The U.S. 9th Circuit Court of Appeals has overturned an order that YouTube take down the infamous video “Innocence of Muslims,” rejecting an actress’ claim that her brief and unwitting appearance in the film gave her a copyright in her performance that allowed her to prevent its distribution.
The decision overturned a February 2014 ruling from a three-judge panel of the same circuit. Judge Alex Kozinski, who had written the earlier opinion overturning a District Court’s refusal to grant an injunction, was the lone dissenter in the en banc ruling. Nine judges joined the majority opinion by Judge Margaret McKeown, while Judge Paul J. Watford offered a separate concurrence
The case involved plaintiff Cindy Lee Garcia, who appeared for just five seconds in the notorious film, but who nonetheless has been a target of intense threats ever since. As the Wall Street Journal summarized it:
Ms. Garcia answered a casting call for a minor role in a film to be titled ‘Desert Warrior,’ according to last year’s Ninth Circuit opinion. She was paid $500. Ms. Garcia said she thought the film was about the life of a typical Egyptian 2,000 years ago.
It wasn’t until the film was uploaded to YouTube that she saw the end result, according to the opinion. What she saw was a short anti-Islamic film called ‘Innocence of Muslims,’ in which she was portrayed as making anti-Muslim statements. According to the opinion, an Egyptian cleric issued a fatwa, calling for everyone involved in the film to be killed.
The court was not unsympathetic to Garcia’s plight, calling it “a heartfelt plea for personal protection”; but ultimately, they ruled, not one that could be made on grounds of copyright law.
Much of McKeown’s opinion was devoted to dissecting and ultimately rejecting Kozinski’s calculus that an individual performer could have a copyright interest in such a production, when it was the filmmaker, Mark Basseley Youssef, who actually fixed Garcia’s performance to media. Such a precedent would render the film industry itself all but unworkable, the court opined.
Take, for example, films with a large cast—the proverbial ‘cast of thousands’—such as Ben-Hur or Lord of the Rings. The silent epic Ben-Hur advertised a cast of 125,000 people. In the Lord of the Rings trilogy, 20,000 extras tramped around Middle-Earth alongside Frodo Baggins (played by Elijah Wood). Treating every acting performance as an independent work would not only be a logistical and financial nightmare, it would turn cast of thousands into a new mantra: copyright of thousands.
In fact, the decision noted, the U.S. Copyright Office rejected Garcia’s application to register her performance as a copyright. Ultimately, McKeown wrote, “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.”
In light of the Copyright Act’s requirements of an ‘original work[] of authorship fixed in any tangible medium,’ 17 U.S.C. § 102(a), the mismatch between Garcia’s copyright claim and the relief sought, and the Copyright Office’s rejection of Garcia’s application for a copyright in her brief performance, we conclude that the district court did not abuse its discretion in denying Garcia’s request for the preliminary injunction. As a consequence, the panel’s mandatory injunction against Google was unjustified and is dissolved upon publication of this opinion.