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On Monday, the 9th Circuit Court of Appeals took another shot at Cindy Lee Garcia‘s dispute with Google over whether YouTube must remove Innocence of Muslims and chose to reverse its prior holding by deciding against a preliminary injunction.
The actress 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.
In February 2014, 9th Circuit chief judge Alex Kozinski stunned many in the industry by determining that Garcia could assert a copyright interest in her performance in the film and that a federal judge was wrong to find against her injunction motion. The decision caused an outcry, especially among tech companies who worried that the decision could empower bit performers and other contributors to copyrighted work to assert their own authorship rights and enjoin anything they didn’t like.
Today, after the case was reviewed by a fuller panel of judges en banc, the appeals court agrees that Kozinski’s decision can’t stand. As a result, Innocence of Muslims may soon reappear on YouTube.
“In this case, a heartfelt plea for personal protection is juxtaposed with the limits of copyright law and fundamental principles of free speech,” writes 9th Circuit judge M. Margaret McKeown. “The appeal teaches a simple lesson — a weak copyright claim cannot justify censorship in the guise of authorship.”
In setting up the analysis, McKeown speaks of why it’s important that the legal standards be “demanding” upon someone seeking an injunction. She writes that Garcia not only show she’s likely to succeed in her lawsuit, but that “the law and facts clearly favor her position.”
The difficulty in this case was attempting to figure out Garcia’s copyright authority. Usually, actors sign release forms (or perform in a work-for-hire context) that take away the question altogether. When Kozinski previously decided that in the absence of such a release, Garcia could assert copyright on her performance, he did so upon the conclusion that an actor evinced sufficient creativity. The ruling seemed at odds with prior holdings — particularly Aalmuhammed v. Lee, which concerned the 1992 Spike Lee film Malcolm X and dealt with joint authorship of works “intended by everyone involved with it to be a unitary whole.”
McKeown notes that when the Copyright Office got its own chance to address Garcia’s copyright registration on her performance, it rejected the application because “a motion picture is a single integrated work.”
The judge nods to the rejection and turns back to the prior Aalmuhammed opinion that “defining a ‘work’ based upon ‘some minimal level of creativity or originality’ … would be too broad and indeterminate to be useful.”
She adds, “Garcia’s theory of copyright law would result in the legal morass we warned against in Aalmuhammed — splintering a movie into many different ‘works,’ even in the absence of an independent fixation. Simply put, as Google claimed, it ‘make[s] Swiss cheese of copyrights.’ “
Such words will be comforting to the likes of Google, Netflix and Facebook — among the many tech companies that begged the 9th Circuit to reconsider what Kozinski had wrote with fear that more takedown notices would come, and if they wanted to be safe from liability, they’d have to abide. McKeown points to the 125,000 people who worked on Ben-Hur and the 20,000 extras who worked on the Lord of the Rings trilogy as examples of a potential “logistical and financial nightmare” if every acting performance was treated as an independent work.”
In the opinion, McKeown rejects Garcia’s copyright assertion on another ground. In order for a valid copyright, a work has to be fixed in a tangible medium.
“For better or for worse, [filmmaker Mark Basseley] Youssef and his crew ‘fixed’ Garcia’s performance in the tangible medium, whether in physical film or in digital form,” she writes. “However one might characterize Garcia’s performance, she played no role in fixation. On top of this, Garcia claims that she never agreed to the film’s ultimate rendition or how she was portrayed in Innocence of Muslims, so she can hardly argue that the film or her cameo in it was fixed ‘by or under [her] authority.’ ”
The opinion represents not only a blow to Garcia, but also a setback to the SAG-AFTRA, the Actors Equity Association and the American Federation of Musicians — which got into this dispute late in the game on behalf of Garcia and argued that a “performance can be considered a pantomime” under copyright law and that an actor’s originality should count. (The MPAA chose not to weigh in on this important case.)
A majority of 9th Circuit judges instead go for another standard and also say an injunction isn’t warranted because Garcia hasn’t demonstrated irreparable harm. The opinion states, “Although we do not take lightly threats to life or the emotional turmoil Garcia has endured, her harms are untethered from — and incompatible with — copyright and copyright’s function as the engine of expression.”
Kozinski won’t be swayed.
In a dissenting opinion, he writes, “At times, the majority says that Garcia’s performance was not copyrightable at all. And at other times, it seems to say that Garcia just didn’t do enough to gain a copyright in the scene. Either way, the majority is wrong and makes a total mess of copyright law, right here in the Hollywood Circuit. 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. I won’t be a party to it.”
Here’s the full opinion.
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