Lawyers for both Google and the actress who faced death threats over an anti-Muslim film faced tough questions from 11 appellate judges over whether the courts should have ordered the film taken down from Youtube.
In February, Cindy Lee Garcia, the actress who says she was tricked into appearing in an anti-Islamic film, “Innocence of Muslims,” that resulted in riots in the Muslim world and death threats against her, won an injunction from the 9th U.S. Circuit Court of Appeals forcing Google-owned YouTube to remove the film.
But the full court said it wanted to reconsider the case in the face of the implications for copyright law.
Garcia, whose three days of filming for a low-budget movie she thought would be called “Desert Warrior,” instead found five seconds of her performance in a YouTube trailer for the amateur film, Innocence of Muslims,” by an Egyptian-American Coptic Christian.
Garcia argued she had a copyright to her performance and wanted it removed.
“If she is unlikely to succeed in the copyright claim, how do we balance the harm,” for the purposes of an injunction, asked Judge Margaret McKeown, who did a majority of the questioning.
She also asked if everyone appearing in a battle scene of Lord of the Rings has a copyright to their cameo performance.
Cris Armenta, Garcia’s lawyer, argued that in most instances of an implied consent there is not a problem but for those filmmakers with a bad intent or who lie to performers there is a claim.
“That sound like a fraud or right of publicity claim,’ said McKeown.
Judge Connie Callahan asked, “What if the people who performed in a Lord of the Rings’ battle scene ended up somewhere else?”
But Google came in for tough questions as well.
Judge Alex Kozinski asked how is Garcia different from Celine Dion, who sang the theme for the movie Titanic but also had a copyright for that work, which was a fragment of the movie, to be released as a stand-alone song.
Neal Katyal, attorney for Google, argued that Garcia, unlike Celine Dion, never intended that her performance was a separate work of authorship.
“Not so fast,” Kozinski said, “she claims a copyright to three days of her performance and that five seconds was stolen and put on YouTube.”
Katyal argued that at this point Garcia only has a right to damages and not to alter copyright law in a way that would fragment movies into thousands of potential copyright claims. “The toothpaste is out of the tube. The movie is on other platforms [than YouTube]” and the “judge said he can’t repair the harm.”
Callahan responded, “So isn’t money the only thing that will solve her problem? And if it is money, we don’t issue injunctions?”
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 an injunction, 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 in writing the majority opinion in the February three-judge decision, 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.
In dissent, Judge N. Randy Smith, 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