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“Innocence of Muslims” copyright decision condemned

Michael Loney, New York

A Ninth Circuit decision in Garcia v Google has shocked copyright practitioners, who warn its impact could be vast. Judge Alex Kozinski this week ruled that the film “The Innocence of Muslims” violated actor Cindy Garcia’s copyright, and that Google must remove it from YouTube

The case’s background is that Garcia was told she was acting in an adventure film set in ancient Arabia but it turned out to be an inflammatory anti-Islamic film. Her voice was overdubbed at one point in the film to say: “Is your Mohammed a child molester?” The film resulted in a fatwa being issued and Garcia receiving death threats.

Garcia claimed she had been duped and sued for copyright infringement after Google-owned YouTube refused her request to take the film down. She argued that she retained copyright in her contribution.

Separately, President Obama’s administration put pressure on Google to take down the film but it refused.

Judge Kozinski in his opinion called this “a rarely litigated question”. He wrote: “Nothing in the Copyright Act suggests that a copyright interest in a creative contribution to a work simply disappears because the contributor doesn’t qualify as a joint author of the entire work.” He concluded that Garcia may claim copyright interest in the “portion of her film that represents her individual creativity”.

The reaction on social media to the decision was swift and damning. It was described by various IP practitioners and observers on Twitter as a “ghastly” and “shockingly bad” decision, with one tweeter asking: “What alternate universe is Kozinski writing from?” (See the Storify story below for a round-up of all the best responses from social media.)

In a blog post, law professor Jonathan Turley pointed out the decision has far-reaching consequences:

The obvious concern is that actors will in the future be pressured to claim the same misrepresentation in demanding the removal of controversial films,” he said. “While I have tremendous respect for Kozinski, I share the concern with the dissenting judge that he is creating new law and overriding a trial judge who is ordinarily given great deference as the fact finder in such cases.

Turley said the decision “would create a new possible weapon to use against controversial films”. He continued: “Google has been showing a commendable commitment to free speech in a variety of cases and controversies. It is promising to continue this fight which would involve either an en banc appeal (which would be advisable) and/or a petition to the Supreme Court.”

Lee Gesmer, founding partner at Boston law firm Gesmer Updegrove, said it is not clear how much of a precedent the decision sets.

“It’s difficult to predict whether this case will be a significant legal precedent,” Gesmer said in a blog post. “The idiosyncratic facts were sympathetic to Ms Garcia, who appears to have been the victim of a fraudulent filmmaker, and who suffered unusual harm as a consequence. However, independent of these facts, the Ninth Circuit has held that an actor or actress owns an independent copyright interest in a film performance, reminding every non-fraudulent film producer to obtain a written copyright assignment from every performer.”

Digital rights group Electronic Frontier Foundation (EFF) was quick to condemn the decision. The EFF said the decision blows past the First Amendment concerns with its observation that the “First Amendment does not protect copyright infringement”. The EFF countered that neither are copyright cases immune from the same balancing test that applies to any injunction. Secondly, it said the case’s merits are doubtful, with Garcia’s claim of an interest in her performance a “novel theory, and one that doesn’t work very well here”.

The Foundation concluded the decision sends a troubling signal.

“Based on nothing more than a tenuous (at best) copyright claim, the court has ordered a service provider to censor a video that has been the subject of considerable debate and comment, with only the most cursory analysis of the speech harms it will cause,” said the EFF. “If Garcia had brought a claim under virtually any other theory, we expect the court would have taken more care. Unfortunately, it seems copyright exceptionalism has won the day.”


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