June 27, 2013 11:23am PT by Eriq Gardner
'Innocence of Muslims' Appeal Examines Rights of Actors
Innocence of Muslims is more than just an important footnote in the tragedy of the Benghazi attack that killed an American diplomat; the film could also create precedent on determining what rights actors have or don't have in controlling use of their performances.
On Wednesday, the 9th U.S. Circuit Court of Appeals considered the case of Innocence of Muslims actress Cindy Lee Garcia, who sued after a trailer for the film was posted on YouTube. She says the video subjected her to death threats. Garcia alleges that because she didn't sign a release, she owns a copyright in her performance. She contends that after she sent a takedown notice to Google's YouTube, the website had a legal obligation to remove the video.
Last autumn, a federal judge rejected that theory for the purpose of deciding whether to grant a preliminary injunction, saying that the nature of Garcia's alleged copyright interest wasn't clear, and that as a result, she wasn't likely to win the case on the merits.
Garcia has appealed the decision, and a forthcoming ruling from the 9th Circuit could clear up that confusion, provide guidance on the types of licenses that producers need to get from actors and influence what websites do when they get takedown requests from performers in videos.
At the hearing on Wednesday, the appeals judges asked Garcia's attorney Cris Armenta to clear up her authority. "What bothers me about this case," said one judge, "[is] I'm trying to understand why does she have a copyright license in the first place? When she goes to work, why does she get a copyright in what's produced."
Armenta's position is that when actors perform for film, they fix their performance in a medium of tangible expression -- which is one of the requirements for copyright protection. As such, producers must get actors to sign over their rights in releases.
In the absence of express consent, there might still be an implied license that actors give producers, but in the Innocence of Muslims case, filmmaker Mark Basseley Youssef is alleged in Armenta's words to have "exceeded the scope of the license by taking the performance that [Garcia] delivered for something that was innocuous and placed it into something that was so offensive to her given her background, given her values."
Armenta also compared it to a situation where an actor is asked to perform for a cartoon show only to find their image being used in a porno.
One of the judges noted that the theory of exceeding the license might make it very difficult for movies to get out. 9th Circuit Judge Ronald Gould proposed the hypothetical of an actor shooting a Jell-O commercial only to find the TV ad not to his or her liking. (The judge probably wasn't aware of this, but an actress last year sued Belvedere Vodka after unwillingly becoming the face of an advertising campaign that joked about rape.)
The judges also questioned attorney Timothy Alger, who was representing Google, and brought up another big issue of the times -- YouTube's response to takedown requests.
"Why does Google care?" asked one judge. "Why doesn't Google just pull this thing and save themselves attorney fees if nothing else?"
Alger answered that his client doesn't just pull down stuff based on "defective DMCA notices." The attorney also said that Google takes seriously its role as a "forum of free speech," and then made a slippery slope argument: "If YouTube takes [a trailer] down just because of the say-so of someone who had a five-second appearance in a film like this, where do we stop?"
That wasn't satisfying for one judge, who noted that the film was inflammatory and that Google could reserve its rights while accommodating special circumstances. "There's no principle preventing Google from doing the right thing," commented that judge.
Alger seemed to stick up for Innocence of Muslims.
"I think that your Honor is assuming it is the right thing," he said. "This is a film that has garnered the attention of the globe and has garnered debate, including the issue of who is going to be the secretary of state. I think it would be a disservice to take it down."
Later, Alger also said that it's Google's opinion that Garcia never had any copyright interest to begin with.
The attorney stated, "We say she doesn't qualify as an author -- not enough creativity."