related to the film's production.

Dissent: Robbing Performers of Rights

In his dissent, Chief Judge Kozinski wrote that Garcia's performance met all the requirements for copyright protection. “In its haste to take Internet service providers off the hook for infringement, the court today robs performers and other creative talent of rights Congress gave them,” he wrote. Under the majority's reasoning, Judge Kozinski wrote, scenes of a movie would not be protected by copyright until they become part of the final product. A “dastardly crew member” would be free to run off with a copy of a scene and display it for profit until the movie was finished.

Circuit Judge McKeown struck back, calling Kozinski's dissent hyperbole and accusing him of raising a false alarm. “Substituting moral outrage and colorful language for legal analysis,” she wrote, “the dissent mixes and matches copyright concepts.”

Two more appellate judges weighed in. Ninth Circuit Judge Paul Watford concurred with the majority's result, but said they ruled too broadly, unnecessarily crafting new copyright rules. Instead, Judge Watford wrote, he would have bypassed the copyright issue and rejected Garcia's injunction because she hadn't shown harm: The fatwa will remain in place whether or not Innocence of Muslims is on YouTube, Judge Watford wrote.

Circuit Judge Stephen Reinhardt wrote separately to express his frustration with the court's refusal last year to grant an immediate, emergency rehearing en banc. “By leaving in place the [2-1] panel's unprecedented gag order for well over a year,” Judge Reinhardt wrote, “we surrendered to the threats of religious extremists who were offended by the film.”

Hogan Lovells partner Neal Katyal represented Google. Garcia was represented by Los Angeles attorney M. Cris Armenta.

Marisa Kendall writes for The Recorder, the San Francisco-based ALM sibling publication of Entertainment Law & Finance.

The work of an individual performer in a film isn't protected by copyright law, the U.S. Court of Appeals for the Ninth Circuit decided when it ruled in an 11-judge en banc decision that actress Cindy Lee Garcia couldn't use copyright law to force Google to remove a five-second clip of the film Innocence of Muslims from YouTube and other Internet platforms. Garcia v. Google, 12-57302. The en banc ruling reversed last year's controversial 2-1 judicial decision by the Ninth Circuit.

Chief Judge Alex Kozinski's 2014 opinion ordering the clip's removal “gave short shrift to the First Amendment values at stake,” Circuit Judge M. Margaret McKeown wrote in the recent en banc ruling. “The mandatory injunction censored and suppressed a politically significant film based upon a dubious and unprecedented theory of copyright,” she wrote. “In so doing, the panel deprived the public of the ability to view firsthand, and judge for themselves, a film at the center of an international uproar.”

Chief Judge Kozinski responded in a dissent that accused the court's majority of making “a total mess of copyright law.”

Backround

Cindy Lee Garcia demanded that the Innocence of Muslims clip be taken down after she began receiving death threats from viewers offended by the film's portrayal of the Islamic prophet Mohammed. Garcia claimed she was tricked into appearing in an offensive film that portrayed Mohammed as a murderer and pedophile. She said she received $500 for a brief appearance in what was supposed to be an action-adventure thriller called Desert Warrior , but that film producers later dubbed over her lines to make it seem as if she were asking, “Is your Mohammed a child molester?”

The director, Mark Basseley Youssef, posted a 14-minute trailer on YouTube in June 2012, which was then translated into Arabic. The result was wide-spread outrage and violent protests across the Middle East'' an Egyptian cleric issued a fatwa calling for the death of anyone involved in the film, Garcia received multiple death threats, and politicians linked the film to the Sept. 11, 2012, attack on the U.S. Consulate in Benghazi, Libya.

Ninth Circuit: Actress Didn't Meet Standard

The Ninth Circuit's en banc ruling said Garcia failed to show that the law and facts “clearly favor” her position, a heightened standard imposed in this case because granting an injunction would force Google to take the drastic measure of removing copies of the film. The U.S. Copyright Office already had rejected Garcia's copyright application, saying individual actors can't copyright performances contained within a motion picture. Circuit Judge McKeown agreed, adding that to grant individual rights to actors and actresses would splinter a movie into several different artistic works, creating a “legal morass.” She used the Lord of the Rings trilogy as an example, which used a cast of 20,000 extras.

“Treating every acting performance as an independent work would not only be a logistical and financial nightmare,” Judge McKeown wrote, “it would turn cast of thousands into a new mantra: copyright of thousands.”

She also noted copyright belongs to a work's author, or the person who translated an idea into a tangible product. In this case that distinction goes to the director and crew who recorded Garcia's performance, not Garcia.

Judge McKeown took issue with Garcia's argument that, without an injunction, she would suffer irreparable harm in the form of damage to her reputation, unfair forced promotion of a hateful film and possibly even death. Judge McKeown said the court takes those threats seriously, but that copyright law is intended to protect the value and marketability of an author's work, not the author's personal safety.

Privacy law might provide a remedy for Garcia in this case, Judge McKeown suggested. Likewise, Judge McKeown suggested Garcia might have had better luck if she pursued an injunction using right of publicity or defamation claims.'And in a footnote, the circuit judge added Garcia may have a contract claim, as the actress recalls signing a document related to the film's production.

Dissent: Robbing Performers of Rights

In his dissent, Chief Judge Kozinski wrote that Garcia's performance met all the requirements for copyright protection. “In its haste to take Internet service providers off the hook for infringement, the court today robs performers and other creative talent of rights Congress gave them,” he wrote. Under the majority's reasoning, Judge Kozinski wrote, scenes of a movie would not be protected by copyright until they become part of the final product. A “dastardly crew member” would be free to run off with a copy of a scene and display it for profit until the movie was finished.

Circuit Judge McKeown struck back, calling Kozinski's dissent hyperbole and accusing him of raising a false alarm. “Substituting moral outrage and colorful language for legal analysis,” she wrote, “the dissent mixes and matches copyright concepts.”

Two more appellate judges weighed in. Ninth Circuit Judge Paul Watford concurred with the majority's result, but said they ruled too broadly, unnecessarily crafting new copyright rules. Instead, Judge Watford wrote, he would have bypassed the copyright issue and rejected Garcia's injunction because she hadn't shown harm: The fatwa will remain in place whether or not Innocence of Muslims is on YouTube, Judge Watford wrote.

Circuit Judge Stephen Reinhardt wrote separately to express his frustration with the court's refusal last year to grant an immediate, emergency rehearing en banc. “By leaving in place the [2-1] panel's unprecedented gag order for well over a year,” Judge Reinhardt wrote, “we surrendered to the threats of religious extremists who were offended by the film.”

Hogan Lovells partner Neal Katyal represented Google. Garcia was represented by Los Angeles attorney M. Cris Armenta.

Marisa Kendall writes for The Recorder, the San Francisco-based ALM sibling publication of Entertainment Law & Finance.