Google ordered to remove anti-Islamic YouTube film

A US court has told Google to take down an anti-Islamic film from YouTube after finding that one actress’s performance is independently copyrightable.

The ruling is believed to be unprecedented.

In a split decision on February 26, the appeals court sided with Cindy Garcia, who had unwittingly featured in a controversial film called Innocence of Muslims.

Garcia had performed in a separate film that was shelved before production, but her scene was partially dubbed over in Innocence of Muslims so that she appeared to say: “Is your Mohammed a child molester?”

The film, produced as a trailer, was uploaded onto YouTube in 2012. It sparked a wave of anti-American unrest among Muslims in countries including Egypt and Libya for denigrating the Prophet Mohammed.

An Egyptian cleric issued a fatwa, calling for everyone involved with the film to be killed. Garcia soon began receiving death threats.

After Garcia asked Google to remove the film from YouTube, the company refused, though it did block it in countries including Egypt and Libya.

The US District Court for the Central District of California denied Garcia’s takedown request, partly because she failed to show that an order would prevent her any harm.

The court was unable to find whether Garcia has a copyright interest in her performance.

But at the US Court of Appeals Court for the Ninth Circuit, Judges Kozinski and Gouldand said Google should take down the film, arguing that Garcia’s performance is independently copyrightable.

“An actor’s performance, when fixed, is copyrightable if it evinces ‘some minimal degree of creativity’,” said Kozinski, who wrote the opinion.

Without an injunction, he continued, Garcia would suffer irreparable harm because she received death threats.

Judge Smith dissented, arguing that the Copyright Act does not clearly place an acting performance within its sphere of copyrightable works. “As a result, the law and facts do not clearly favour finding a copyrightable interest in Garcia’s acting performance.”

Judge Kozinski admitted that it was a “troubling” case.

“Garcia was duped into providing an artistic performance that was used in a way she never could have foreseen. Her unwitting and unwilling inclusion in Innocence of Muslims led to serious threats against her life,” he said.

“It’s disappointing, though perhaps not surprising, that Garcia needed to sue in order to protect herself and her rights. But she has sued and, more than that, she’s shown that she is likely to succeed on her copyright claim, that she faces irreparable harm absent an injunction and that the balance of equities and the public interest favour her position,” he added.

Garcia’s counsel, Cris Armenta, of The Armenta Law Firm, told WIPR that she was “delighted” with the decision and that taking down the video is the “right thing to do”. Google said that it “strongly” disagrees with the ruling and will “fight it”.

Bruce Ewing, partner at Dorsey & Whitney LLP, said the decision was unprecedented.

“I’m not aware, and nor does the court seem to be, of any other decision in which an actor’s performance in a film is a separately owned copyrighted work,” he said.

“There’s an old saying that hard cases make bad law – and this is one of those. Judge Kozinski is outraged by what has happened to this woman ... but is it copyright infringement? That’s a stretch,” he said.

Ewing said the decision could have major implications for how the film industry works.

“The judge bends over backwards to narrow his holding and to suggest this is a unique case that shouldn’t apply to mainstream films. But anybody in the movie business will have to make sure this doesn’t happen to them.

“Film makers, particularly those that don’t enter into agreements with their actors, might be concerned that an actor could make a claim if the footage is used differently to how they anticipated,” he said.

“If you went on the Internet and took some public domain footage and put it into something new, you could get sued,” Ewing added. “It’s one more rights holder you have to worry about.”

Google could now seek a re-hearing en banc at the US Court of Appeals for the Federal Circuit, or appeal to the Supreme Court.