Innocence of Muslims Case Raises Copyright Concerns

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Mar 3, 2014

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Last week, the federal Ninth Circuit Court of Appeals determined that actress Cindy Garcia could demand Google and YouTube remove the controversial short film, Innocence of Muslims.  In its ruling, the Court set off a wave of criticism over its broad interpretation of copyright law that could have a significant ripple effect across Hollywood studios.

Garcia’s Suit over Innocence of Muslims

At the center of Ms. Garcia’s lawsuit is her allegation that writer / producer Mark Besseley Youssef cast her in a minor role in his film without fully informing her about the nature of the movie.  After she saw the film, Ms. Garcia realized that Innocence of Muslims was an anti-Islamic work, and her voice work had been partially dubbed over to make her appear to ask, “Is your Mohammed a child molester?”  Predictably, the Muslim community reacted negatively to the film, with one Egyptian cleric going so far as to call for the murder of everyone associated with the movie – including Ms. Garcia.

Garcia received several death threats, and initiated the lawsuit to request an injunction forcing Google to take down the video.  Garcia argued that she owns the copyright on her performance, and Mr. Youssef did not properly acquire the rights to her performance – meaning that he did not have authorization to post the video with her performance in it.  The Ninth Circuit agreed in a 2 – 1 vote and issued an order to remove posts of the Innocence of Muslim video that included Ms. Garcia’s performance.

Ninth Circuit Cites Copyright Issues

The Ninth Circuit was asked to consider the question of whether or not an actor in a movie is afforded copyright protection over a performance, and in its ruling, the Court determined:

  1. Ms. Garcia’s performance is an independent work of authorship, and therefore she has rights to its use.  Although she did not write the script or direct the film, her interpretation of the role provided for her was, according to the 9th Circuit, sufficiently unique to afford her copyright protection.  The Court’s decision is not necessarily out of left field – singers have copyright protection under independent work of authorship for song recordings, even if they did not write the song.
  2. Ms. Garcia’s performance was not a “work made for hire,” which, under the Copyright Act, would have allowed Mr. Youssef to use it anyway he chose.  Employers are entitled intellectual property rights over anything that employees write or act or sing, but Ms. Garcia, like most actors, was considered by the 9th Circuit to be an independent contractor – meaning she had exclusive right over her performance.
  3. Mr. Youssef was not licensed to use Ms. Garcia’s performance.  Under the Copyright Act, a non-exclusive right to distribute material can be implied when the person producing the work hands it over with the intent that it will be copied and distributed.  Although implied licensing can apply broadly, the Ninth Circuit determined that Ms. Garcia was misled about the nature of the film, and therefore did not hand over an implied right to distribute her performance.
  4. Finally, Ms. Garcia demonstrated that an injunction would prevent “irreparable harm” to her.  By showing that her life had been threatened because of her involvement with Innocence of Muslims, Garcia was able to prove that an injunction requiring the video be removed was necessary.

Shortly after the decision was announced, Google requested a temporary stay on the injunction citing First Amendment protection of speech, and warning that the 9th Circuit’s ruling would open up a can of worms that could ripple across Hollywood.  The Court denied Google’s request for a stay, and the order to remove all copies of Innocence of Muslims that feature Ms. Garcia stands. 

Concerns after Innocence of Muslims Ruling

Hollywood has expressed serious concern over the broad interpretation of copyright law expressed in the Innocence of Muslims decision.  Applying the Ninth Circuit’s logic, any individual who works in a creative capacity on a TV show or motion picture – including actors, writers, camera people, special effects artists, makeup personnel, etc. – will have copyrightable authorship of their work that has been incorporated into the finished product.  This means that any of these contributors to a movie will have some not insignificant measure of control over the right of the project to be distributed.

While this may seem unreasonable, it appears to be the correct interpretation of the Copyright Act.  American jurisprudence has historically operated under the theory that copyright law provides a broad protection of created material – in large part due to the efforts of Hollywood lobbyists seeking protection from piracy and plagiarism – and the Innocence of Muslims decision seems to be consistent with the stated rule. 

The simple solution is, of course, to have every person associated with a film project sign a waiver of copyright which allows the studio to distribute the movie without concern over one or two individuals who can make claims similar to Ms. Garcia.  While this solution may seem cumbersome, it is necessary under the broad interpretation of copyright law that Hollywood has fought so hard to enforce.

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