Google Says Death Threats Don’t Trump Copyright, YouTube

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An actress who says she got death threats over a performance used in an anti-Islam YouTube clip has made enemies of Google Inc. and Hollywood, which say her bid to erase it from the Internet is making “Swiss cheese” of U.S. copyright law.

The owner of the world’s largest search engine, the California Broadcasters Association and the American Civil Liberties Union all foresee dire consequences if a U.S. appeals court doesn’t overturn a first-of-its-kind ruling giving actress Cindy Lee Garcia a copyright interest in her performance.

“She is under threat of death if she’s not successful in removing this movie,” Garcia’s lawyer, Cris Armenta, told a panel of judges at a hearing today in Pasadena, California.

Several of the judges expressed skepticism over whether Garcia faces “irreparable harm” from the video, “Innocence of Muslims,” since it has been available on the Internet for years. They also questioned whether Garcia, who alleges the maker of the YouTube clip lied to her about how he would use her performance, should be pursuing a remedy under a fraud or publicity rights claim instead of copyright law.

Fictional Attack

Garcia claimed she was tricked after being told she would be in a film called “Desert Warrior,” and that her performance was dubbed over in the resulting YouTube clip.

The 14-minute video, which shows a fictional attack by Muslims on a Christian family, sparked riots in Muslim countries, and an Egyptian cleric issued a fatwa calling for everyone involved in the film to be killed. Garcia’s character appeared to be asking whether the Prophet Muhammad is a child molester. Protests over the video were initially linked by U.S. officials to the attack on the U.S. consulate in Benghazi, Libya, that killed four Americans, including the ambassador.

The San Francisco-based U.S. Court of Appeals agreed last month to reconsider the February ruling before an 11-judge panel. So-called en banc review is typically reserved for cases the appellate court finds particularly significant.

The decision recognizing Garcia’s copyright interest in the film trailer has “a real negative impact on two of the biggest industries in California, Hollywood and the Internet,” Alex Lawrence, an intellectual property lawyer with Morrison & Foerster LLP in New York, said in an interview. “That’s why you’re seeing this outcry.”

‘Rare Case’

In the court’s 2-to-1 February ruling, U.S. Circuit Judge Alex Kozinski said the dispute was over an “extraordinarily rare case” in which a filmmaker had exceeded the bounds of the performer’s implied license.

U.S. Circuit Judge Margaret McKeown asked Garcia’s lawyer at today’s hearing if any extra who participated in a battle scene in “The Lord of Rings” might also claim to have an independent copyright interest in his or her performance in that scene.

Kozinski challenged Google’s lawyer, Neal Katyal, to explain why Celine Dion, as the lawyer argued, could have a separate copyright interest in the song she performed in “Titanic” and Garcia doesn’t have a right in her performance in what was supposed to be “Desert Warrior.”

“It turns on the intent of the parties,” Katyal told the judge. “Ms. Garcia has never alleged she had intended her performance to be an independent, stand-alone work.”

International Treaty

Kozinski also cited a summary of a 2012 international audiovisual performances treaty that says actors under U.S. law are considered to be “authors” of their performances providing them with copyright rights.

“The language says ‘does,’ not ‘can,’” have a copyright interest, Kozinski said.

The panel didn’t indicate when it will issue a ruling.

Lawrence, who isn’t involved in the case, said the appeals court in February acted out of sympathy with the actress and misapplied copyright law to fill a gap in legal remedies available in the U.S., which doesn’t have an equivalent to the European Union’s right-to-be-forgotten protection for people to have data about themselves removed from the Internet.

The California Broadcasters Association said that if the February ruling stands, it will open the floodgates to demands by minor players in movies for the removal of their performances from the Internet.

“Absent clarification, the decision creates confusion over the scope of copyright protection and threatens to dramatically increase meritless copyright litigation initiated by performers, however minuscule their contributions to the copyrighted work,” the trade group said in a court filing.

‘Political Debate’

Separately, the San Francisco-based Electronic Frontier Foundation and the ACLU said ordering Google to take down the YouTube clip, which sparked riots in the Middle East, ignores the public interest in being able to watch a video at the center of “roiling political debate.”

“Whatever may be said about the merits of ‘Innocence of Muslims,’ it has unquestionably become part of the historical record,” the public interest groups said in their court filing.

Google, based in Mountain View, California, said in its March request for a new hearing that the U.S. Copyright Office had refused to register Garcia’s purported copyright because it was contrary to the agency’s “longstanding practices.”

Under the court’s ruling, “everyone from extras to backup dancers could control how, and whether, films get distributed,” Google said in a court filing. “And platforms like YouTube would be caught in the middle, forced to adjudicate endless take-down requests.”

Garcia sued Google in the 2012 after it refused her request to take down the “Innocence of Muslims” video under the Digital Millennium Copyright Act.

Another actor who said he was tricked into playing a role in the movie sued the filmmaker and Google in September in federal court in Los Angeles.

The case is Garcia v. Google Inc., 12-cv-57302, U.S. Court of Appeals for the Ninth Circuit (San Francisco).