Federal Judge Won't Order Takedown of 'Innocence of Muslims'

3:40 PM PST 11/30/2012 by Eriq Gardner

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The judge determines that actress Cindy Lee Garcia is unlikely to succeed on the merits of her lawsuit.

Picture People

Innocence of Muslims actress Cindy Lee Garcia has lost her latest bid to have a judge order the film trailer's removed from YouTube. This time, the decision came premised on a judge's opinion that Garcia was unlikely to win her copyright case.

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The actress first filed a lawsuit in California state court, claiming that she had been duped into appearing in the film.

A Los Angeles judge denied her attempt in September to take down the film, leading Garcia to file a bigger lawsuit in federal court against filmmaker Mark Basseley Youssef and Google. Her claim was provocative: She asserted that she owns the right to her dramatic performance in the film, stated she never signed a release form and, as a result, Google couldn't avail itself of safe harbor from copyright liability by refusing to abide by her takedown notice.

But in a decision Friday that denies Garcia's motion for a preliminary injunction, U.S. District Court Judge Michael Fitzgerald poured some cold water on that theory.

"Even assuming both that Garcia's individual performance in the film is copyrightable and that she has not released this copyright interest, the nature of this copyright interest is not clear," the judge wrote. "Nor is it clear that the defendants would be liable for infringement."

In the lawsuit, Garcia's attorney Cris Armenta attempted to show why her client was entitled to copyright.

To be eligible for copyright, a work has to be "fixed in a tangible medium," and Armenta argued that a film counted. The question then turned to whether the underlying subject matter -- like an acting performance itself -- could be copyrightable, and Armenta pointed to a publicity rights pre-emption case to support the theory. Her lawsuit also was backed by a copyright registration she gained on Garcia's work.

But there are other legal precedents that are more skeptical about whether contributions to film works rise to copyrightable material, including Aalmuhammed v. Lee, which was decided in 2000 by the 9th Circuit Court of Appeals and had to do with authorship of the 1992 Spike Lee film Malcolm X.

In his ruling Friday, Fitzgerald pointed to this case, which states that a movie is "intended by everyone involved with it to be a unitary whole."

The judge went on to say: "Garcia appears to argue only that she owns the copyright in her performance within the film. Even if this copyright interest were cognizable and proven, by operation of law, Garcia necessarily (if impliedly) would have granted the film's author a license to distribute her performance as a contribution incorporated into the indivisible whole of the film."

In other words, it might not even matter that Google and Youssef have provided a copy of an alleged cast agreement that Garcia signed. The judge believes that her consent was implied, pretty much rejecting the plaintiff's argument that such a finding would "turn the entire film industry upside down" by obliterating the need for producers to obtain releases from actors.

Google was represented by Timothy Alger at Perkins Coie.

Reacting to the decision, Armenta said that her client is "a woman of extremely modest means," but that if she is financially able, a motion for an immediate appeal will be made before the Ninth Circuit Court of Appeals.

“Based on the decision of the Court today, it appears that releases for performance rights can be simply implied and this decision puts the rights of performers, actors and musicians at serious risk,” said Armenta in a statement. "Obviously, we are disappointed in the court’s decision and the fact that Ms. Garcia has yet to have her day in Court. We hope that world-wide, the message has been heard that Ms. Garcia was not complicit and did not voluntarily participate in this heinous piece of hate speech.”

E-mail: eriq.gardner@thr.com; Twitter: @eriqgardner