We've been following the saga of Cindy Garcia
for quite some time now. She appeared in the now infamous YouTube film "Innocence of Muslims" that attracted worldwide attention after it was blamed for various riots and fatwas from extremist Muslims, because the horribly scripted, produced and acted film is clearly insulting to the religion. While the video had been out for months prior to the controversy, once it started generating so much attention, Garcia tried pretty much every trick in the book to make the movie disappear. She sued
both the producer and YouTube in California state court. That failed. Then she moved on to federal court, where she claimed that the movie violated her copyright
, an argument that is and has always been laughable. We assumed, naturally, it would fail quickly -- and it did. However, she and her lawyers kept arguing
, and in a somewhat shocking -- and incredibly troubling -- move, the 9th Circuit appeals court has ruled in her favor
, in a ruling written by Judge Alex Kozinski.
We've written about Kozinski
plenty of times in the past. He's one of our (and many court watchers') favorite judges for his willingness to speak in a straightforward manner and his similar proclivity to make jokes and poke fun at himself. While we often do agree with him, in the cases where we don't
, we often find his reasoning truly perplexing, and that is absolutely true in this case. Kozinski seems to tie himself up in a whole variety of questionable knots to find that (a) Garcia has a copyright interest in the film and (b) Google should be forced to take down every instance of the film. The ruling creates massive problems for both basic copyright law and the First Amendment. And it's actually a case where -- believe it or not -- Google and the MPAA might even be on the same side once Google likely asks both the 9th Circuit to review and/or the Supreme Court to consider the case as well. A ruling that would put both Google and the MPAA on the same side of a copyright issue? Yes, that's going to be a strange ruling indeed.
The key issue is that Garcia claims her performance is independently copyrightable from the film. This claim is preposterous. No film has ever worked that way, where the actors could make a claim to a separate copyright for each performance. In fact, just a couple years ago, a bunch of countries signed a new treaty
to give actors a kind of copyright-like right in their roles in certain cases
, which more or less explicitly recognizes that actors do not
get to copyright their own performance. Furthermore, as far as I know, the US hasn't done anything to implement the details of that Beijing Treaty (nor has it even ratified it
), so it's not like any of those new rights should apply yet, and it doesn't appear that Kozinski relied on any of them anyway.
Instead, Kozinski goes through a detailed explanation for how each actor in a film may be able to claim some sort of copyright in their own performance, because of the creative elements they add to it.
An actor’s performance, when fixed, is copyrightable if it evinces “some minimal degree of creativity . . . ‘no matter how crude, humble or obvious’ it might be.” .... That is true whether the actor speaks, is dubbed over or, like Buster Keaton, performs without any words at all. Cf. 17 U.S.C. § 102(a)(4) (noting “pantomimes and choreographic works” are eligible for copyright protection). It’s clear that Garcia’s performance meets these minimum requirements.
Aalmuhammed isn’t to the contrary because it does not, as the dissent would have it, “articulate general principles of authorship.” Dissent 25. Aalmuhammed only discusses what is required for a contributor to a work to assert joint ownership over the entire work: “We hold that authorship is required under the statutory definition of a joint work, and that authorship is not the same thing as making a valuable and copyrightable contribution.” ... Aalmuhammed plainly contemplates that an individual can make a “copyrightable contribution” and yet not become a joint author of the whole work. Id. For example, the author of a single poem does not necessarily become a co-author of the anthology in which the poem is published. It makes sense to impose heightened requirements on those who would leverage their individual contribution into ownership of a greater whole, but those requirements don’t apply to the copyrightability of all creative works, for which only a “minimal creative spark [is] required by the Copyright Act and the Constitution.”
This doesn’t mean that Garcia owns a copyright interest in the entire scene: She can claim copyright in her own contribution but not in “preexisting material” such as the words or actions spelled out in the underlying script. 17 U.S.C. § 103(b);.... Garcia may assert a copyright interest only in the portion of “Innocence of Muslims” that represents her individual creativity, but even if her contribution is relatively minor, it isn’t de minimis.... We need not and do not decide whether every actor has a copyright in his performance within a movie. It suffices for now to hold that, while the matter is fairly debatable, Garcia is likely to prevail.
However, as the dissenting opinion points out, this is hogwash. Actors don't have any copyright interest in their performance and that's clear from the law and this history of copyright:
Congress has listed examples of copyrightable works, like architectural works, motion pictures, literary works, and pictorial or sculptural works. Id. The nature of these works is significantly different from an actress’s individual performance in a film, casting doubt on the conclusion that the latter can constitute a work....
Section 101 of the Act is also instructive, because it differentiates a work from the performance of it. It defines “perform a ‘work’” to mean “to recite, render, play, dance or act it.” 17 U.S.C. § 101 (emphasis added). Given this provision, it is difficult to understand how Congress intended to extend copyright protection to this acting performance. While Congress distinguishes the performance from the work itself, the majority blurs this line. Its position contemplates something very different from amalgamating independently copyrightable interests into a derivative work. See id. at § 103(b).
Consistent with section 101, section 102(b) outlines that which is not given copyright protection. It states: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” An acting performance resembles the “procedure” or “process” by which “an original work” is performed. Id. Therefore, “[i]n no case does copyright protection” extend to an acting performance, “regardless of the form in which it is described, illustrated, or embodied in” the original work.
Kozinski then argues that Garcia's performance doesn't qualify as a work made for hire (which does seem slightly bizarre, but the work made for hire rules are fairly specific and might not apply here). However, even here, Kozinski makes a troubling statement that may be a dangerous precedent. In arguing that the nutty guy behind the film, Mark Basseley Youssef, is not "in the business of film making," Kozinski states:
There’s nothing in the record to suggest that Youssef was in the “regular business” of making films.... He’d held many jobs, but there’s no indication he ever worked in the film industry. And there’s no evidence he had any union contracts, relationships with prop houses or other film suppliers, leases of studio space or distribution agreements. The dissent would hold that Youssef was in the “regular business” of filmmaking simply because he made “Innocence of Muslims.” But if shooting a single amateur film amounts to the regular business of filmmaking, every schmuck with a videocamera becomes a movie mogul.
Except, um, no. In an era in which people can come from nowhere and make amazing films -- then, yes, "every schmuck with a videocamera" can
be "in the business of making films." There is nothing in copyright law that says you have to be a "movie mogul" to qualify, and it's troubling both that Kozinski implies that only "movie moguls" get to make use of the works made for hire doctrine and
that small independent first-time filmmakers not entrenched in Hollywood somehow have fewer rights.
As for the "implied license" that Garcia gave to Youssef by performing in his film, Kozinski makes yet another highly problematic argument, that because Youssef changed her performance, it went outside the license. Even after admitting that such a ruling would be problematic in that it "could allow an actor to force the film's author to re-edit the film--in violation of the author's exclusive right to prepare derivative works" or that "the actor could prevent the film's author from exercising his exclusive right to show the work to the public," Kozinski still seems to think that Garcia can do exactly that in this case, because the film turned out to be quite different from what Garcia was told it would be.
Garcia was told she’d be acting in an adventure film set in ancient Arabia. Were she now to complain that the film has a different title, that its historical depictions are inaccurate, that her scene is poorly edited or that the quality of the film isn’t as she’d imagined, she wouldn’t have a viable claim that her implied license had been exceeded. But the license Garcia granted Youssef wasn’t so broad as to cover the use of her performance in any project. Here, the problem isn’t that “Innocence of Muslims” is not an Arabian adventure movie: It’s that the film isn’t intended to entertain at all. The film differs so radically from anything Garcia could have imagined when she was cast that it can’t possibly be authorized by any implied license she granted Youssef.
While he notes this situation "will be extraordinarily rare," you can pretty much bet that plenty of actors who are later upset with how a director/editor handled their performance in films will cite this ruling in the inevitable lawsuits. This ruling is going to lead to a ton of really ridiculous lawsuits from actors upset about how a filmmaker portrays them in a final cut of a film.
The next problematic argument is that, given all of this, Garcia still needs to show irreparable harm from keeping the video up. And yes, as Kozinski notes, death threats do seem like a form of irreparable harm. But, the "harm" has to result from the infringement
, since it's a copyright claim
that she's bringing. Kozinski is somehow convinced that's the case, though his explanation doesn't seem to actually provide any explanation.
Despite her understandable focus on the threats against her life, Garcia has brought a copyright action. Therefore, she needs to show that the harm she alleges is causally related to the infringement of her copyright.
She’s made such a showing. Youssef’s unauthorized inclusion of her performance in “Innocence of Muslims” undisputedly led to the threats against Garcia.
That seems like a huge stretch, and one totally unrelated to the copyright
issue, again setting a dangerous precedent for future copyright abuses.
Then there's the simple fact that taking the film off YouTube now doesn't seem likely to stop people from (a) knowing the film exists or (b) knowing that Garcia was in it. Yet, Kozinski again seems to find this argument compelling.
Garcia has shown that removing the film from YouTube will help disassociate her from the film’s anti-Islamic message and that such disassociation will keep her from suffering future threats and physical harm. Although Google asserts that the film is so widespread that removing it from YouTube will have no effect, it has provided no evidence to support this point. Taking down the film from YouTube will remove it from a prominent online platform—the platform on which it was first displayed—and will curb the harms of which Garcia complains.
On to the basic First Amendment issue. As the dissent points out, even given all of this, ordering Google to pull down the entire video is classic prior restraint. But Kozinski brushes that aside by arguing that it's okay because this is copyright infringement.
The problem with Google’s position is that it rests entirely on the assertion that Garcia’s proposed injunction is an unconstitutional prior restraint of speech. But the First Amendment doesn’t protect copyright infringement.
The dissent points out that Kozinski is wrong, in part because the court never even rules that there is copyright infringement going on here, just that Garcia may
have a copyright interest in her acting performance (something the dissent disagrees with entirely). But even if we accept Kozinski's interpretation, just because Garcia may have a copyright interest, no infringement has yet been shown, and thus issuing the takedown is prior restraint in violation of the First Amendment.
If all of this wasn't troubling enough, Kozinski made things even worse. He not only issued the order a week ago to Google to remove all copies of the video (and prevent any future uploads -- hello prior restraint...) but also
issued a gag order forbidding anyone to talk about this until today, once the order was out. In other words, not only did the court order the film censored, but it put a gag order on anyone revealing that the film had been censored, which raises yet another
First Amendment issue, which hopefully Google will appeal.
Google, Inc. shall take down all copies of “Innocence of Muslims” from YouTube.com and from any other platforms under Google’s control, and take all reasonable steps to prevent further uploads of “Innocence of Muslims” to those platforms. Google shall comply with this order within twenty-four hours of the issuance thereof.
Neither the parties nor counsel shall disclose this order, except as necessary to the takedown process, until the opinion in this case issues. This order will remain in effect until such time as the district court enters a preliminary injunction consistent with our opinion.
Almost everything about Kozinski's ruling here is troubling. The copyright interpretation just seems very far out of bounds with just about everything having to do with copyright law. It will create tremendous problems for the film industry. The First Amendment implications of both the takedown and
the gag order are similarly troubling. Hopefully, either the full 9th Circuit will rethink this issue, or the Supreme Court will take an appeal and set the 9th Circuit straight.