The full en banc panel of the Ninth Circuit Court of Appeals has reversed the earlier three-judge panel decision concerning a claimed copyright in the notorious Innocence of Muslims film. The full panel rebuked—wisely—the earlier panel’s holding that Cindy Lee Garcia had an independent and enforceable copyright in her acting performance that would allow her to enjoin reproduction of the video (on YouTube, in particular). Garcia’s case failed both for threshold reasons of fixation, and larger issues of copyright and the First Amendment. The case is a sympathetic one, but the ruling that has now been overruled was an unworkable one that needed to be corrected. Many of the problems and ramifications of the earlier opinion that we have noted were echoed in the decision.
Topics: Copyright Act, Libya, Digital Millennium Copyright Act, DMCA, Youssef, YouTube, Innocence of Muslims, prior restraint, 17 U.S.C. § 106, Cindy Garcia, Copyright, First Amendment, Google, Benghazi, work for hire
After last week’s ruling (wrongly decided, in our view) that an actress in "Innocence of Muslims" is likely to prevail on her claim that she had an independently copyrightable performance distinct from the movie itself, anticipation has been high about what might happen next. Google (seeking not to take the video off YouTube) petititoned the original panel unsuccessfully for an emergency stay of the ruling pending petiton for rehearing or to the full panel of Ninth Circuit judges. That stay request was swiftly denied, except that Google was permitted to leave up clips that did not include Cindy Garcia’s performance.
Last year, the Ninth Circuit stood out amongst fair use decisions in its opinion in Seltzter v. Green Day, particularly in contrast to what has persuasively been dubbed the Second Circuit’s "know it when we see it" approach to transformativeness as annunciated in the Cariou v. Prince decision. By contrast, the potentially destabilizing effect of the Ninth Circuit’s highest profile copyright case in 2014 can scarcely be overstated. Unless and until the full court reverses a three-judge panel in Garcia v. Google, Inc., nearly every motion picture will be in peril of "infringement." The consequences for the First Amendment and for free expression would be devastating. Although it was not raised, expect fair use to come into play if the decision stands and the case heads back to the trial court. The film is clearly transformative precisely because the plaintiff argues that her performance was unknowingly changed in service of a message she found offensive.
Topics: Walter Sobchak, Copyright Act, Feist, Prince v. Cariou, Libya, Digital Millennium Copyright Act, DMCA, Youssef, YouTube, Innocence of Muslims, Green Day, Seltzter v. Green Day, Nothing Compares 2 U, prior restraint, 17 U.S.C. § 106, Cindy Garcia, Copyright, Prince, First Amendment, Google, Sinead O’Connor, Benghazi, work for hire