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.