Horrific Appeals Court Ruling Says Actress Has Copyright Interest In 'Innocence Of Muslims,' Orders YouTube To Delete Every Copy



from the bad-on-multiple-levels dept
We've been following the saga of www.techdirt.com/blog/?tag=cindy+garcia
for quite some time now. She appeared in the now infamous YouTube film
"Innocence of Muslims" that attracted worldwide attention after it was
blamed for various riots and fatwas from extremist Muslims, because the
horribly scripted, produced and acted film is clearly insulting to the
religion. While the video had been out for months prior to the
controversy, once it started generating so much attention, Garcia tried
pretty much every trick in the book to make the movie disappear. She www.techdirt.com/articles/20120920/06030620448/anti-islam-mo
both the producer and YouTube in California state court. That failed.
Then she moved on to federal court, where she claimed that the movie https://www.techdirt.com/articles/20121008/12335520643/innoc,
an argument that is and has always been laughable. We assumed,
naturally, it would fail quickly -- and it did. However, she and her
lawyers www.techdirt.com/articles/20121019/06152520760/cindy-garcia-, and in a somewhat shocking -- and incredibly troubling -- move, the 9th Circuit appeals court has gigaom.com/2014/02/26/google-must-remove-all-innocence-of-mu, in a ruling written by Judge Alex Kozinski.

We've written about https://www.techdirt.com/blog/?tag=alex+kozinski
plenty of times in the past. He's one of our (and many court
watchers') favorite judges for his willingness to speak in a
straightforward manner and his similar proclivity to make jokes and poke
fun at himself. While we often do agree with him, in the cases where
we www.techdirt.com/articles/20100708/16170710136.shtml,
we often find his reasoning truly perplexing, and that is absolutely
true in this case. Kozinski seems to tie himself up in a whole variety
of questionable knots to find that (a) Garcia has a copyright interest
in the film and (b) Google should be forced to take down every instance
of the film. The ruling creates massive problems both for basic
copyright law and the First Amendment. And it's actually a case where
-- believe it or not -- Google and the MPAA might even be on the same
side once Google likely asks both the 9th Circuit to review and/or the
Supreme Court to consider the case as well. A ruling that would put
both Google and the MPAA on the same side of a copyright issue? Yes,
that's going to be a strange ruling indeed.

The key issue is that Garcia claims her performance is independently
copyrightable from the film. This claim is preposterous. No film has
ever worked that way, where the actors could make a claim to a separate
copyright for each performance. In fact, just a couple years ago, a
bunch of countries https://www.techdirt.com/articles/20120625/20471219474/wipo- to give actors a kind of copyright-like right in their roles in certain cases, which more or less explicitly recognizes that actors do not
get to copyright their own performance. Furthermore, as far as I know,
the US hasn't done anything to implement the details of that Beijing
Treaty (nor has it even www.wipo.int/treaties/en/ShowResults.jsp?lang=en&;amp;treaty_id=841), so it's not like any of those new rights should apply yet, and it doesn't appear that Kozinski relied on any of them anyway.

Instead, Kozinski goes through a detailed explanation for how each actor
in a film may be able to claim some sort of copyright in their own
performance, because of the creative elements they add to it.

An actor’s performance, when fixed, is copyrightable if
it evinces “some minimal degree of creativity . . . ‘no matter
how crude, humble or obvious’ it might be.” .... That is true
whether the actor speaks, is dubbed over or, like Buster
Keaton, performs without any words at all. Cf. 17 U.S.C.
§ 102(a)(4) (noting “pantomimes and choreographic works”
are eligible for copyright protection). It’s clear that Garcia’s
performance meets these minimum requirements.

Aalmuhammed isn’t to the contrary because it does not, as
the dissent would have it, “articulate[] general principles of
authorship.” Dissent 25. Aalmuhammed only discusses what
is required for a contributor to a work to assert joint
ownership over the entire work: “We hold that authorship is
required under the statutory definition of a joint work, and
that authorship is not the same thing as making a valuable and
copyrightable contribution.” ...
Aalmuhammed plainly contemplates that an individual can
make a “copyrightable contribution” and yet not become a
joint author of the whole work. Id. For example, the author
of a single poem does not necessarily become a co-author of
the anthology in which the poem is published. It makes sense
to impose heightened requirements on those who would
leverage their individual contribution into ownership of a
greater whole, but those requirements don’t apply to the
copyrightability of all creative works, for which only a
“minimal creative spark [is] required by the Copyright Act
and the Constitution.”


This doesn’t
mean that Garcia owns a copyright interest in the entire
scene: She can claim copyright in her own contribution but
not in “preexisting material” such as the words or actions
spelled out in the underlying script. 17 U.S.C. § 103(b);.... Garcia
may assert a copyright interest only in the portion of
“Innocence of Muslims” that represents her individual
creativity, but even if her contribution is relatively minor, it
isn’t de minimis.... We need
not and do not decide whether every actor has a copyright in
his performance within a movie. It suffices for now to hold
that, while the matter is fairly debatable, Garcia is likely to

However, as the dissenting opinion points out, this is hogwash. Actors
don't have any copyright interest in their performance and that's clear
from the law and this history of copyright:

Congress has listed examples of copyrightable
works, like architectural works, motion pictures, literary
works, and pictorial or sculptural works. Id. The nature of
these works is significantly different from an actress’s
individual performance in a film, casting doubt on the
conclusion that the latter can constitute a work....

Section 101 of the Act is also instructive, because it
differentiates a work from the performance of it. It defines
“perform a ‘work’” to mean “to recite, render, play, dance or
act it.” 17 U.S.C. § 101 (emphasis added). Given this
provision, it is difficult to understand how Congress intended
to extend copyright protection to this acting performance.
While Congress distinguishes the performance from the work
itself, the majority blurs this line. Its position contemplates
something very different from amalgamating independently
copyrightable interests into a derivative work. See id. at
§ 103(b).

Consistent with section 101, section 102(b) outlines that
which is not given copyright protection. It states: “In no case
does copyright protection for an original work of authorship
extend to any idea, procedure, process, system, method of
operation, concept, principle, or discovery, regardless of the
form in which it is described, explained, illustrated, or
embodied in such work.” An acting performance resembles the “procedure” or “process” by
which “an original work” is performed. Id. Therefore, “n
no case does copyright protection” extend to an acting
performance, “regardless of the form in which it is described,
illustrated, or embodied in” the original work.

Kozinski then argues that Garcia's performance doesn't qualify as a work
made for hire (which does seem slightly bizarre, but the work made for
hire rules are fairly specific and might not apply here). However, even
here, Kozinski makes a troubling statement that may be a dangerous
precedent. In arguing that the nutty guy behind the film, Mark Basseley
Youssef, is not "in the business of film making," Kozinski states:

There’s nothing in the record to suggest that Youssef was
in the “regular business” of making films.... He’d held many jobs, but there’s no indication he ever
worked in the film industry. And there’s no evidence he had
any union contracts, relationships with prop houses or other
film suppliers, leases of studio space or distribution
agreements. The dissent would hold that Youssef was in the
“regular business” of filmmaking simply because he made
“Innocence of Muslims.” But if shooting a single amateur
film amounts to the regular business of filmmaking, every
schmuck with a videocamera becomes a movie mogul.

Except, um, no. In an era where people can come from nowhere and make
amazing films -- then, yes, "every schmuck with a videocamera" can
be "in the business of making films." There is nothing in copyright
law that says you have to be a "movie mogul" to qualify, and it's
troubling both that Kozinski implies that only "movie moguls" get to
make use of the works made for hire doctrine and that small independent first-time filmmakers not entrenched in Hollywood somehow have fewer rights.

As for the "implied license" that Garcia gave to Youssef by performing
in his film, Kozinski makes yet another highly problematic argument,
that because Youssef changed her performance, it went outside the
license. Even after admitting that such a ruling would be problematic
in that it "could allow an actor to force the film's author to re-edit
the film--in violation of the author's exclusive right to prepare
derivative works" or that "the actor could prevent the film's author
from exercising his exclusive right to show the work to the public,"
Kozinski still seems to think that Garcia can do exactly that in this
case, because the film turned out to be quite different from what Garcia
was told it would be.

Garcia was told she’d
be acting in an adventure film set in ancient Arabia. Were
she now to complain that the film has a different title, that its
historical depictions are inaccurate, that her scene is poorly
edited or that the quality of the film isn’t as she’d imagined,
she wouldn’t have a viable claim that her implied license had
been exceeded. But the license Garcia granted Youssef
wasn’t so broad as to cover the use of her performance in any
project. Here, the problem isn’t that “Innocence of Muslims”
is not an Arabian adventure movie: It’s that the film isn’t
intended to entertain at all. The film differs so radically from
anything Garcia could have imagined when she was cast that
it can’t possibly be authorized by any implied license she granted Youssef.

While he notes this situation "will be extraordinarily rare," you can
pretty much bet that plenty of actors who are later upset with how a
director/editor handle their performance in films will cite this ruling
in the inevitable lawsuits. This ruling is going to lead to a ton of
really ridiculous lawsuits from actors upset about how a filmmaker
portrays them in a final cut of a film.

The next problematic argument is that, given all of this, Garcia still
needs to show irreparable harm from keeping the video up. And yes, as
Kozinski notes, death threats do seem like a form of irreparable harm.
But, the "harm" has to result from the infringement since it's a [i]copyright claim
that she's bringing. Kozinski is somehow convinced that's the case,
though his explanation doesn't seem to actually provide any explanation.

Despite her understandable focus on
the threats against her life, Garcia has brought a copyright
action. Therefore, she needs to show that the harm she
alleges is causally related to the infringement of her

She’s made such a showing. Youssef’s unauthorized
inclusion of her performance in “Innocence of Muslims”
undisputedly led to the threats against Garcia.

That seems like a huge stretch, and one totally unrelated to the copyright issue, again setting a dangerous precedent for future copyright abuses.

Then there's the simple fact that taking the film off YouTube now
doesn't seem likely to stop people from (a) knowing the film exists or
(b) knowing that Garcia was in it. Yet, Kozinski again seems to find
this argument compelling.

Garcia has shown that removing the
film from YouTube will help disassociate her from the film’s
anti-Islamic message and that such disassociation will keep
her from suffering future threats and physical harm.
Although Google asserts that the film is so widespread that
removing it from YouTube will have no effect, it has
provided no evidence to support this point. Taking down the
film from YouTube will remove it from a prominent online
platform—the platform on which it was first displayed—and
will curb the harms of which Garcia complains.

On to the basic First Amendment issue. As the dissent points out, even
given all of this, ordering Google to pull down the entire video is
classic prior restraint. But Kozinski brushes that aside by arguing
that it's okay because this is copyright infringement.

The problem with Google’s position is that it rests
entirely on the assertion that Garcia’s proposed injunction is
an unconstitutional prior restraint of speech. But the First
Amendment doesn’t protect copyright infringement.

The dissent points out that Kozinski is wrong, in part because the court
never even rules that there is copyright infringement going on here,
just that Garcia may have a copyright interest in her acting
performance (something the dissent disagrees with entirely). But even
if we accept Kozinski's interpretation, just because Garcia may have a
copyright interest, no infringement has yet been shown, and thus issuing
the takedown is prior restraint in violation of the First Amendment.

If all of this wasn't troubling enough, Kozinski made things even worse.
He not only issued the order a week ago to Google to remove all copies
of the video (and prevent any future uploads -- hello prior
restraint...) but also issued a gag order forbidding anyone to
talk about this until today, once the order was out. In other words,
not only did the court order the film censored, but it put a gag order
on anyone revealing that the film had been censored, which raises yet another First Amendment issue, which hopefully Google will appeal.

Google, Inc. shall take down all copies of “Innocence of Muslims” from
YouTube.com and from any other platforms under Google’s control, and take all
reasonable steps to prevent further uploads of “Innocence of Muslims” to those
platforms. Google shall comply with this order within twenty-four hours of the
issuance thereof.

Neither the parties nor counsel shall disclose this order, except as necessary
to the takedown process, until the opinion in this case issues. This order will
remain in effect until such time as the district court enters a preliminary injunction
consistent with our opinion.

Almost everything about Kozinski's ruling here is troubling. The
copyright interpretation just seems very far out of bounds with just
about everything having to do with copyright law. It will create
tremendous problems for the film industry. The First Amendment
implications of both the takedown and the gag order are similarly
troubling. Hopefully, either the full 9th Circuit will rethink this
issue, or the Supreme Court will take an appeal and set the 9th Circuit