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“Desert Warrior” Vanquished: Google Defeats Cindy Lee Garcia’s Copyright Claims

May 21 2015

By: Intellectual Property Group

Cindy Lee Garcia thought she was playing a bit part in “Desert Warrior,” an adventure film being made by an amateur film maker. The film was never completed. Instead, Ms. Garcia’s performance was re-purposed, and her physical on screen appearance was used in a film titled “Innocence of Muslims,” with her voice redubbed, changing her speaking part so that she appeared to being asking, “Is your Mohammed a child molester?” The film was uploaded to YouTube. An outraged Muslim cleric saw the video and thereafter issued a fatwa directing his followers to kill everyone involved with the film. Ms. Garcia was nonplussed.

Garcia filed suit seeking, among other things, a restraining order directing Google to remove the film from YouTube. Primarily, Garcia claimed that the video infringed a copyright which gave her the exclusive right to control the use of her performance. Granting the injunction, the district court ruled that Garcia was likely to succeed on her copyright claim because it believed she held a valid copyright interest in her performance, and that the film maker had exceeded the terms of a license granted by plaintiff when she was misled into acting in “Innocent Muslim,” under the false pretense that she was playing in “Desert Warrior.” The court also determined that Garcia faced irreparable harm because Garcia had been receiving death threats. Google appealed to the Ninth Circuit. Initially the Ninth Circuit agreed with Garcia, however on May 18th, sitting en banc, the Ninth Circuit reversed.

Writing for the majority, Circuit Judge M. Margaret McKeown stated that, “The appeal teaches a simple lesson — a weak copyright claim cannot justify censorship in the guise of authorship…Nonetheless, the claim against Google is grounded in copyright law, not privacy, emotional distress, or tort law, and Garcia seeks to impose speech restrictions under copyright laws meant to foster rather than repress free expression.” Judge Kozinski drafted a dissenting opinion stating, “Actors usually sign away their rights when contracting to do a movie, but Garcia didn’t and she wasn’t Youssef’s employee. I’d therefore find that Garcia acquired a copyright in her performance the moment it was fixed.” Kozinski then concluded “that Garcia’s copyright claim is likely to succeed. I’d also find that Garcia has made an ample showing of irreparable harm. It’s her life that’s at stake.”

Google, and other similarly situated companies, believed that Garcia’s claims would have established “unprecedented copyright protections for actors with even a bit role in every movie or video produced, at the same time allowing the courts to force companies such as YouTube to take down material protected by the First Amendment while vastly expanding their responsibility for policing web content.” Based on its ruling on Monday, the Ninth Circuit Court of Appeal agrees.