It’s a scary rabbit hole. The Hollywood Reporter says Cindy Lee Garcia was told she would star in an “innocent adventure film Desert Warrior, but instead was “duped into providing an artistic performance … that led to serious threats against her life.” The infamous film, Innocence of Muslims, was viewed by the faithful as blasphemous to the Prophet Muhammad and protests against it have led to hundreds of injuries and more than 50 deaths worldwide.
Now the film and an actress’ performance in it has become a matter judicial, with the U.S. Court of Appeals for the Ninth Circuit and Chief Judge Alex Kozinski holding recently that just because thespian Garcia isn’t a joint author doesn’t mean she doesn’t have a copyright interest in her own performance. Kozinski further said an actor’s fixed performance may be copyrighted if it meets a minimum level of creativity and rejected the possibility that Garcia’s performance was a work for hire.
This all means, the 2-1 divided appellate court said, that Google must yank all copies of Innocence from all of its platforms, including YouTube. Though the court issued a gag order so parties can’t comment on the case, the Internet’s full of Netizen’s bile about this case.
Google filed an emergency motion for a stay pending disposition of petition for rehearing en banc requesting that the video remain accessible while the net giant seeks further review. The appellate court denied the emergency motion, ordering Google to remove the original video and rejected Google’s request that the movie should remain outside of the five seconds Garcia appeared in the movie.
What was the court thinking, granting an individual who may not have a presumed interest in a work the prospect of copyrights, even when the individual may appear in fleeting instance? Kozinski said that, “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 . . . an actor does far more than speak words on a page. . . [the actor must] live his part inwardly, and then give to his experience and external embodiment.” The court did limit Garcia’s copyright to her own contribution and not “preexisting material” such as the script, but this case still creates big new liability for Internet Service Providers like Google.
Ordering Google to take down the film creates a substantial burden on an ISP. The Digital Millennium Copyright Act “provides safe harbor from liability only when ISPs respond expeditiously to notices from copyright owners.” A Google search for “Innocence of Muslims” provides more than 5.3 million results and a YouTube search provides about 51,600 results. Should Google, an ISP, be responsible for this substantial burden of removing all content relating to Innocence of Muslims?
Netizens are buzzing about what many are calling a “blockbuster” and even “spurious” decision, which others decry as a violation of the First Amendment. The Hollywood Reporter, besides its breaking coverage of the case, also has a report with sight lines into some behind-the-scenes legal maneuvering, saying Google had early warning of the adverse and sweeping ruling.
The trade pub also urges court watchers to anticipate armies of amicus filers, especially from various parties in the movie business trying to figure what the Ninth Circuit’s ruling might mean for copyrights for actors, directors, writer, producers and others in the industry.
Indeed, in his dissent, Judge N. Randy Smith questions how Kozinski and Judge Ronald M. Gould can see an actress, reading someone else’s words and taking direction, then having her work edited further still, can claim authorship rights in a performance. His analogous references also raise questions as to what claims creatives in the music industry might make, based on their performances throughout the recording process. Smith also chides his colleagues for overlooking long history and legal fact that make acting work for hire.