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
Fresh on the heels of accepting en banc review of the appeal over the constitutionality of the California Resale Royalties Act, the Ninth Circuit Court of Appeals has decided to rehear Google’s appeal of the injunction against it after actress Cindy Lee Garcia claimed a protectable copyright in her performance of “Innocence of Muslims.” While, as before, one should hesitate to read too much into the mere fact of en banc review, the three-judge panel under review now stands a good chance of being overturned (as it should).
Topics: Copyright Act, en banc, Libya, Youssef, YouTube, Innocence of Muslims, prior restraint, 17 U.S.C. § 106, Copyright, First Amendment, intellectual property, Cindy Lee Garcia, Fair Use, Google, Benghazi, work for hire
The defendants in the case on appeal over the constitutionality of California’s Resale Royalty Act have just briefed the court’s question about whether the full court should rehear the case. Responding to an order that the parties explain whether the case conflicts with recent Ninth Circuit precedent, Christie’s, Sotheby’s, and eBay all argued emphatically that no conflict justifies reinstating the law that a District Court struck down in 2012.
Topics: Legislation, Foie Gras, Resale Royalties, 538 U.S. 644, N. Randy Smith, 729 F.3d 937, Auction Houses, California Health & Safety Code § 25982, Chuck Close, 730 F.3d 1070, Moral Rights, Commerce Clause, Affordable Care Act, Innocence of Muslims, Ass’n des Eleveurs de Canards et d’Oies du Quebec, Judge Jacqueline H. Nguyen, Christie's, Research & Mfrs. of Am. v. Walsh, California Resale Royalties Act, Ethanol, Dormant Commerce Clause, 491 U.S. 324, U.S. Constitution, Copyright, royalties, Garcia, Ninth Circuit, Cal. Code Regs. tit. 17 §§ 95480–90, Sotheby's, Rocky Mountain Farmers Union v. Corey, Healy v. Beer Inst., Ferdinand F. Fernandez, eBay, Google, Low Carbon Fuel Standard, Mary H. Murguia
Like a bad 1980s movie, the most infamous copyright decicion of the year has now spawned a sequel. The Ninth Circuit Court of Appeals has been considering since early March whether to rehear en banc its decision in favor of Cindy Lee Garcia concerning her performance in the movie Innocence of Muslims. Plaintiff Cindy Lee Garcia, one of the actresses in the video, claimed that she had no idea what the movie was to turn out to be when she performed her scenes, and that the Islamophobic audio had been dubbed over whatever she actually said when filming. She then sued, arguing that her performance was an independently copyrightable work, such that the producers needed her permission to distribute and reproduce it. The complaint was universally disregarded by copyright experts when it was filed. This reaction was so nearly unanimous because Garcia’s performance (which, it was later learned, had been denied registration by the Copyright Office) seemed clearly to be a work for hire, or a joint work—if Garcia’s performance even met the other requirements for copyright.
While the appeal by Google of an order to take down any copies of “Innocence of Muslims” awaits a decision by the Ninth Circuit on Google’s request for rehearing, there has been a development back down in the District Court. Cindy Lee Garcia initially sought a preliminary injunction against Google to remove the availability of the video on YouTube, but she also sued many whom she alleged was the producer of the movie—Nakoula Basseley Nakoula, aka Mark Youssef—alleging that she had acted in a project she never knew would be used for the ultimate film, and that her dialogue was dubbed with the words that later caused such uproar and deadly violence. When the preliminary injunction was denied by the District Court (in large part because of the court’s finding that she could not prevail on the merits of her copyright claim that she held an independent right in her acting performance), it appears that the remaining case was stayed as she went up on appeal of the injunction ruling.
Just two days after the parties submitted briefing (including the revelation that Cindy Lee Garcia's registration request had been rejected by the U.S. Copyright Office) on a Ninth Circuit judge's sua sponte request for a vote on whether to rehear the denial of a stay of the Court's February 26, 2014 decision finding a likelihood that Garcia had a copyrightable performance in "Innocence of Muslims," the Court has voted not to reconsider that denial, and the ruling stands in force for now. This decision only affects Google's request not to be required to take down all copies of the video from YouTube while the appeal is pending, a take down that it will now have to continue or be completed. The decision offers no rationale, other than that a majority of the court voted not to stay the matter.
Following up on my recent coverage of Garcia v. Google, I had the opportunity to discuss the suit with Colin O'Keefe of LXBN. In the brief video interview, I explain the Ninth Circuit's initial ruling and why it could prove quite impactful.
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