Google and YouTube must scrub all copies of "Innocence of Muslims," a low-budget anti-Islam film that drew international protest in 2012, at the behest of an actress who says she received death threats after being duped into a role. The Ninth Circuit Court of Appeals has granted a temporary takedown order on behalf of Cindy Lee Garcia, who filed a copyright claim against Google in an attempt to purge the video from the web. While actors usually give up the right to assert copyright protection when they agree to appear in a film, Garcia says that not only was she never an employee in any meaningful sense, the finished film bore virtually no relation to the one she agreed to appear in. In a majority opinion, Judge Alex Kozinski said she was likely in the right.
It's well established that most people involved in "Innocence of Muslims" had no idea they were appearing in a diatribe against Islam. Garcia was paid $500 for a bit part in sword and sandals movie "Desert Warrior," but she later found her footage had been edited for the new film and overdubbed with one of the most controversial lines: "Is your Mohammed a child molester?" An Egyptian cleric issued a fatwa against her and everyone else involved with the film, and Garcia says she soon began receiving death threats. The video, meanwhile, had been blocked in parts of the Middle East by both Google and governments, and the director was arrested for violating probation after a 2010 conviction for bank fraud. After trying and failing to get Google to remove the film altogether, Garcia filed suit, claiming it was violating the copyright of her performance.
Not only is this not the film Garcia signed up for, it 'isn't intended to entertain at all.'
It's possible for an actor to "own" their performance, but in most productions, they either sign an explicit release or give implied consent by taking the job. In this case, though, a combination of the director's shady dealings and the extreme repurposing of her footage voided that consent. An actor can't simply reject a film because of an unsatisfactory final edit, but "even a broad implied license isn't unlimited," said Kozinski. "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."
This is a preliminary decision, not a final verdict, but it overturns a lower court ruling that she'd likely consented to appear in the movie and wouldn't suffer major harm if Google left "Innocence of Muslims" up on YouTube. Garcia waited months after the film was uploaded to file her lawsuit, something that could weaken the case, and her part in the film was minimal. But she did file as soon as she started receiving death threats, which changed the situation significantly, and YouTube is a "prominent online platform" that continues to connect her to the controversy. "Death is an 'irremediable and unfathomable' harm," says Kozinski. "To the extent the irreparable harm inquiry is at all a close question, we think it best to err on the side of life." Judge N.R. Smith filed a dissenting opinion, saying that Garcia's role in the film was too negligible to give her any copyright claim, and that it's unclear leaving it up during the case will cause any further harm.
For now, Google must remove all copies of the film within 24 hours and take reasonable measures to prevent it from being re-uploaded. The case, meanwhile, has been passed back to a lower court, with instructions to issue a similar temporary ban.