Attorneys for Google and actress Cindy Lee Garcia faced off this week at the 9th Circuit Court of Appeals, where they argued about whether Garcia is entitled to an injunction forcing Google to remove the clip “Innocence of Muslims” from YouTube.
The hour-long hearing in Pasadena, Calif. marked the latest twist in a legal dispute dating to late 2012, when Garcia sued Google for copyright infringement. She alleged that she was duped into appearing in "Innocence of Muslims" after answering a Backstage ad for the film "Desert Warrior," which she thought was an adventure movie set in ancient Egypt.
When the clip appeared on YouTube in September 2012, it was blamed for sparking a wave of protests in the Mideast. Garcia alleged in court papers that she received death threats after the film was posted to YouTube and lost her job, due to security concerns sparked by her appearance in the movie.
She argued that she owned a copyright interest in her 5-second performance, and sued Google for infringing her copyright by displaying the clip without her permission. Garcia sought an injunction requiring Google to remove the clip.
U.S. District Court Judge Michael Fitzgerald in the Central District of California rejected Garcia's arguments. Garcia appealed and a panel of the 9th Circuit ruled 2-1 in her favor this year.
“We need not and do not decide whether every actor has a copyright in his performance within a movie,” Circuit Court Judge Alex Kozinski wrote for the majority. “While the matter is fairly debatable, Garcia is likely to prevail based on the record and arguments before us.”
N. Randy Smith dissented from that opinion.
The 9th Circuit subsequently agreed to reconsider the case. The 11 judges who heard arguments this week, including Kozinski and Smith, obviously had different views over whether Garcia potentially could own a copyright in her brief performance in the film.
Kozinski pointed out that the Beijing Treaty on Audiovisual Performances contemplates that performers can own copyrights in a performance. Google's lawyer, Neal Kumar Katyal, argued that the treaty isn't in effect. But Kozinski kept pressing the point -- possibly because he believes the treaty's language confirms his view that Garcia potentially owns a copyright interest.
On the other hand, Judge M. Margaret McKeown wondered aloud whether every movie extra, including “the busboy who serves drinks,” could have a copyright interest in the final product.
Garcia's lawyer, Cris Armenta, said that most extras will have contracts that govern the situation. In Garcia's situation, Armenta argued, any agreement between Garcia and the filmmaker is invalid because he allegedly tricked her.
“The only folks this is only going to affect,” Armenta said, “are those filmmakers who decide with bad intent in their heart from the beginning, to go out and defraud people.”
But Google's attorney said Garcia doesn't have the law on her side. “There is no precedent, zero, for the idea ... that a five second performance is itself a separate copyrightable work,” Katyal said.
A host of outside groups and companies -- including Netflix, Facebook, Wordpress, newspapers and others -- are backing Google in the dispute. “By creating a new species of copyright, and empowering essentially any performer in a motion picture or television program to both sue downstream distributors and enjoin any use of her performance of which she does not approve, the panel majority risks wreaking havoc with established copyright and business rules on which all third-party distributors, including Netflix, depend,” the video distributor argued in papers filed with the 9th Circuit.