“In this case, a heartfelt plea for personal protection is juxtaposed with the limits of copyright law and fundamental principles of free speech. The appeal teaches a simple lesson—a weak copyright claim cannot justify censorship in the guise of authorship.”
When I read those lines, all I could think was, “yes!” Yesterday, Judge Margaret McKeown, a federal judge on the U.S. Court of Appeals for the Ninth Circuit, issued the opinion in Garcia v. Google. With those two sentences, her first two sentences, Judge McKeown put to rest an opinion that has confused many for over a year now.
Before I get ahead of myself, let’s start with a little background. In July of 2011, Cindy Lee Garcia was cast in Desert Warrior; she received $500 and performed for five-seconds. A year later, Mark Basseley Youssef, uploaded a fourteen-minute trailer of his movie Innocence of Muslims to YouTube, owned by Google. This trailer contained Gracia’s five-second clip, however, her lines had been dubbed to say, “Is your Mohammed a child molester?” The video sparked outrage around the world as the Prophet Mohammed was depicted as a murderer and pedophile. And while a manuscript could be written on the theorized effects these fourteen-minutes of video generated, for our purposes, what is most relevant is that Garcia began to receive death threats. This was undoubtedly and understandably upsetting to Garcia who turned to the judicial system for help (after submitting multiple DMCA takedown notices).
In September of 2012, she filed her first lawsuit against Youssef and Google (and others) in state court. She brought a variety of claims against Google and Youssef and requested a temporary restraining order and preliminary injunction. When the court ruled against her, she dismissed her claim and filed in federal court—the very next day. By November of 2012, the District Court for the Central District of California had also denied her request for a preliminary injunction finding that she had granted the film makers an implied license to “distribute her performance as a contribution incorporated into the indivisible whole of the Film.” Garcia appealed.
On February 26, 2014, Judge Kozinski issued an opinion that shocked many. Judge Kozinski reversed the district court and found that Garcia was likely to prevail on her copyright claim, as “Youssef implicitly granted her a license to perform his screenplay.” Needless to say, this was a curious assessment. The court gave Google twenty-four hours to remove all copies of Innocence of Muslims from its platforms.
On March 12, 2014, Google petitioned the court for rehearing en banc. For those who are rusty on Civil Procedure, typically cases in the Court of Appeals are heard by a panel comprised of three judges. Parties may request an en banc hearing where the case is then heard by all judges of the particular court (although the Ninth Circuit, which has 29 circuit court judges, only empanels 11 for en banc hearings). Google’s petition for en banc review was granted. While this was pending, on July 11, 2014 Judge Kozinski amended his opinion to allow YouTube/Google to post versions of the Film that did not include Garcia’s performance.
Yesterday, the court stated, “The amended injunction issued February 28, 2014 is dissolved immediately and has no force and effect.” Reviewing the decision to grant a preliminary injunction, the court had to decide whether Garcia was likely to succeed on the merits. It is important to note here, although Garcia brought suit based on multiple theories, she only requested the injunction under copyright law. The court seems to imply on multiple occasions that she may have been better served had she pursued the injunction utilizing one of the other claims, stating, “Privacy laws, not copyright, may offer remedies tailored to Garcia’s personal and reputational harms.”
That being said, Judge McKeown rejects Garcia’s copyright claim, explaining, “Innocence of Muslims is an audiovisual work that is categorized as a motion picture and is derivative of the script. Garcia is the author of none of this and makes no copyright claim to the film of the script. Instead, Garcia claims that her five-second performance itself merits copyright protection.” During litigation, the Copyright Office found Garcia’s performance was not eligible for copyright. Their basis for this finding, one the court agreed with and seemed to rely upon, was that “longstanding practices do not allow a copyright claim by an individual actor or actress in his or her performance within a motion picture.” The court is also heavy-handed in their reliance on the Aalmuhammed v. Lee decision wherein the court held in 2000 that defining a “work” based upon “some level of creativity or originality… would be too broad and indeterminate to be useful.” 202 F. 3d 1227, 1233 (9th Cir. 2000).
It’s settled then, right? Not so fast. It is worth noting that Judge Kozinski is having none of this. The author of the now overturned opinion from February of 2014, offered his dissent with the following statement, “the majority is wrong and makes a total mess of copyright law… I won’t be a party to it.” He goes onto explain, “Youssef handed Garcia a script. Garcia performed it. Youssef recorded Garcia’s performance on video and saved the clip. Until today, I understood that the rights in such a performance are determined according to elementary copyright principles… Garcia’s performance met these minimal requirements….”
This is the opinion we should have had one year ago. Though, I get this distinct impression we haven’t heard the last of Cindy Lee Garcia or this debate.