The Innocence of Muslims Ruling: The Case of Garcia v. Google
The film “Innocence of Muslims” has been quite the pot-stirrer. The video first caused trouble on September 11, 2012, when a series of protests and violent attacks began in response to the YouTube trailer for the film. The film was considered blasphemous by many Muslims, thus spawning a reaction at an American embassy in Cairo, which then quickly spread across the Arab and Muslim nations. Notably, the film is also alleged to have played a role in the planned attack on the U.S. diplomatic compound in Benghazi, Libya.
In addition to the upheaval caused around the film’s debut, the short movie has now instigated issues in copyright law. The 9th Circuit’s recent decision in Garcia v. Google, which came down on February 26, 2014, concerns a bit actor’s role in the movie and her right to have the video removed from YouTube. The court’s holdings create numerous implications for the work-for-hire doctrine, and sent both service and content providers in a panic.
The Relevant Facts and Procedure
Actress Cindy Lee Garcia brought the case. Garcia became involved with the project when she answered a casting call for the low-budget film put out by the creator Mark Basseley Yousseff. At that point, however, the film had the working title of “Desert Warrior.” She was cast in a minor role and given the four pages of the script in which her character appeared. Garcia was paid approximately $500 for three and a half days of filming. Yet, “Desert Warrior” never came into fruition. Instead, the actress’s scene was used in the controversial “Innocence of Muslims” film.
Garcia first saw “Innocence of Muslims” after it was uploaded to YouTube. She discovered that her brief performance had been partially dubbed over so that she appeared to be asking, “Is your Mohammed a child molester?” Undoubtedly, Garcia was duped into performing this role. Her appearance spans a mere five seconds in a fourteen-minute trailer. Despite her fleeting role, the worldwide uproar that ensued began to target Garcia, and death threats quickly arrived at her door. Her response was to ask Google to remove the video from YouTube.
In total, Garcia filed eight take-down notices under the Digital Millennium Copyright Act. [17 U.S.C. § 512]. Google denied all of them. Garcia’s next move was to apply for a temporary restraining order seeking removal of the film from YouTube, claiming that the posting of the video infringed her copyright in her performance. The District Court treated the application as a motion for a preliminary injunction, and denied it.
Garcia then appealed the case to the 9th Circuit, which reversed the trial court’s decision and granted her the preliminary injunction – thus forcing Google to remove the video from YouTube indefinitely.
In the appellate court’s reversal, the majority opinion, written by Chief Judge Alex Kozinski, laid out five contentious holdings.
First, an actor’s performance is independently copyrightable so long as the performance has some minimal degree of creativity.
Typically, a film is conceived of as a “joint work consisting of a number of contributions by different authors.” Garcia says that she never intended her performance to be a part of a joint work. In fact, Garcia does not even qualify as a joint author. This is because she never contemplated being a part of “Innocence of Muslims,” thus eliminating the element of preconceived common design to contribute to a joint work.
Second, absent a work-for-hire or assignment of interest, an actor owns the copyright of their performance in a film.
Normally, the issue of joint ownership rights of actors and other contributors to a film are resolved under the work-for-hire doctrine., Under this doctrine, the rights to Garcia’s performance vested in Youssef if Garcia was Youssef’s employee and acted in her employment capacity, or if she was an independent contractor who transferred her interests in writing. But Yousseff never obtained a written agreement, and Garcia simply does not qualify as a traditional employee. Garcia was hired for a specific task; she only worked for three days and received no health or employment benefits. Plus, there is no evidence to suggest that Youssef was in the “regular business” of making films.
Third, a contributor who does not qualify as a joint author retains the copyright of their performance.
This ruling leaves minor authors as sole authors of their contribution to the overall work; acknowledging that even a bit actor owns an individual copyright in their contribution and dividing the interests of a single work into many parts. Effectively, this loosens a bundle of rights that are normally afforded to one sole author (i.e., the producer or director of a film).
Fourth, an implied license from the actor to the creator of a film may be inferred where there is no express agreement. The scope of the license determines the rights granted.
The court did find that Garcia granted Youssef an implied license. She auditioned for a role in a particular film, was paid for her performance, and had every reason to believe Youssef would eventually release the film. Normally, actors are found to have granted filmmakers broad implied licenses. This prevents actors from leveraging their individual contributions into de facto authorial control over the film.
Yet, the scope of the license granted by Garcia to Youssef was narrower than the norm; it wasn’t so broad as to cover the use of Garcia’s performance in just any project, but in the specific “Desert Warrior” project for which she was hired. Plus, a clear sign that Youssef exceeded the bounds of any license is that he lied to Garcia in order to secure her participation, and she agreed to perform in reliance on that lie.
Fifth, a minor actor can obtain an injunction prohibiting the film’s production and display.
This holding is perhaps what has many in a tizzy, as it allows a minor actor to yield control over a project never before seen in the industry.
Reactions and Repercussions
It seems that Hollywood experts are divided on the implications of the ruling. Some are referring to the old adage “hard cases make bad law.” Others, however, agree with the ruling.
Opponents include UCLA School of Law Professor Neil Netanel, University of Maryland Law Professor James Grimmelman, and James Janowitz, Chair of the entertainment group at New York firm Pryor Cashman.
One area of disconcertment is that Garcia is said to have a copyright interest over the movie, yet retains no creative control over the film. Even though her part is very minor (5 seconds), she is able to prohibit the display of the film. This might create a false empowerment effect for other minor contributors to film. Anyone whose expression appears in a film, and has not signed a work-for-hire agreement, has a potential copyright claim. Thus, dressers, camera operators, or sound effects engineers, could theoretically prevent the movie’s exhibition if they have cause.
A second concern is that the ruling blows past First Amendment concerns. Typically, injunctions that shut down speech are disfavored and should not be issued where a case is doubtful. The dissent even mentions that the balance of equities and the public interest strongly favors leaving the video up. The film has already been widely disseminated so any remedy the removal of the video would bring to Garcia is minimal. In other words, the cat is out of the bag and the injunction won’t solve her problem. Furthermore, the film is relevant for its political and cultural commentary, as well as its alleged role in the Benghazi attack. Thus, there is a strong public interest in having the movie available for viewing.
On the other hand, not every scholar is distraught by Kozinski’s opinion. Supporters include David Nimmer, co-author (with his late father) of an eleven-volume treatise on copyright law, Loyola Law School Professor Jay Dougherty, as well as Duncan Crabtree-Ireland, SAG-AFTRA’s Chief Operating Officer and General Counsel.
In response to the opponents’ first concern, these scholars uphold that the majority’s decision that the copyright ownership ruling is correct. Even though an actor does not exercise creative control over the film like a director or producer does, an actor still has an independent copyright interest in his or her own performance. As Kozinski put it, all the performance need evoke is “some minimal degree of creativity…no matter how crude, humble or obvious it might be.” Feist Publ’ns, Inc. v. Rural Te. Serv. Co., 499 U.S. 340, 345 (1991). That is true whether the actor speaks, is dubbed over, or performs without any words at all.
In regards to the opponents’ second concern, those in accordance with the majority decision have a simple answer: the First Amendment does not protect copyright infringement.
There is almost a unanimous consensus, however, that the case is not that likely to lead to further litigation. The facts of the case are highly unusual – fraud, a lack of written agreement, and death threats – that the practical implications of the case are limited.
Whatever the reaction of outsiders, it is certain that Google sees the implications as far-reaching. One day after the 9th Circuit came down with its opinion, Google filed an Emergency Motion to stay the injunction for rehearing en banc. Their view is that the panel’s order will gag their speech and limit access to newsworthy documents.
Additionally, Google argues that the majority ignored the important distinction between a performance and the copyrightable work itself, thus blurring an important line in copyright law. In their belief, Garcia is not an “author” of the “Innocence of Muslims” because she is not the person to whom the work owes its origin and who superintended the whole work.
In response to Google’s emergency motion, a judge of the 9th Circuit has made a sua sponte request for a vote on whether to rehear en banc the panel’s order directing Google and YouTube to remove the film. If you feel strongly one way the other, you may have a brief filed (by an attorney) before 5:00 PM, Pacific Time, Wednesday March 12 (as in tomorrow).