9th Circuit Reverses “Innocence of Muslims” Ban
In July 2012 a trailer for the film, “The Innocence of Muslims” was released on YouTube and sparked outrage in the Islamic community that included protests that resulted in over 50 deaths and Fatwas and death threats for movie participants. It was banned in a number of Islamic countries.
One of the film’s actors, Cindy Lee Garcia, objected to the use of her performance (which was partially dubbed) since she was led to believe she was appearing in a “historical Arabian Desert adventure film” called Desert Warrior.
In February 2014, the Ninth Circuit ordered Google to remove the film from YouTube and other platforms based on Garcia’s novel claim that she owned a copyright in her performance in the film and who asserted irreparable harm due to death threats received by reason of her appearance in the film. The decision was widely criticized within the internet legal community.
The full Ninth Circuit reviewed the decision en banc and yesterday reversed the injunction. Below are some excerpts from the opinion, followed by the opinion itself.
- Introduction
In this case, a heartfelt plea for personal protection is juxtaposed with the limits of copyright law and fundamental principles of free speech. The appeal teaches a simple lesson—a weak copyright claim cannot justify censorship in the guise of authorship.
- Copyright Clam
As Garcia characterizes it, “the main issue in this case involves the vicious frenzy against Ms. Garcia that the Film caused among certain radical elements of the Muslim community.” We are sympathetic to her plight. Nonetheless,the claim against Google is grounded in copyright law, not privacy, emotional distress, or tort law, and Garcia seeks to impose speech restrictions under copyright laws meant to foster rather than repress free expression. Garcia’s theory can be likened to “copyright cherry picking,” which 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 unitary motion picture without satisfying the requirements of the Copyright Act.
. . . .In the face of this statutory scheme, it comes as nosurprise that during this litigation, the Copyright Office found that Garcia’s performance was not a copyrightable work when it rejected her copyright application. The CopyrightOffice explained that its “longstanding practices do not allowa copyright claim by an individual actor or actress in his or her performance contained within a motion picture.” Thus,“[f]or copyright registration purposes, a motion picture is a single integrated work. . . .
. . . .But that proves the point: the gravamen of Garcia’s harm is untethered from her commercial interests as a performer,and instead focuses on the personal pain caused by her association with the film.
- Critique of Take-down Order
The takedown order was unwarranted and incorrect as a matter of law, as we have explained above. 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. In so doing, the panel deprived the public of the ability to view firsthand, and judge for themselves, a film at the center of an international uproar.
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