Innocence Of Muslims Actress Now Argues That The Movie Violates Her Copyright

from the that's-a-crackerjack-legal-team-you're-working-with dept

Welcome back, viewers, to another segment in our "How To Look Like A Complete Legal Know Nothing While Also Making Sure You Keep Streisand-ing Yourself Into Oblivion" series of posts here at Techdirt (we're working hard on a new segment name; sorry). Remember when we urged YouTube to not censor the controversial hate-film, "Innocence Of Muslims"? And then do you remember how one of the film's actresses, Cindy Garcia, went bonkers in California state court, seemingly alleging everything she could think of against the film's producers in attempt to force YouTube to take the film down? Remember how everyone was surprised to hear a story involving censorship that didn't have a copyright element to it?

Well, to hell with your surprise, because Cindy Garcia is back in a federal way, and she just claimed copyright infringement (PDF) over her performance and filed DMCA notices to get the film taken down. As Marc Randazza hilariously notes, this is plainly stupid.
An actor’s performance in a film is not an independently copyrightable work. I am surprised that these two attorneys are unfamiliar with this rule of law. They might be well-served to review Aalmuhammed v. Lee, 202 F.3d 1227 (2000). You know, the case that is in pretty much every single copyright textbook published since before the Clinton administration ended. Jesus fucking christ, is it so much to ask that someone take a copyright course before filing a copyright infringement lawsuit?
And that really should be the end to the copyright claim, but certainly not to the liability Garcia may find herself under for attorney and legal fees should she have an anti-SLAPP suit filed against her. The claim here, copyright and otherwise, are obviously made in attempt to get the film, i.e. speech, taken down. No one with even a modicum of understanding of copyright law and precedent could possibly think that she owns the copyright on either the film or her performance. This is settled law. Only the director is recognized as having creative control and, thus, the original copyright on the work. The MPAA and WIPO may be touting new monopoly powers for actors to dictate how their performances are expanded upon, but that wouldn't apply here. And, lest you naively think that this is just Cindy Garcia, non-lawyer, almost-actress being all spurious and whatnot, she has an actual legal team working with her on this, and there is no evidence as of yet that this legal team is actually composed of drunk orangutans. These theoretically non-ape lawyers also have some curious notions about the laws and how this nation operates. The following is from their press release.
“We are seeking the legally appropriate mechanism and the least politically controversial one to allow Google and YouTube to do the right thing,” according to M. Cris Armenta, counsel to Ms. Garcia. “Again, this is not a First Amendment case. But, the First Amendment does protect American’s [sic] rights to freedom to express, and also the right to be free from expression.” In Ms. Garcia’s case, the words that were dubbed over her performance were not hers and she finds them personally and profoundly offensive. Ms. Garcia has publicly stated worldwide, including in live broadcasts to Middle Eastern television stations that she does not condone the message in the film and would never willingly participate in such a hateful venture.
If this does not amount to an immediate rescinding of Armenta's license to practice law, that's a major problem. This is not legally appropriate and it is politically controversial because you're looking to censor speech because your client didn't bother to understand what she was getting into. I'll note again, as I did in my last post concerning Ms. Garcia, that neither she, nor her fellow enraged actors and actresses, were equally enraged for the 4 months or so the trailer was on YouTube before the mainstream media had picked the story up and the protests had begun. Her legal team can dictate all they want that this is not a First Amendment case, but simply saying so doesn't make it so.

Though, I suppose I should not be shocked that Armenta doesn't understand that this is a First Amendment case when he apparently doesn't really know what the First Amendment is. That line up there? The one that includes him telling us how the First Amendment protects our "right to be free from expression"? In case you were wondering, that's made up. There is more reality in the Twilight series than there is in that statement.

So, while I too find the film to be offensive both in taste and in some truly awful production qualities, I hope the film's producer has a competent enough attorney to anti-SLAPP the crap out of Garcia's copyright suit. The fact of the matter is that the movie business wouldn't be able to survive if the court said individual actors owned the copyrights on their own performance.


Reader Comments (rss)

(Flattened / Threaded)

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    fogbugzd (profile), Oct 9th, 2012 @ 7:12am

    At some point attorneys need to be held liable for their actions. SLAPP laws should include sanctions against the attorneys who file them because these types of lawsuits have a clear intent to abuse the legal system.

     

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      :Lobo Santo (profile), Oct 9th, 2012 @ 8:31am

      Re: and yet

      Such a law will never be passed or enforced, as most judges and legislators were attorneys first.

       

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      gorehound (profile), Oct 9th, 2012 @ 8:32am

      Re:

      And so say we all !
      This woman can just smell the money.Hopefully it will be her who parts with her pitiful bank account in the End.
      Typical Greedy Person who thinks she can Win herself a Lottery.

       

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    Machin Shin (profile), Oct 9th, 2012 @ 8:41am

    Maybe different motives?

    I for one look at this and kind of wonder if maybe making a lot of noise is the entire point of this. She found herself in a movie that might make certain people want to hurt her. As a result doing things like this while making her look stupid could very well help direct anger away from her.

    Of course... That could just be me holding out hope that there are not really such total morons out there.

     

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    Anonymous Coward, Oct 9th, 2012 @ 8:54am

    'The fact of the matter is that the movie business wouldn't be able to survive if the court said individual actors owned the copyrights on their own performance.'

    They would get the law changed. This actresses action is based on the example of the minimalists, wher copyright has to be cleared for almost all bought items.

     

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      Anonymous Coward, Oct 9th, 2012 @ 9:04am

      Re:

      "This actresses action is based on the example of the minimalists, wher copyright has to be cleared for almost all bought items."

      Actually, that would be "maximalists", not "mimimalists".

       

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      Anonymous Coward, Oct 9th, 2012 @ 9:26am

      Re:

      The law doesn't need to change. The movie business is based on contracts wherein actors agree their performances are works made for hire and also assign all rights to their performances as a backup provision.

       

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    sehlat (profile), Oct 9th, 2012 @ 8:57am

    She Is Now Officially Unemployable As An Actress

    Who in their right mind would hire her after trying this stunt? She's made it right and plain that, if she doesn't like what the producers did with her work, she will sue.

    Admittedly "Innocence" is a pretty egregious example, but nobody would have any faith that she wouldn't do it later for something even less egregious.

     

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      fogbugzd (profile), Oct 9th, 2012 @ 9:19am

      Re: She Is Now Officially Unemployable As An Actress

      >>Who in their right mind would hire her after trying this stunt?

      From the part of the movie I saw, I don't think she has to worry about getting hired again by any producer.

       

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    Ninja (profile), Oct 9th, 2012 @ 9:21am

    It's a fitting development for a lame movie. With this move it's probable she completely trashed her reputation as an actress. Not to mention she has some moronic extremist Islam followers after her head already. She should be srsly laying low instead of attracting the spotlights.

     

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    Anonymous Coward, Oct 9th, 2012 @ 9:26am

    IS the agreement to act in the film a contractual relationship? Could the director's deception about the film's contents be considered as misrepresentation to the degree it allows the contract to be voided?

    It seems reasonable to assume that were the full nature of the intended film disclosed, some individuals would not have chosen to associate themselves with it.

     

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      G Thompson (profile), Oct 9th, 2012 @ 9:52pm

      Re:

      True and if you read the post by Mr Randazza he even states that there could be some cause of action (ie: fraud, unfair business practice, etc) though it is definitely not copyright!

      Instead by actually filing this action herself she (as well as her attorneys) and for submitting a claim have set them selves up for fraud especially with regards to: “filed an application for a federal copyright registration for the rights in her dramatic performance ‘Desert Warrior.’” (Complaint at ¶ 11) and “has issued five DMCA ‘takedown notices’ to Defendants YouTube and Google.” (Complaint at ¶ 13)

      Not a good thing and either her attorneys are incompetent or stupid, personally I think it's both

       

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    Applesauce, Oct 9th, 2012 @ 9:28am

    Actual Law is irrelevant.

    It doesn't matter that she has nothing to stand on in copyright law. Court Cases, if successful, create new law. A lawsuit is never about following the law, it is about WINNING. And the thing to remember is that surprising verdicts are often rendered that make no sense to an ordinary person's interpretation of the law. The Orangutans mentioned are probably savvy enough to know this. They are rolling the dice and they might actually win, law as written be damned. Long odds, true, but others have won before.

     

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      Michael, Oct 9th, 2012 @ 9:52am

      Re: Actual Law is irrelevant.

      "Court Cases, if successful, create new law"

      I will assume, for the moment, that you do not live in the United States - which is where this is happening.

      In this country, Congress creates new laws (often, apparently, with the help of the entertainment industry). The court system interprets and applies these laws. In some cases, it can use general consensus to negate laws (jury nullification), but it has no way to create law.

       

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        Applesauce, Oct 9th, 2012 @ 11:38am

        Re: Re: Actual Law is irrelevant.

        Actually, I do live in the US.

        Your description of how only Congress makes the laws is true, but only in theory. By using their (often creative and elastic) power to interpret the laws, courts DO create new law.

        I have, to my sorrow, personally experienced this. One example that most people are familiar with is last year's Citizen's United ruling from the Supreme Court, which ruled that corporations are persons with the same free speech rights as 'real' people. This was never established by Congress or by the state legislatures that charter corporations, but is now law of the land.

         

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          Anonymous Coward, Oct 9th, 2012 @ 6:58pm

          Re: Re: Re: Actual Law is irrelevant.

          Mike, where the hell's that sad but true button we've been waiting for?

           

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    DSchneider (profile), Oct 9th, 2012 @ 9:35am

    Unfortunately

    The "right to be free FROM expression" is one way to many people think they have. Hence all the stupid lawsuits we see here on this site over bad reviews or comments that offend someone. So Mr. Armenta has no monopoly on this kind of stupidity as there are no shortage of lawyers willing to push cases like this.

     

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    Lord Binky, Oct 9th, 2012 @ 9:42am

    What is she doing? I had already forgot about her. She could have already slipped back into obscurity if she wanted to.

     

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    Not an Electronic Rodent (profile), Oct 9th, 2012 @ 9:47am

    OOK!

     

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    OC, Oct 9th, 2012 @ 9:58am

    From what I read about this mess the words spoken by the actors are no longer in the movie. They were dubbed and the dialogue in the movie is completely different from what they were actually saying.

    It looks like Tim says the actress should have known this would happen which is quite strange. (... your client didn't bother to understand what she was getting into.) Basically, that every duped person only has him or herself to blame.

    I don't think this is a copyright case either, and hope it doesn't go further, but I do think it's soem kind of fraud committed when the actors are used in this way. I'll leave the details for others to decide on though.

     

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      Dark Helmet (profile), Oct 9th, 2012 @ 10:11am

      Re:

      Yes, the complete dupe ruse the film's producers pulled on her must be why she was so outraged for the four months the trailer was on YouTube before all this became news.

      Oh, wait....

       

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        OC, Oct 9th, 2012 @ 12:10pm

        Re: Re:

        So you maintain that it's her fault for being tricked? And how long after it's public was she, in your opinion, allowed to wait before filing lawsuit? Bearing in mind that she may not have wanted to bring this into the open, hoping it would go mostly unnoticed.

         

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          Rikuo (profile), Oct 9th, 2012 @ 12:49pm

          Re: Re: Re:

          She knew of the film's existence, obviously being an actress in it. One would think that she would have at least watched it on Youtube once.
          Now, I am not a lawyer nor do I have access to the contract she (must have) signed with the director. If she wants to sue him because he over-dubbed her lines, fine. However, it doesn't mean she has a copyright claim to the movie. As Tim states, she would have signed a work-for-hire contract, meaning she gave up any and all copyright claims. And no, just because the director over-dubbed her lines, more than likely doesn't mean suddenly she gets her copyrights back: otherwise, you'd have actors suing left right and centre every time a director cuts a scene.

           

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            OC, Oct 9th, 2012 @ 1:55pm

            Re: Re: Re: Re:

            Both Tim and I appear to agree that this isn't a copyright case. That's not what I had a problem with.

             

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              Rikuo (profile), Oct 9th, 2012 @ 3:21pm

              Re: Re: Re: Re: Re:

              Oh, my apologies.

              Fraud? Hmm, it is a tough one. The director more or less has complete creative control over a movie. So, cutting scenes, adding effects, changing dialogue, they're all part of what he is allowed to do. Unless the contract between the actress and the director gives the actress some measure of control over what ends up in the final product...I'm afraid that in my opinion, she's out of luck.
              That is my viewpoint. Feel free to point out where I may be wrong.

               

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            Cindy Garcia, Feb 17th, 2013 @ 6:48am

            Re: Re: Re: Re:

            I t was not a work for hire, the casting call back stage says so. Never signed a contract for hire, only IMDb credits. The document that google came up with is a fake document. Proven had it analyzed by a forensic handwriting specialist.
            I only wanted to clear my name not be tied to the death of our ambassador & navy seals. I thought America would give a damn, But no they protect a federal snitch, the man who wrote the nightmare film then put it on the you tube. I had no idea someone would make death threats against me when I came forward, actually the media came after me, I did not go after them, this all is embarrassing to me. All i did was want to clear my name. As far as suing anyone I was not gonna go there, but I am dealing with liars and all they have done is piss me off. Yes now I am fighting this thing. As far as Hollywood goes they have nothing to do with what this guy did. He did this with a agenda to stir up trouble. Myself I think this video was a smoke screen to cover up other crap that was really going on. I happen to care about what happened to our Ambassador & Navy Seals. And I am no coward I have nothing to hide.

             

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            Cindy garcia, May 31st, 2013 @ 10:19am

            Re: Re: Re: Re:

            This was not a work for hire as posted in the original casting call backstage. Look it up only signed for IMDb credits which never came forward. The original film was supposed to be Dessert Warrior. The name was changed our lines were dubbed over. I had a forinsic handwritten specialist investigate the document that Sam came up with. None of the other actors signed on either. I don't want my name tied to any of this . The killing of our Ambassador and others. What the hell is wrong with all u people. Talk about brain dead.

             

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    Anonymous Coward, Oct 9th, 2012 @ 4:22pm

    The claim of copyright in her performance is not particularly farfetched. Here's one lawyer's analysis of the claim, http://www.jonathanpinkesq.com/actress-claims-copyright-protection-in-her-performance-can-you-do-tha t (with legal citations), as well as a rebuttal to a colleague who disagreed with him. http://www.jonathanpinkesq.com/eric-goldmans-comments-on-my-post-of-last-week-regarding-actresss-rig ht-to-sue-for-copyright-infringement

     

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    Anonymous Coward, Oct 9th, 2012 @ 6:53pm

    ROFL Bullshit! She goddamn "I know I know" well knew what she was doing.

     

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    Androgynous Cowherd, Oct 20th, 2012 @ 9:10pm

    Defamation?

    If her performance was altered after the fact, e.g. by overdubbing, in a way that she feels portrays her in a false and negative light, why doesn't she just file a defamation claim, instead of attempting a bogus legal theory that's bound to fail and may even backfire badly?

     

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    Cindy Garcia, Nov 3rd, 2012 @ 3:08am

    the innocence of Cindy Garcia

    You people are clueless, none of you know me. I have rights as well. That man put words in my mouth that I did not say, I followed my script. He changed it, I spoke with Him, he told me to tell the world that I was innocent that it was he who wrote this script the way he did because he was tired of radical Muslims killing innocent people. I would never agree to that. I know what I signed and no one is going to slap a law suite on me you dummy. I have done no wrong. I want my name cleared and will go ton every length according to our laws to do it. So put that in your pipe and smoke it, because it sounds to me like you are high on something. As far as me being money hungry there again you have me wrong. What I get goes to help orphans and widows. So before you start putting your mouth on people get to know who they are..............

     

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