'Innocence of Muslims': Appeals Court Amends Controversial Ruling

Judge Alex Kozinski attempts to soothe nerves by suggesting that Google can still prevail on a fair use defense, but stays firm in his opinion that an actor's performance can be copyrightable.
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"Innocence of Muslims"

On Friday, the 9th U.S. Circuit Court of Appeals readdressed Garcia v. Google, its controversial ruling in February that held that Innocence of Muslims actress Cindy Lee Garcia could assert a copyright interest in her performance in the film and ordered Google to remove the inflammatory anti-Islamic film from YouTube.

After the decision was handed down, it ignited a firestorm of protest from Google, which warned of "Hollywood chaos," and from others including Netflix, prominent news organizations and top documentary filmmakers, who urged a rehearing upon the fear that contributors to joint creative works could step forward with rights claims and muddy the distribution of films, television shows and more.

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Chief Circuit Judge Alex Kozinski has now amended the opinion (read here) by reiterating that an actor’s performance, when fixed, is copyrightable if it evinces "some minimal degree of creativity." He newly rules that the Copyright Office's refusal to register Garcia's performance doesn't stop a determination that it is copyrightable.

But he has also softened his overall stand slightly, noting, "Nothing we say today precludes the district court from concluding that Garcia doesn’t have a copyrightable interest, or that Google prevails on any of its defenses."

Judge Kozinski acknowledges the fervent objection by those who came forward in support of Google after the decision was issued in February. He addresses their concern about the applicability of the fair use doctrine, an exception to copyright authority, and section 230 of the Communications Decency Act, providing immunity to online publishers for statements made from their users. The judge writes these issues weren't addressed in the original opinion because it was not raised by the parties. Today, he raises the specter that Google might be able to prevail on such defenses back at the lower district court.

That said, the amended opinion still represents a victory for Garcia —at least for now — who Judge Kozinski writes has demonstrated a likelihood of success on her claim that Innocence of Muslims infringes her copyright. As a result, the highly controversial injunction stays. (Interestingly, a petition for a rehearing en banc is still pending, meaning that it's possible that the 9th Circuit might vote to once again reconsider the ruling before a wider array of judges.)

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9th Circuit Judge N.R. Smith again dissents, attacking the majority's decision to "make new law" by holding an actress's performance can be copyrightable. He believes that Garcia doesn't qualify as an author and that she might have been working for hire.

Further, the dissenting circuit judge isn't particularly kind to Judge Kozinski's attempt to soothe nerves, attacking him for "quickly dismissing" contrary arguments. Judge Smith also believes the majority has glided over whether issuing a preliminary injunction constitutes a prior restraint of speech under the First Amendment. He writes, "The majority abandons restraint to procure an end (ordering the film be taken down) by unsuitable means (the Copyright Act)."

Email: Eriq.Gardner@THR.com
Twitter: @eriqgardner