United States: Ninth Circuit To Hollywood: Swiss Cheese Copyrights Now Toast

Actress Cindy Lee Garcia was duped. She agreed to perform as an actress in an action-adventure thriller set in ancient Arabia titled, "Desert Warrior." The script called for a concerned female to deliver the following lines: "Is George crazy? Our daughter is but a child?" Garcia performed her role and, in July 2012, the producer of the film uploaded a shortened version of the movie to YouTube.

To Cindy's horror, her scene had been redubbed and the film retitled. The new title of the film was "Innocence of Muslims" and Cindy's lines in the film were dubbed over with the line, "Is your Mohammed a child molester?" Her image, on screen for a total of five seconds, remained in the film.

While on YouTube, the film created controversy in the Middle East. Specifically, the film is purported to have been the impetus for the September 11, 2012, attack on the United States Consulate in Benghazi, Libya. Following the attack, an Egyptian cleric issued a fatwa against all those associated with the film. As a result, Garcia received multiple death threats.

In response to these death threats, Garcia sought injunctive relief against Google in order to bar YouTube and other Google-run sites from hosting "Innocence of Muslims." Given well-established First Amendment jurisprudence, Garcia knew she would be unable to rely upon defamation, privacy or related torts as a basis to seek an injunction against further distribution of the film. It was only copyright law that could potentially provide the injunctive remedy she wanted. Thus, Garcia claimed that she had a separate copyright interest in her five-second performance in the film, and then she sued YouTube for infringing upon her copyright in her "audio-visual dramatic performance."

A district court denied Garcia's request for a preliminary injunction on the grounds that she had failed to establish a likelihood of success on the merits. A divided Ninth Circuit panel reversed, and issued a secret takedown order, giving Google twenty-four hours to remove all versions of "Innocence of Muslims" that included Garcia's performance. Although the majority characterized Garcia's copyright claims as "fairly debatable," the court concluded that Garcia was likely to prevail on her copyright claim. Moreover, the court also held that Garcia had not granted the film's producer an implied license to incorporate her performance into the film. Google sought rehearing, with a flood of amici briefs from filmmakers, news organizations and others being filed to address this potentially massive hypothecation of copyright interests in a motion picture.

The Ninth Circuit agreed to rehear the matter en banc and in Garcia v. Google, Inc., 786 F.3d 733 (9th Cir. 2015), the Court reversed the previous panel decision and affirmed the district court's order denying a preliminary injunction on the grounds that Garcia had failed to establish a likelihood of success on the merits. In doing so, the majority took a holistic approach to copyright law as it pertains to motion pictures; "[f]or copyright registration purposes, a motion picture is a single integrated work." As such, Garcia's five second appearance in "Innocence of Muslims" did not warrant copyright protection because she was neither the author of the work nor had she been the one who had fixed her acting performance in a tangible medium of expression.

Simply put, the Court recognized that a movie production is quite often a "cast of thousands." To allow Garcia to maintain a copyright interest in her five second scene would effectively grant every cast and crew member working on a movie a copyright interest in the film. Thus, to prevent making "Swiss cheese of copyrights," the court ruled that the law did not "clearly favor" Garcia. Additionally, although Garcia had received death threats, the court did not find a strong showing that Garcia would suffer irreparable harm if an injunction was denied.

Ultimately, the majority opinion reinforces First Amendment protections on the internet as well as adds clarity to copyright law in the movie industry. As the majority noted, "a weak copyright claim cannot justify censorship in the guise of authorship." Garcia sought injunctive relief. Copyright law, however, was not the proper vehicle. As the Court noted, "the protection of privacy is not a function of the copyright law . . . . To the contrary, the copyright law offers a limited monopoly to encourage ultimate public access to the creative work of the author."

In language that may prove important in the area of defamation and privacy law and its intersection with the vast stores of information about people that exists on the internet, the Court noted that Garcia was really seeking a sort of "right to be forgotten." Although such a right has recently been created in some European countries, the right to be forgotten has not been recognized in the United States. Following Garcia, absent a contract stating otherwise, acting performances will very likely not be treated as independent works under copyright law.

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