with actress Cindy Lee Garcia, a federal appellate court has ordered Google to remove the controversial 14-minute trailer for “Innocence of Muslims” from YouTube.
A panel of the
9th Circuit Court of Appeals ruled 2-1 that Garcia was is likely to succeed with her claim that the clip infringed her copyright interest in her performance. “We need not and do not decide
whether every actor has a copyright in his performance within a movie. It suffices for now to hold that, while the matter is fairly debatable, Garcia is likely to prevail,” Circuit Court Judge
Alex Kozinski wrote for the majority.
The 9th Circuit made its opinion public on Wednesday, but in a highly unusual move, actually issued the ruling in secret on Feb. 19. The judges said
they did so in order “to prevent a rush to copy and proliferate the film before Google can comply with the order.”
On Feb. 20, Google sought an emergency stay -- also in secret.
That request was denied on Monday; as with the other rulings, it wasn't made available to the public until Feb. 26.
Garcia first asked YouTube to remove the incendiary clip in September
2012, shortly after it went live on the site. At the time, it was blamed for sparking a wave of protests in the Mideast. Garcia -- who says she was duped into appearing in the film -- alleged in court
papers that she received death threats after the film was posted to YouTube, and that she lost her job due to security concerns sparked by her appearance in the movie. She says she was cast in
"Innocence of Muslims" after answering a Backstage
ad for a film called "Desert Warrior," which she thought was an adventure movie set in ancient Egypt.
After YouTube refused to
take down the clip, Garcia sued the company for copyright infringement, and sought a court order requiring the company to remove the material. Last year, U.S. District Court Judge Michael Fitzgerald
in the Central District of California rejected Garcia's arguments, ruling that she doesn't appear to actually own a copyright interest in the clip. He said that even if Garcia at one time had a
copyright in her performance, she had assigned it to the film's author.
But Kozinski wrote that the film's author lied to Garcia, which likely voided any agreement between the two of
“While answering a casting call for a low-budget amateur film doesn’t often lead to stardom, it also rarely turns an aspiring actress into the subject of a fatwa,”
he wrote. “But that’s exactly what happened to Cindy Lee Garcia when she agreed to act in a film with the working title 'Desert Warrior.' ”
U.S. Circuit Court Judge N.
Randy Smith dissented, ruling that an actor's performance in a film doesn't appear to be copyrightable. “The law and facts do not clearly support Garcia's claim that her acting performance is
protected,” Smith wrote