Google Wins Court Bid to Avoid ‘Swiss Cheese’ Copyright LawEdvard Pettersson and Andrew Harris
Google Inc., joined by broadcasters and free speech advocates, beat back an actress’ bid to block her appearance in a controversial online video and avoided a ruling it warned would make “Swiss cheese” of copyright law.
Cindy Lee Garcia was “bamboozled” into appearing in an anti-Muslim film which stoked violent protests when it was made public in 2012, a federal appeals court ruled. Nevertheless, the court declined to block the video while her lawsuit proceeds.
Garcia said she should be granted an injunction because of her independent copyright interest in her performance in “Innocence of Muslims.” Google warned that such a ruling would upend the entertainment industry. The court agreed.
“Garcia’s theory can be likened to ‘copyright cherry-picking,’ which 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,” U.S. Circuit Judge M. Margaret McKeown wrote for the majority.
The decision by the San Francisco-based court reversed an earlier decision in Garcia’s favor. That ruling triggered an outcry by Internet companies including Netflix Inc. and Twitter Inc., who joined in Google’s case.
They complained such a ruling would be unworkable for online service providers, and would give minor players the power to shut down distribution of a movie.
Garcia had sued Google after the Mountain View, California-based company refused to take down the 14-minute YouTube clip showing a fictional attack by Muslims on a Christian family. The video sparked riots in the Middle East and caused an Egyptian cleric to call for everyone involved in the movie to be killed.
Garcia said that she’d been hired to participate in a movie called “Desert Warrior” and that in the subsequent YouTube clip her part had been dubbed.
“The decision today in Google v. Garcia is a resounding victory for Google that will also be viewed very favorably by film and television studios, as well as many copyright practitioners,” Bruce Ewing, a lawyer with Dorsey & Whitney LLP who specializes in intellectual property, said in a prepared statement.
“While recognizing the offensive nature of the film and the damage” suffered by Garcia, “the court held clearly that she has no remedy under U.S. copyright law,” he wrote.
Cris Armenta, an attorney for Garcia, said she probably won’t appeal to the U.S. Supreme Court, given her limited financial resources and a desire to put the matter to rest.
“The decision short changes the threats on the life of Cindy Lee Garcia who did not voluntarily participate in the hateful message that the controversial trailer about the Prophet Mohammed espoused around the world,” Armenta said in a prepared statement. “The court’s decision today allows one person to subjugate another person for nefarious and hateful purposes using the First Amendment as both a sword and a shield.”
YouTube said it’s pleased with the ruling.
“We have long believed that the previous ruling was a misapplication of copyright law,” YouTube said in an e-mailed statement.
The case is Garcia v. Google Inc., 12-57302, U.S. Court of Appeals, Ninth Circuit (San Francisco).
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