On March 12, 2014, the Ninth Circuit Court of Appeals handed down a decision that has many in the copyright law community scratching their heads. The Court has ordered Google, Inc.’s YouTube to take down a video based on an actor’s claim to a copyright in that video. The actor, it should be noted, appears for approximately five seconds in the thirteen-minute film. The actor, Cindy Lee Garcia, believed she would be appearing in a short-film about the life of a typical Egyptian 2,000 years ago, entitled “Desert Warrior,” and for which she was paid $500. When she saw the video uploaded to YouTube, under the title of “Innocence of Muslims,” it was an anti-Islamic video that garnered much debate and controversy, and also resulted in an Egyptian cleric issuing an edict calling for all those involved in the film to be killed. Ms. Garcia then repeatedly asked Google and YouTube to take the video down, but to no avail.

She then filed suit in federal district court, claiming that she owned a copyright interest in the video and as such, her demand to YouTube to take down the video should be honored. Google countered that actors typically do not own a copyright interest in films, particularly when their appearance is as minors as Ms. Garcia’s. The district court denied Ms. Garcia’s request and the ruling was appealed to the Ninth Circuit.

Last week, the Ninth Circuit handed down a decision in which it ruled that Ms. Garcia did, indeed, own a copyright interest in the film and ordered Google to take down the video and take reasonable steps to prevent further uploads.

The problems with the decision? There appear to be plenty. First, the First Amendment concerns are barely considered by the Ninth Circuit, which stated only that “the First Amendment does not protect copyright infringement.” The typical balancing test applied to injunctions was apparently disregarded in this case. Secondly, it has long been accepted that, while directors, writers, and producers may claim a copyright interest in films, individual actors do not. As the Ninth Circuit covers Hollywood, there is speculation that this ruling may lead to a flood of litigation by actors who claim an interest in films, no matter how minimal or significant their role may have been.

In the end, the decision ordering Google to take down the film appears to allow for censorship of a controversial video based on a tenuous copyright claim, taking little notice of the First Amendment concerns.

Sources: https://www.eff.org/deeplinks/2014/02/bad-facts-really-bad-law-court-orders-google-censor-controversial-video-based http://blogs.wsj.com/law/2014/02/28/will-innocence-of-muslims-ruling-spawn-flood-of-actor-lawsuits/

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