Ninth Circuit Rules Google Must Remove “Innocence of Muslims”

maxresdefaultkozinskiA divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled today that Google must remove a low-budget YouTube film that prompted riots and killings in the Muslim world as insulting to Mohammad. The highly offensive film portrays Mohammad as a sexual deviate who invented a religion to serve his own desires. Google has been under pressure from President Obama and others to take down the film. While President Obama publicly insisted that the United States stood by the first amendment, his Administration repeatedly tried to privately force Google to yield to the demands. It correctly refused. However, the same result was achieved today by Cindy Lee Garcia, an actress in the film who was received considerable criticism and hate mail for appearing in the film. She insisted that she was tricked into the role and claimed a copyright violation. The decision in Garcia v. Google, Inc. was written by Chief Judge Alex Kozinski (right).

Kozinski lays out the facts in the first paragraph:

The film’s writer and producer, Mark Basseley Youssef—who also goes by the names Nakoula Basseley Nakoula and Sam Bacile—cast Garcia in a minor role. Garcia was given the four pages of the script in which her character appeared and paid approximately $500 for three and a half days of filming. “Desert Warrior” never materialized. Instead, Garcia’s scene was used in an anti-Islamic film titled “Innocence of Muslims.” Garcia first saw “Innocence of Muslims” after it was uploaded to and she discovered that her brief performance had been partially dubbed over so that she appeared to be asking, “Is your Mohammed a child molester?”

Garcia insisted that she was duped and thus never agreed to the movie. The court found that the alleged deception by Youssef nullified Garcia’s consent and validates her copyright argument.

even a broad implied license isn’t unlimited. . . . 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.

The obvious concern is that actors will in the future be pressured to claim the same misrepresentation in demanding the removal of controversial films.

While I have tremendous respect for Kozinski, I share the concern with the dissenting judge that he is creating new law and overriding a trial judge who is ordinarily given great deference as the fact finder in such cases.

The district court did not abuse its discretion in concluding that the law and facts did not clearly favor Garcia. Instead, the majority makes new law in this circuit in order to reach the result it seeks. We have never held that an actress’s performance could be copyrightable. Indeed, “[t]here is little case law or statutory authority as to the position of performers as authors of an audiovisual work under U.S. law.” F. Jay Dougherty, Not a Spike Lee Joint? Issues in the Authorship of Motion Pictures under U.S. Copyright Law, 49 UCLA L. Rev. 225, 300 (2001).

I think both opinions are quite strong and worth a reading if you have time.

We have previously discussed how free speech values are being scuttled through hate speech and anti-discrimination laws. This would create a new possible weapon to use against controversial films. Google has been showing a commendable commitment to free speech in a variety of cases and controversies. It is promising to continue this fight which would involve either an en banc appeal (which would be advisable) and/or a petition to the Supreme Court.

Source: US News

47 thoughts on “Ninth Circuit Rules Google Must Remove “Innocence of Muslims””

  1. annieofwi – Those who hate this administration do not care for facts or personal experience related to the facts given.

    Would those who think she doesn’t have a valid claim feel the same if instead of this anti-muslim film they had photoshopped her to be nude and put filthy words in her mouth so it became a porn movie? At what point is the contract void because the person who entered into it was lied to about what they intended to do with her performance? I am not a lawyer but wouldn’t this (above example), and what they did to her performance, making it completely different and anathema to many people who might otherwise have taken the role be fraud?

  2. If this case revolves around whether a movie maker got a properly executed release from the actor(s), then it is only a slightly interesting controversy.
    My first impression is that a release is strongly implied when an actor agrees to be paid for any performance, or fraction thereof.

    If it is a case involving whether an actor generally can demand a movie to be pulled from exhibition because they don’t like the content of the film, then it is a more interesting case, and on that alone the actor’s suit should be dismissed; it is not up to an actor to dictate a movie maker’s artistic product, no mater what the result is.

    If it is a case of court sanctioned extortion to remove a controversial expression of free speech, then it is a very interesting and public policy impacting development, and should be ruled, easily, against the prohibition of the speech.

    In all these possibilities, it would seem the movie makers could resolve the first two problems, by simply editing out the non-released actor’s performance, in this case that performance seems to have been minimal.

  3. Fresh: 37 people died of marijuana overdose the first day Colorado legalized marijuana:

    Annapolis Police Chief Michael A. Pristoop came prepared when he testified before a Maryland state Senate panel on Tuesday about the perils of legalizing marijuana.

    In researching his testimony against two bills before the Judicial Proceedings Committee, Pristoop said, he had found an article to illustrate the risks of legalization: 37 people in Colorado had overdosed on the very day that state legalized pot, he said.

    “When he said it, everyone in the room dropped their laptops,” Sen. Jamie B. Raskin (D-Montgomery) said in an e-mail.

    Trouble is, the facts were about as close to the truth as oregano is to pot. After googling on his laptop, Raskin advised the chief that the Colorado overdose story, despite its deadpan delivery, had been made up for laughs by The Daily Currant, an online comedy magazine.

    (That’s Fresh). What goes around comes around in some of the most certain circles.

  4. nick spinelli

    Throw out a line w/ fresh bait and you never know what you’ll catch.
    Gives new meaning to “fresh” … and bait …

    You want fresh?

  5. Wow. They must have been short on workload at the 9th Circuit. They never read appeals. Maybe I should make an offensive video next time I file an appeal.

  6. Spinelli, there is a huge difference between claiming the Moon landing as a hoax and the real inside job of 9/11. You’re still a looney.

  7. nick spinelli

    We also have truthers here who believe the US government planned 9/11 and that the Apollo 11 moon landing was a hoax. The more merrier, I guess??
    And some mainstream media sources think Saudi Arabia did it.

    Those videos have not been removed.

  8. nick spinelli

    I know a person, just one, who still believes this film is what led to the attack in Libya.
    Good point.

    Imagine devout Muslims inside their tents searching Youtube for offending video.

    Thousands upon thousands of videos via dial up or other desert internet connections, fully intent every step of the way.

    Much more likely to have been a plant to cover a propaganda operation of some sort.

    Those professional ball-bursters would love to have the ability to drop a video on youtube and cause the sort of upheaval that generates shrill hearings, news conferences, and other things crazoids do to stimulate their imaginations and mainstream news fantasies.

  9. Samantha,

    “The following excerpt is not directly related here . . .”

    Or at all.

  10. We also have truthers here who believe the US government planned 9/11 and that the Apollo 11 moon landing was a hoax. The more merrier, I guess??

  11. Samantha, PC people have turned college campuses into the antithesis of free speech. PC MUST be defeated!!

  12. Speaking of finding actors who would be willing to speak the words, I haven’t heard anything about the voice-over actress who did the Arabic dubbing standing up and saying “You should all leave Ms. Garcia alone, because it was I that actually said it.” There’s a lot of free speech courage going on here.

    I am reminded of my father’s story about more innocent days (circa 1930) when schoolyard fights were not what they are today. There was one particular classmate who used be fond of saying, “Let’s you and him fight.”

  13. CS — Sometimes that is a good idea, and sometimes not. Drones over Egypt might not be a wise foreign policy move; a more personal approach might or might not be successful. If only Peter Graves and Martin Landau were available.

  14. @ Charlton “Every photographer and filmmaker gets a release from actors and models. An actor’s claim of being “tricked” is pretty thin.”

    The court’s opinion expressly notes that the producer/film maker did not get a release in this case and that if he had then it would have been a different result.

    I consider myself a big Free Speech supporter and I don’t have any problems with this decision. There’s no doubt that a singer has the copyright to his singing performance even though he didn’t write the song. The only thing slightly groundbreaking in this decision is the ruling that, similarly, an actress has the copyright to her acting performance even though she didn’t write the script.

    Kozinski, the judge, is generally considered a strong free speech supporter. Professor Volokh, who’s also a strong free speech advocate, thinks it was the correct decision.

  15. Other than the fact that someone was duped into appearing on screen and is subject to credible ongoing death threats as a result . . .

  16. Porkchop,
    There are some folks out there who specialize in making extradition a moot point.

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