Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, February 28, 2014

Ninth Circuit Holds That "Innocence of Muslims" Actress Has Copyright Claim In Film

Writing for a majority of the 9th Circuit panel, Judge Alex Kozinski has held that actress Cindy Lee Garcia has made a showing that she has a protectable copyright in the film trailer "Innocence of Muslims," which Google hosted and which she alleges led to threats against her life, and which Google refused to take down after she requested it do so.

Wrote Judge Kozinski in part: 

Whether an individual who makes an independently copyrightable contribution to a joint work can retain a copyright interest in that contribution is a rarely litigated question. .... But nothing in the Copyright Act suggests that a copyright interest in a creative contribution to a work simply disappears because the contributor doesn't qualify as a joint author of the entire work. ... Where, as here, the artistic contribution is fixed, the key question remains whether it's sufficiently creative to be protectible. 

Google argues that Garcia didn't make a protectible contribution to the film because Youssef wrote the dialogue she spoke, managed all aspects of the production and later dubbed over a portion of her scene. But an actor does far more than speak words on a page; he must "live his part inwardly, and then . . . give to his experience an external embodiment." Constantin Stanislavski, An Actor Prepares 15, 219 (Elizabeth Reynolds Hapgood trans., 1936). That embodiment includes body language, facial expression and reactions to other actors and elements of a scene.... Otherwise, "every shmuck . . . is an actor because everyone . . . knows how to read." Sanford Meisner & Dennis Longwell, Sanford Meisner on Acting 178 (1987).

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. ...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."


The majority also rejected the theory that under the work for hire doctrine Garcia was an employee of the filmmaker and therefore could not assert a copyright in the trailer. The filmmaker did not obtain a written agreement concerning Garcia's participation in the activity and "Youssef has claimed only that he wrote the screenplay."

The majority also considered the question of the implied license that Garcia granted Youssef to use the trailer which contained her performance. 

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. A clear sign that Youssef exceeded the bounds of any license is that he lied to Garcia in order to secure her participation, and she agreed to perform in reliance on that lie. Youssef's fraud alone is likely enough to void any agreement he had with Garcia. ... But even if it's not, it's clear evidence that his inclusion of her performance in "Innocence of Muslims" exceeded the scope of the implied license and was, therefore, an unauthorized, infringing use.

With regard to Garcia's request for an injunction and takedown of the trailer, Judge Kozinski wrote in part:

Garcia argues that she suffers irreparable harm both because of the ongoing infringement of her copyright and because that infringement subjects her to continuing, credible death threats. Irreparable harm isn't presumed in copyright cases. ... Therefore, Garcia must show that the damage to her reputation and threats against her life constitute irreparable harm. The district court found that Garcia failed to make this required showing, primarily because she didn't bring suit until several months after "Innocence of Muslims" was uploaded to YouTube. It's true that a "long delay before seeking a preliminary injunction implies a lack of urgency and irreparable harm." ... But this is so because a preliminary injunction is based "'upon [20] the theory that there is an urgent need for speedy action'" and by "'sleeping on its rights a plaintiff demonstrates [a] lack of'" urgency. ...There's no dispute that, here, Garcia took legal action as soon as the film received worldwide attention and she began receiving death threats—in other words, as soon as there was a "need for speedy action." Id. Because the need for immediate action didn't arise until she was threatened, Garcia wasn't dilatory in bringing the lawsuit. The harm Garcia complains of is real and immediate. ... She has provided unrefuted evidence that the threats against her are ongoing and serious, she has already been forced to take significant security precautions when traveling and she moved to a new home and relocated her business as a safety measure. Although past injuries aren't sufficient to establish irreparable harm for purposes of an injunction, id. at 103, Garcia has amply demonstrated that, absent an injunction, she'll continue to suffer concrete harms—whether in the form of ongoing security requirements or actual harm to her person. Beyond establishing that she faces an imminent harm, Garcia must show a "sufficient causal connection" between that harm and the conduct she seeks to enjoin such that the injunction would effectively curb the risk of injury. ... 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. Google argues that any harm arises solely out of Garcia's participation in "Innocence of Muslims" and not out of YouTube's continued hosting of the film. But 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.

Coverage and commentary from the Wall Street Journal here, from CNN here.

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