Metropolitan News-Enterprise


Friday, March 7, 2014


Page 1


Ninth Circuit May Stay YouTube Takedown Ruling


By a MetNews Staff Writer


The full Ninth U.S. Circuit Court of Appeals will consider whether to stay a panel’s ruling that requires YouTube to take down clips from the controversial film “Innocence of Muslims,” according to an order filed yesterday.

Judge Sidney Thomas, the court’s en banc coordinator, said an active judge of the court—who was unidentified—had requested en banc review of the panel’s denial of a stay. Attorneys were given until Wednesday to file briefs on the matter.

In its Feb. 26 ruling, the panel ruled 2-1 that an actress who received $500 for a little over three days of work on a film with the working title “Desert Warrior” was entitled to a preliminary injunction against YouTube and its parent company, Google Inc. The panel subsequently denied a request for a stay of the ruling, which the defendants said they will seek review of.

The actress, the panel said, appeared to have a copyright interest in the film. Performers normally give up any such rights in a “work for hire,” Chief Judge Alex Kozinski explained, but not when they’ve been misled as to the title and content of the work. Kozinski said Cindy Lee Garcia had no knowledge the filmmaker planned to turn the project into a negative portrayal of the Prophet Muhammad.

Garcia said she was never told the film dealt with religion or radical Islam. When the clip was released, her lines were dubbed to have her character asking Muhammad if he was a child molester.

“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,” Kozinski wrote for the court. Garcia is likely to prevail on her infringement claim and should thus receive the injunction denied her by a federal district judge in Washington state, Kozinski said.

Kozinski emphasized that the ruling was not a blanket order giving copyright protection to every actor, but that in this case, Garcia’s performance was worthy of such protection.

“We need not and do not decide whether every actor has a copyright in his performance within a movie,” the judge wrote. “It suffices for now to hold that, while the matter is fairly debatable, Garcia is likely to prevail.”

The plaintiff, he said, “was duped into providing an artistic performance that was used in a way she never could have foreseen.”

Judge Ronald Gould concurred, but Judge N. Randy Smith dissented, arguing that Garcia’s five-second appearance gave her no ownership claims.

“Her brief appearance in the film, even if a valuable contribution to the film, does not make her an author,” Smith wrote. “Indeed, it is difficult to understand how she can be considered an ‘inventive or master mind’ of her performance under these facts.”

The case is Garcia v. Google, Inc., 12-57302.


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