Whether YouTube.com must remove an anti-Muslim film that sparked international protests and death threats against an actress will be reconsidered by the federal appeals court that first issued the take-down order.
The 9th U.S. Circuit Court of Appeals issued an en banc order Wednesday, calling for rehearing by 11 judges of its February opinion that YouTube.com remove “Innocence of Muslims” from its site.
An actress who says she was tricked into appearing in an anti-Islamic film that resulted in riots in the Muslim world and death threats against her, won an injunction forcing Google to remove the film from YouTube.
In Feburary, the appeals court, in a 2-1 decision, held that actress Cindy Lee Garcia was entitled to a preliminary injunction against an Egyptian-American Coptic Christian who made an amateur film called the “Innocence of Muslims.”
“While answering a casting call for a low-budget amateur film doesn’t often lead to stardom, it also rarely turns an aspiring actress into the subject of a fatwa,” wrote Chief Judge Alex Kozinski.
The ruling overturns a lower court decision in the copyright case.
Garcia was paid $500 for three days of filming of a minor role in a film called “Desert Warrior,” but the film never materialized. Instead, Garcia’s scene was used in the anti-Islamic film and uploaded to YouTube.com. Her brief performance was partially dubbed over so that she appeared to be asking, “Is your Mohammed a child molester,” according to the court.
This caused outrage in the Muslim world and after the film aired on Egyptian television, worldwide protests generated news coverage and an Egyptian cleric issued a fatwa, calling for the killing of anyone involved in the film. Garcia said she began receiving death threats.
She filed eight takedown notices with Google under the Digital Millenium Copyright Act, but Google resisted. Garcia then sought a restraining order, saying the video infringed her copyright in her performance.
This was denied also because the trial judge said Garcia had granted the film’s producer, Mark Basseley Youssef, an implied license to use her performance in the film.
Youssef, who is also known as Nakoula Basseley Nakoula, had spent time in federal prison on conviction for bank fraud and in 2012, when the uproar began over the film, he faced claims of probation violation.
As Kozinski pointed out, Garcia did not claim a copyright interest in the “Innocence of Muslims,” instead, she claims her performance within the film is independently copyrightable and that she retained an interest in that copyright.
He recognized that Garcia “may have a copyright interest in her performance.” She may assert a copyright interest only to the scene that represents “her individual creativity,” but even if it is a relatively minor.
But he was quick to point out the court is not deciding 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 prevail.”
Now the full 9th Circuit will reconsider and could take the side of the dissenter in Kozinski’s February opinion. Judge N. Randy Smith, in his dissent, argued that Garcia was an employee primarily because Youssef controlled the manner and means of making the film. Because the facts and law do not clearly favor issuing an injunction to Garcia, Smith dissented.
Case: Garcia v. Nakoula, No. 12-57302