The 9th Circuit Court of Appeals ordered YouTube.com (owned by Google) to remove the 14-minute film trailer The Innocence of Muslims from its site.
The Court of Appeals reversed a decision by a federal district court that denied an injunction sought by Cindy Lee Garcia, an actress who appeared in the film for only about five seconds.
Garcia had sued YouTube, Google, and Naloula Basseley Nakoula, the film’s producer, among others.
Garcia had been cast in a minor role in a film with the working title Desert Warrior, a historical adventure with no religious content. She received $500 for three-and-a-half days of work.
However, Desert Warrior was never released. Instead, Garcia’s performance was used in a trailer for The Innocence of Muslims. (A full-length film by that name apparently does not exist.)
Garcia learned how her performance had been used when the trailer was uploaded to YouTube. Her lines had been partially dubbed over so that she appeared to be asking a question highly offensive to Muslims.
When Egyptian television aired segments of the trailer in 2012, violent protests broke out in several countries in the Middle East and Northern Africa, leading to dozens of deaths. Garcia began receiving death threats after an Egyptian cleric called for the death of anyone associated with the film.
According to Judge Alex Kozinski of the 9th circuit, “While answering a casting call for a low-budget amateur film doesn’t often lead to stardom, it also rarely turns an aspiring actress into the subject of a fatwa.”
Kozinski wrote that Garcia was duped into providing a performance that was used in ways she could not have foreseen, leading to threats against her life.
The 9th Circuit held that the filmmakers had likely exceeded any implied license to use Garcia’s performance.
Google argued that Garcia’s “didn’t make a protectable contribution to the film” that would allow her to make a copyright infringement claim. Google noted that Nakoula wrote the dialogue that Garcia spoke, managed the production, and dubbed over Garcia’s scene.
YouTube and Google contended that granting Garcia’s request for an injunction before deciding whether Garcia actually had a protectable copyright interest in the film was an unconstitutional prior restraint on freedom of speech.
The 9th Circuit responded that the First Amendment does not protect copyright infringement.
The district court had ruled that Garcia could not claim to be an author of the film and thus could not establish copyright ownership. One member of the three-judge Circuit Court panel agreed, saying that Garcia’s performance was not a “work” protected by copyright law and that she was not an “author” of the film. The two other judges on the panel disagreed.
Although Garcia only asked for her own performance to be removed from the trailer, the 9th Circuit ordered the entire trailer taken down.
Google issued a statement that it strongly disagreed with the ruling and would fight it.