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In the wake of a federal appellate court’s ruling last February that Innocence of Muslims actress Cindy Lee Garcia could assert a copyright interest in her performance in the film, Google warned of impending “chaos.” Netflix, news organizations and documentary filmmakers also worried about the consequence of letting contributors to joint creative works assert authorship claims, but in the months since the decision, there’s been little activity in courts on this issue.
Nevertheless, as the 9th Circuit continues to weigh whether or not to reconsider the ruling before a wider array of judges, a second actor has stepped forward to also file copyright claims over Innocence of Muslims. On Thursday, Gaylord Flynn sued filmmaker Mark Basseley Youssef, Google and others for allegedly reproducing his performance without authorization.
Flynn’s complaint doesn’t detail much about his role, but echoes Garcia in alleging that he was told he’d be starring in a desert adventure film titled Desert Warrior only to find his performance used in an anti-Islamic movie trailer posted on YouTube that was once blamed for inciting violence in the Middle East. Like Garcia, Flynn says he never agreed to “place his likeness, image, persona, or dramatic performance into a hateful production, nor did he agree to be associated with hate speech in any form or fashion.”
His claims against Google come because YouTube has allegedly failed to respond to takedown notices sent in March.
In July, Chief Judge Alex Kozinski of the 9th Circuit amended the Garcia opinion by raising the prospect that Google could still prevail on defenses such as fair use back at the trial court. That wasn’t enough for 9th Circuit Judge N.R. Smith, who thinks that despite no signed agreement, the actress still could have been deemed as working for hire with no authorship interest. Judge Smith also agrees with the Garcia objectors who fear the fallout from the decision will be plaintiffs who assert copyright interests and attempt to chill speech.
Flynn’s lawsuit — filed by the same attorney representing Garcia — doesn’t do much to change the legal atmosphere, although it could make it tougher to remedy the situation simply by stripping out one performance from Innocence of Muslims rather than removing it as a whole. UPDATE: Gigaom points out something we originally missed. Flynn is also asserting claims for Google’s links to torrent sites.
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