Ninth Circuit To Hollywood: Swiss Cheese Copyrights Now Toast

Actress Cindy Lee Garcia was duped. She agreed to perform as an actress in an action-adventure thriller set in ancient Arabia titled, "Desert Warrior." The script called for a concerned female to deliver the following lines: "Is George crazy? Our daughter is but a child?" Garcia performed her role and, in July 2012, the producer of the film uploaded a shortened version of the movie to YouTube.

To Cindy's horror, her scene had been redubbed and the film retitled. The new title of the film was "Innocence of Muslims" and Cindy's lines in the film were dubbed over with the line, "Is your Mohammed a child molester?" Her image, on screen for a total of five seconds, remained in the film.

While on YouTube, the film created controversy in the Middle East. Specifically, the film is purported to have been the impetus for the September 11, 2012, attack on the United States Consulate in Benghazi, Libya. Following the attack, an Egyptian cleric issued a fatwa against all those associated with the film. As a result, Garcia received multiple death threats.

In response to these death threats, Garcia sought injunctive relief against Google in order to bar YouTube and other Google-run sites from hosting "Innocence of Muslims." Given well-established First Amendment jurisprudence, Garcia knew she would be unable to rely upon defamation, privacy or related torts as a basis to seek an injunction against further distribution of the film. It was only copyright law that could potentially provide the injunctive remedy she wanted. Thus, Garcia claimed that she had a separate copyright interest in her five-second performance in the film, and then she sued YouTube for infringing upon her copyright in her "audio-visual dramatic performance."

A district court denied Garcia's request for a preliminary injunction on the grounds that she had failed to establish a likelihood of success on the merits. A divided Ninth Circuit panel reversed, and issued a secret takedown order, giving Google twenty-four hours to remove all versions of "Innocence of Muslims" that included Garcia's performance. Although the majority characterized Garcia's copyright claims as "fairly debatable," the court concluded that Garcia was likely to prevail on her copyright claim. Moreover, the court also held that Garcia had not granted the film's producer an implied license to incorporate her performance into the film. Google sought rehearing, with a flood of amici briefs from filmmakers, news...