Cindy Lee Garcia said she’d been had. The actress claimed that she thought she was acting in an action-adventure thriller called Desert Warrior, but her performance was co-opted into five seconds of Innocence of Muslims, a 14-minute trailer mocking the Islamic prophet Mohammed that sparked an anti-American backlash in the Middle East and led to death threats for the actors involved. The inflammatory clip was first uploaded to Google-owned YouTube in June 2012, and a few months later Garcia sued Google demanding that what she called the “hateful anti-Islamic production” be taken down.
Garcia first filed a suit in Los Angeles Superior Court, but a judge refused to have it removed, even as she claimed she was receiving death threats. She then filed a suit in federal court, yielding the same response. After all, video creators own the rights to their creations, not actors. Last year, however, a three-judge panel on the Ninth Circuit Court of Appeals shocked First Amendment and copyright attorneys around the country when it found in Garcia’s favor, determining that her performance was “independently copyrightable.” Google removed the video.
Yesterday, video creators and distributors, including some of the world’s biggest Internet companies, were relieved when a larger panel of Ninth Circuit judges reversed the court’s earlier decision. At stake in the suit was a crucial question: Who can claim control of a video? If an actress could determine the fate of a video online, then couldn’t anyone involved in a video production try to get a clip they’re unhappy with taken down? The court in its latest ruling was unwilling to allow for such a future—a stark reminder that, at a time when video is more easily shot and shared than ever before, your image can easily slip beyond your control.
Controlling the Message
For Garcia, that realization came too late. In her suit, she claimed she owned the rights to her performance. Just as HBO could demand an illegally uploaded clip of Game of Thrones should be removed from YouTube, Garcia said her demand should be honored, too, because her performance was used in a different way than in which she had agreed. But Circuit Judge M. Margaret McKeown wrote in the decision issued yesterday that upholding Garcia’s claim would “enable any contributor from a costume designer down to an extra or best boy to claim copyright in random bits and pieces of a unitary motion picture.”
If the earlier decision had not been reversed, detractors of Garcia’s claim said, it would mean video creators would need to prove that anyone involved in their production had waived their rights to be a part of it—otherwise those participants would be able to request their performance be removed at a later point in time.
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