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A controversial YouTube video could create a crazy new form of copyright

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How the fight over 'Innocence of Muslims' could upend the entertainment industry

Last week, inside a federal courthouse in Pasadena, California, Google tried to stop a ruling that could upend the entertainment industry. The case of Garcia v. Google Inc. was considered in an appeals court, in front of a panel of 11 judges. At issue: Innocence of Muslimsthe controversial video uploaded to YouTube in 2012. The plaintiff, an actress in the film, argues that she holds a copyright to her performance, and has demanded that Google take the movie down. But Google says that if her lawsuit is taken seriously, then frivolous copyright claims will be used to constrain free speech and debilitate the internet companies that host it. With the court’s decision expected some time next year, both sides are girding for a ruling that could have significant consequences.

Cindy Lee Garcia’s role in the 2012 film Desert Warrior was supposed to be minor. After answering a casting call the previous summer, Garcia was paid $500 for what turned out to be five seconds of screen time. But it was hardly a bargain: She was cast for a movie that never materialized.

A video that spurred violent protests in almost 20 countries

Instead of acting in a "historical Arabian desert adventure film," as she had been promised, Garcia and the Desert Warrior cast had their dialogue redubbed by a producer. The result was a 14-minute, Islamophobic film trailer that came to be known as Innocence of Muslims, which portrayed the Prophet Muhammad as a belligerent, pedophilic dupe. (Garcia was originally cast to play a role as a mother; in the finished film, however, she appears to insinuate that Prophet Muhammad is a child molester.) In September 2012, the video was translated into Arabic and shared on YouTube. The clip’s antagonistic message spurred violent protests in almost 20 countries, including Egypt, Libya, and Tunisia. The uproar over Innocence of Muslims was even initially linked to the killing of US Ambassador J. Christopher Stevens, and has served as a crucial talking point for the Republican Party’s irrational fixation on an Obama-led Benghazi conspiracy. An Egyptian cleric issued a fatwa against every person involved with the film. Fearing for her life, Garcia sought protection in, of all things, copyright law.

Garcia sued the film’s producer, Nakoula Basseley Nakoula, as well as YouTube and its parent company, Google, in an attempt to have Innocence of Muslims taken down. While service providers like YouTube aren’t held responsible for the kind of deception that Nakoula engaged in, they are on the hook for misappropriating intellectual property. This helps explain Garcia’s curious legal strategy.

A novel interpretation of copyright law

To compel YouTube to get rid of the video, and to protect her from the death threats, Garcia had to fashion her possible allegations of libel and fraud into a copyright claim. She argued that her performance amounted to an independent work of authorship, a copyright upon which Google was infringing. The court denied her request. But the Ninth Circuit Court of Appeals sided with Garcia, in a 2–1 decision, and ordered Google to take the video down. Concerned with the court’s interpretation of copyright law and the demands it might impose on internet companies, Google asked the Ninth Circuit — whose jurisdiction includes both Hollywood and Silicon Valley — to rehear the case with a full panel of judges.

In oral arguments on Monday, Google’s counsel stressed the ramifications of upholding this expansive understanding of copyright. Under the DMCA, copyright holders can urge internet companies to remove illegal content by submitting takedown requests. If, as Garcia argues, one’s performance merits its own copyright claim, a slew of newly legitimate takedown requests might inundate the web’s media platforms. Not only would this jeopardize the viability of smaller film studios and content hosts, it would also restrict free speech. It could invite other claims of copyright that exist solely to suppress information, rather than to protect creative work.

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Several judges seemed skeptical of Garcia’s copyright claim. "Take the battle scenes, for example, in The Lord of the Rings. In your view does every single person who made a cameo in the battle scenes have a copyright interest in their performance as fixed in the film?" Judge M. Margaret McKeown asked the plaintiff.

On the other side, Google’s lawyer was needled incessantly by judge Alex Kozinski, who ruled against Google in the previous appeal. Kozinski challenged Google to show why actors like Garcia shouldn’t hold a copyright in their performances.

I spoke to Corynne McSherry, Intellectual Property Director at the Electronic Frontier Foundation, who filed a brief joined by the ACLU and others in support of Google. McSherry told me that Garcia’s copyright claim is ultimately unpersuasive. "A five-second performance responding to the direction of somebody else in a much larger video does not give you a copyright interest in that work," McSherry explained. "Copyright law is vague enough, but not that vague."

"Copy right law is vague, but not that vague."

McSherry said this issue goes back to the Constitution, which grants Congress power to secure exclusive rights to artists and inventors. Copyright claims have always involved someone doing something creative tied to a tangible work, rather than a minor recital of a line, or something more inchoate. "There can be circumstances where an actor might exercise sufficient creative control and that person might have a copyright interest," McSherry said. "So it’s not to say that an actor can never have a copyright interest in the work, but this isn’t one of them."

Michael Page, a partner at the law firm Durie Tangri and counsel for Netflix, told me that even if Garcia did enough creative work to be considered a joint author, she would still share authorship with Nakoula, who would be free to post her performance on YouTube. Using Garcia’s theory, Page said, any actor, no matter the insignificance of their role, might be granted unprecedented power over producers, studios, and distributors in a way we’d consider unfair. "You have a heckler’s veto from anybody in the world who can basically censor the internet by sending a DMCA notice," Page said.

Garcia might have had an easier way to get the video taken down: Public Citizen filed a brief arguing that she could have sued the producer in state court, arguing fraud and unfair businesses practices. With a court order against Nakoula, she’d be able to petition Google to honor the removal of the wrongful content. Public Citizen believes Google would have complied. (Google temporarily blocked the video in Egypt and Libya out of concerns for violence, and restricted access in other countries including India and Indonesia, where the video violated local laws.)

Where Garcia’s opponents see censorship and a tedious meddling with their business model, her allies see a recognition of their work and worth. "Each actor adds something new to the character she performs … the actor imbues the character with originality," the Screen Actors Guild and other entertainment groups argued in a brief. And in this originality, however small, lies a copyright claim. The brief goes on to describe the different actorly interpretations of Batman: how Christian Bale’s Bruce Wayne was different from George Clooney’s. (The brief did not mention the nipples on the batsuit.)

Is five seconds on screen enough to deserve a copyright?

While Garcia appears only momentarily in Innocence of Muslims, the entertainment groups point out that her script was over five pages. By industry standards, this amounts to about five minutes of screen time, had her full performance been used. Garcia worked for three and a half days, according to court documents. SAG and others contend that the five seconds of screen time is enough to merit a copyright. "Some of the most memorable film performances are ones that were exceptionally short," states the brief. The legal document invites us to consider Clint Eastwood’s Dirty Harry line: "So you gotta ask yourself this question: ‘Do I feel lucky?’ Well, do ya, punk?’ It asserts that while this scene was part of Eastwood’s larger performance, this particular line was made memorable by the actor. Thus, even fleeting performances — such as Garcia’s — could be separately copyrightable. (I would like to see a short performance where a lawyer from SAG restates this analogy with a straight face.)

Google’s opponents believe the company could easily sort through any increase in copyright notices using its sophisticated, automated systems. But it’s not clear that other video hosting platforms have the same capabilities, or whether independent filmmakers will be able to comply with the new rules.

It’s hard to imagine the dread that emerges from a flurry of death threats. Or the anxiety of seeing your own image, clumsily edited, mouthing out words you have never spoken. But Garcia wants to use the ownership rights of her performance as a shield. She wishes to harness the power granted to authors as a workaround to coerce Google, to alter a record of history she disputes. The Ninth Circuit shouldn’t use the unfortunate facts of her situation to create a new kind of intellectual property, where extras and bit parts carry the creative status of author. The court may soon cite a dubious copyright to silence protected speech. We should hope they don’t.