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Until recently, Innocence of Muslims was known as the movie trailer that sparked outcries throughout the world and was blamed at one point for the attack on the U.S. diplomatic mission in Benghazi, Libya, that left four Americans dead, including Ambassador Chris Stevens. But after a federal appeals court ruling last month that determined that actress Cindy Lee Garcia could assert a copyright interest in her performance in the film and that Google had to remove the controversial anti-Islamic film from YouTube, Innocence of Muslims has evolved into something more.
Soon after the ruling by 9th Circuit Chief Judge Alex Kozinski, Google filed an emergency motion to stay the order pending a rehearing en banc. Judge Kozinski denied the motion, but in a rare move that illustrates the tensions this decision has wrought, another 9th Circuit judge made a sua sponte request to have the circuit reconsider the stay. UPDATE 3/14: 9th Circuit judges voted against a stay rehearing, leaving open the possibility of a rehearing on the overall case. For now, YouTube will still need to remove Innocence of Muslims.
Now, both sides have filed briefing on that issue with Google revealing the latest: The U.S. Copyright Office has refused Garcia’s attempt to register a copyright. And if that’s not enough, on Wednesday, Facebook, Twitter, IAC and Pinterest requested permission to file an amicus brief supporting Google’s position. UPDATE: Media groups and publishers including The New York Times, Washington Post, Los Angeles Times are also weighing in support of Google.
Giving an actor a copyright in his or her performance possibly opens a can of worms when it comes to works of authorship like movies and television shows that contain contributions from many individuals. Some in Hollywood shrug off the doomsayers because of the practice of studios getting signed release forms from actors — which Garcia didn’t have when she was cast in what she believed to be an innocent adventure film titled Desert Warrior. And then there are those like SAG-AFTRA pleased that an appeals court has recognized actors’ rights.
But for Google, Facebook, Twitter, Pinterest and other ISPs often needing to make snap judgments about copyright validity, the Muslims ruling represented a threat. “Under the majority’s rule, everyone from extras to backup dancers could control how (and whether) films get distributed,” says Google in its latest briefing to the 9th Circuit. “And platforms like YouTube would be caught in the middle, forced to adjudicate endless takedown requests that would turn on hard-to-resolve disputes of fact.”
In further support of its position, Google turns to someone else who disagreed with Judge Kozinski.
For the past couple of years, Garcia has been trying to register as the sole author of a “dramatic performance fixed in tangible medium of expression” at the U.S. Copyright Office.
In December, 2012, the chief of the performing arts division at the Copyright Office indicated that the registration would be refused because a “motion picture is a single integrated work.”
Garcia’s lawyer replied by pointing the Copyright Office to what was happening at the 9th Circuit.
On March 6, the director of registration policy and practices took the notable step of writing a letter to Garcia’s lawyer firmly refusing registration and noting how the Copyright Office’s “longstanding practices do not allow a copyright claim by an individual actor or actress in his or her performance contained within a motion picture.”
Google is using this communication as ammunition.
Registering a copyright is a formality that can be a prerequisite to filing an infringement lawsuit and collecting statutory damages. In some respects, the Copyright Office’s letter in the aftermath of the 9th Circuit decision represents a rebuke to the opinion of the widely respected 9th Circuit chief judge.
Despite that setback, Garcia is insistent that her performance qualifies for copyright because it possesses creativity and has been fixed in a tangible medium. In Garcia’s latest brief to the 9th Circuit, the actress quotes Judge Kozinski’s opinion that an actor must “live his part inwardly, and then… give to his experience an external embodiment.”
The actress also believes that Google is being callous. According to her brief, “Google has dehumanized, minimized, and derided Ms. Garcia’s performance as, variously, ‘de minimis,” a mere 5 second appearance,’ and ‘minuscule,’ despite the fact that she was made to appear to accuse the Prophet Mohammad of being a child molester.”
Next to weigh in, assuming the 9th Circuit gives permission, are Facebook, Twitter and other ISPs. So far, no one in Hollywood has submitted a request for an amicus brief, but that could be coming as well.
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