US Court Orders Google To Take Down Controversial Video

On February 26th, the US Ninth Circuit Court of Appeals (Court) issued a preliminary injunction in a copyright case involving an actor featured in the anti-Islamic YouTube film “Innocence of Muslims”. In a split 2-1 decision, the Court found that the plaintiff, Cindy Lee Garcia, had established a likelihood of success in her claim of copyright infringement against Google, the owner of YouTube. Background Garcia had auditioned for an adventure movie with the working title “Desert Warrior” and was cast in a minor role. While “Desert Warrior” never materialized, five seconds of Garcia’s performance was used in a 14-minute YouTube trailer entitled “Innocence of Muslims”. The film’s creator dubbed part of Garcia’s dialogue so that she appears to be asking “Is your Mohammed a child molester?” The anti-Islamist film incited public protests in the Middle East and the issuance of a fatwa against everyone involved in the movie. Garcia herself received several death threats. While Google blocked the video in certain countries, the company refused to take the video down. What Garcia needed to prove to gain the injunction Garcia not only needed to prove irreparable harm, but also that her copyright claim had merit. To succeed at trial, Garcia needed to convince the court: (1) that she had a copyright interest in her performance, (2) that the film’s creator did not own her interest as a work for hire, and (3) that the film’s creator did not have an implied license to use her performance. Actors can have independent copyright in a film performance Garcia successfully claimed that although she did not meet the test for joint authorship of the film, she had a separate, independent copyright in her performance. The majority reasoned that an actor’s performance, when fixed, is copyrightable if it evokes a minimal amount of creativity. The Court likened an actor’s contribution to that of a writer who contributes a poem for an anthology; although the writer does not have copyright in the entire work, she retains rights over her individual part. The majority found that Garcia’s performance was not de minimis, meaning that a trial court would likely rule that she had an interest in her contribution to the film. Garcia would not, however, have a right to any “pre-existing material” such as the words or actions in the script. An actor as independent contractor Under the work for hire doctrine, Garcia’s copyright would vest in the film’s creator if she was found to be an employee who acted in an employment capacity. The majority held that the plaintiff was an independent contractor, because the film’s creator was not “in the business of film making”, and thus not an employer. The majority added tartly, “if shooting a single amateur film amounts to the regular business of filmmaking, every schmuck with a video camera becomes a movie mogul.” Filmmaker exceeded implied license The Court agreed with Google that Garcia had given the film’s creator an implied license to use her performance. However, the majority reasoned that the license did not apply since the film was markedly different from what Garcia originally agreed to appear in. The majority itself admitted that this line of reasoning is highly problematic for the film industry, as it could allow actors to force filmmakers to re-edit a film, or even prevent filmmakers from exercising their exclusive right to show the work to the public. Summary by: Elena Iosef