Actress Cindy Lew Garcia’s bid to keep the anti-Islamic short film “Innocence of Muslims” off YouTube was dealt a blow Monday, as the 9th Circuit Court of Appeals overturned a preliminary injunction against the Google-owned web site.
Garcia, objected to the posting of the 14-minute film after learning it incorporated a clip she had made for a different movie, which had been partially dubbed and in which she appeared to be asking: “Is your Mohammed a child molester?”
Garcia also said that she had received death threats as a result of the online release of the film, which sparked outrage across the Mideast and coincided with an attack on U.S. diplomatic facilities in Benghazi that killed four Americans, including the U.S. ambassador to Libya.
The case is being watched carefully in Hollywood, as it pits the copyrights of performers against the First Amendment rights of Google and other online content providers. Had Garcia’s position been upheld, it would in theory give individuals more power in determining how material they appeared in was marketed and sold.
SAG-AFTRA, Actors Equity and the American Federation of Musicians backed Garcia in court filings. Google’s received similar support from Twitter, Netflix and the ACLU, and Monday’s ruling was a victory for the online providers.
In February of last year, Garcia had been granted a temporary injunction forcing YouTube, which is owned by Google, to remove the film.
“Garcia was duped into providing an artistic performance that was used in a way she never could have foreseen,” Chief Judge Alex Kozinski wrote in his opinion. “Her unwitting and unwilling inclusion in ‘Innocence of Muslims’ led to serious threats against her life.”
But Monday’s ruling, by an 11-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco, said that an injunction that had prohibited Google from broadcasting the film should be dissolved.
“The takedown order was unwarranted and incorrect as a matter of law,” wrote Judge Margaret McKeown. “It also gave short shrift to the First Amendment values at stake. The mandatory injunction censored and suppressed a politically significant film — based upon a dubious and unprecedented theory of copyright.”
Garcia’s argument “would enable any contributor from a costume designer down to an extra or best boy to claim copyright in random bits and pieces” of a movie,” the court wrote. “In this case, a heartfelt plea for personal protection is juxtaposed with the limits of copyright law and fundamental principles of free speech,” the court wrote.
In a dissenting opinion, Kozinski held firm to his earlier position.
“At times, the majority says that Garcia’s performance was not copyrightable at all. And at other times, it seems to say that Garcia just didn’t do enough to gain a copyright in the scene,” he wrote. “Either way, the majority is wrong and makes a total mess of copyright law, right here in the Hollywood Circuit.
“In its haste to take Internet service providers off the hook for infringement, the court today robs performers and other creative talent of rights Congress gave them. I won’t be a party to it.”
The Garcia case is one of those that arouses intense interest in the entertainment and tech industries, but poses little risk of a real world impact, both for substantive and procedural reasons, according to Duncan Crabtree-Ireland, SAG-AFTRA;s chief operating office and general counsel. .
“The ruling arises in the unusual context of a request for an injunction. More importantly, mainstream content companies would never consider engaging in the type of business practices at play here,” he told TheWrap.
“While we believe the panel got this decision wrong – and that Judge Kozinski’s passionate dissent will have the more significant long-term impact – SAG-AFTRA and our sister unions and organizations will continue our longstanding and multijurisdictional efforts to ensure that all law properly protects performers’ and artists’ rights.”.
Pamela Chelin contributed to this report.