February 26, 2014 11:02am PT by Eriq Gardner
'Innocence of Muslims' Actress Scores Huge Victory at Appeals Court
Innocence of Muslims actress Cindy Lee Garcia is being allowed to take on Google for refusing her demand to remove the controversial anti-Islamic film from YouTube. On Wednesday, the 9th Circuit Court of Appeals handed down a ruling with major implications for performers throughout Hollywood.
In her lawsuit, Garcia alleged that because she didn't sign a release, she owned a copyright in her performance. She argued that after she sent a takedown notice to Google's YouTube, the website had a legal obligation to remove the video.
In November 2012, a federal judge disagreed, rejecting an injunction on the basis that Garcia was unlikely to win her case. The judge's determination relied upon a prior 9th Circuit ruling, Aalmuhammed v. Lee, which concerned the 1992 Spike Lee film Malcolm X. In that case dealing with the question of joint authorship, the appeals court ruled that a movie is "intended by everyone involved with it to be a unitary whole."
Writing for the majority, 9th Circuit Chief Judge Alex Kozinski reverses the lower court judge, which will mean that YouTube will need to scrub its network of a film that incited protests throughout the world. (Here's the full ruling.)
"Just because Garcia isn’t a joint author of Innocence of Muslims doesn’t mean she doesn’t have a copyright interest in her own performance within the film," writes the judge. "Whether an individual who makes an independently copyrightable contribution to a joint work can retain a copyright interest in that contribution is a rarely litigated question. But nothing in the Copyright Act suggests that a copyright interest in a creative contribution to a work simply disappears because the contributor doesn’t qualify as a joint author of the entire work."
Google argued that Garcia didn't make a protectable contribution to the film because filmmaker Mark Basseley Youssef wrote the dialogue she spoke, managed all aspects of the production and later dubbed over a portion of her scene.
"But an actor does far more than speak words on a page," Judge Kozinski responds. Quoting a scholar, the judge says the actor must "live his part inwardly, and then … give to his experience an external embodiment."
Kozinski says an actor's fixed performance can be copyrightable if it evinces some creativity. "That is true whether the actor speaks, is dubbed over or, like Buster Keaton, performs without any words at all," he writes. "It’s clear that Garcia’s performance meets these minimum requirements."
The judge says that Garcia can claim copyright in her own contribution but not in "preexisting material" such as the words spelled out in an underlying script. The actress can assert a copyright interest in her portion of Innocence of Muslims, and Kozinski says that even if her contribution is minor, it isn't de minimis. "We need not and do not decide whether every actor has a copyright in his performance within a movie," writes the judge. "It suffices for now to hold that, while the matter is fairly debatable, Garcia is likely to prevail."
The judge then goes on to reject other theories that would preclude Garcia's claims, including that her performance was a work for hire, that she made an implied license when agreeing to perform, and for purposes of an injunction, that there was no showing of irreparable harm.
On the latter point, Garcia reported death threats after Innocence of Muslims came out, and it was blamed at one point for attack on the U.S. diplomatic mission in Benghazi, Libya, that left four Americans dead, including Ambassador Chris Stevens.
"This is a troubling case," writes Kozinski. "Garcia was duped into providing an artistic performance that was used in a way she never could have foreseen. Her unwitting and unwilling inclusion in Innocence of Muslims led to serious threats against her life. It’s disappointing, though perhaps not surprising, that Garcia needed to sue in order to protect herself and her rights."
The judge continues, "But she has sued and, more than that, she's shown that she is likely to succeed on her copyright claim, that she faces irreparable harm absent an injunction and that the balance of equities and the public interest favor her position. The district court abused its discretion in finding otherwise."
The case has been remanded, and now Google may be facing high copyright penalties by not removing the film swiftly. The Digital Millennium Copyright Act provides safe harbor from liability only when ISPs respond expeditiously to notices from copyright owners.
"Ordering YouTube and Google to take down the film was the right thing to do," says Garcia's attorney M. Cris Armenta. "The propaganda film differs so radically from anything that Ms. Garcia could have imagined when the director told her that she was being cast in the innocent adventure film Desert Warrior that had she known the true nature of the project, she never would have agreed to participate."
As a California federal judge picks up this case once again, the ruling provides the best evidence ever of why it's important for producers to get signed waivers from actors and all those who are offering creative contributions. The ruling could open up the door to many future disputes from contributors in joint works.
Google's options could include seeking an en banc review at the 9th Circuit or going to the Supreme Court. "We strongly disagree with this ruling and will fight it," says a Google spokesperson.
Upon today's ruling, Garcia herself said it was wonderful news. She commented, "I am a strong believer and supporter of the First Amendment and have the right not to be associated with this hateful speech against my will."