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The 9th U.S. Circuit Court of Appeals has voted to rehear actress Cindy Lee Garcia‘s dispute with Google over whether YouTube must remove Innocence of Muslims.
This past February, 9th Circuit Chief Judge Alex Kozinski issued a ruling that turned heads in both the entertainment and tech industry by determining that Garcia could assert a copyright interest in her performance in the film.
Garcia claims that when she agreed to appear in the movie, she didn’t know that she was signing up for an anti-Islamic film. She says she signed no waivers and held on to the copyright of her performance. After a trailer of the film was released and sparked worldwide protests, Garcia received death threats, and so she sent a takedown notice to YouTube.
A federal judge rejected her claims, but then Judge Kozinski wrote, “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.”
The appellate judge nodded to an actor’s creativity in his or her performance and rejected arguments that Garcia’s work was de minimis, that her performance was a work for hire and that she made an implied license when agreeing to perform. In July, Judge Kozinski amended his opinion by stating that Google could still prevail on a fair use defense at the district court.
But that wasn’t good enough for some.
Google warned that it would lead to “Hollywood chaos,” and urged reconsideration.
“The panel has adopted a novel interpretation of copyright law that will invite uncertainty and chaos for the entertainment industry, documentary filmmakers, amateur content creators, and for online hosting services like YouTube, allowing bit players in movies, videos, and other media to control how and when creative works are publicly displayed,” wrote Google’s lawyers.
Google got much support from others. Among the amici were news organizations like the Washington Post and National Public Radio, documentary filmmakers like Morgan Spurlock and Fredrik Gertten, and tech companies like Facebook, eBay, Twitter, Yahoo, IAC/InterActiveCorp, Tumblr and Kickstarter.
Netflix warned of “creating a new species of copyright, and empowering essentially any performer in a motion picture or television program to both sue downstream distributors and enjoin any use of her performance of which she does not approve.”
Only entertainment lawyer Charles Harder, who has represented Sandra Bullock, George Clooney, Bradley Cooper, Clint Eastwood and Reese Witherspoon, came forward to argue that the ruling shouldn’t be reconsidered. He wrote: “Justice is and should be on the side of Ms. Garcia, who thought she was being cast in a B-movie adventure film, only to have her life turned upside-down by an unscrupulous film producer and one of the world’s wealthiest corporations that, on principal, refuses to remove a video that was created based on a fraud, and has subjected her to perpetual death threats and hate speech.”
Now that the 9th Circuit will hear the case again en banc, it figures to once again re-explore the standards of joint authorship in Hollywood. Until February, most observers had expected affirmation of a prior 9th Circuit ruling, Aalmuhammed v. Lee, which concerned the 1992 Spike Lee film Malcolm X and determined that a movie is “intended by everyone involved with it to be a unitary whole.”
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