In its much discussed Cindy Garcia v. Google decision, a Ninth Circuit panel granted plaintiff Cindy Garcia’s request for a preliminary injunction forcing YouTube to take down an anti-Islamic film that included a doctored clip of a Garcia acting performance. The panel ruled that the injunction was warranted because (i) Garcia was likely to succeed on her claim that YouTube’s continued hosting of the film constituted an infringement of her copyright protected performance, (ii) Garcia would face irreparable harm in the absence of the injunction, and (iii) the balance of the equities tipped in favor of granting the injunction.
In so doing, the panel overruled a lower court Judge and sent a clear message that previously (and potentially still) questionable copyright claims are sufficient to require internet service providers (ISPs) to comply with take down requests. Many industry commentators have expressed, um, displeasure with the panel’s ruling. See here, here, here, and here.
So, did the panel get it wrong? Did it let a set of unquestionably sympathetic facts lead it to create bad law? Here at Take283, we think that the naysayers may be overreacting a bit in assessing the potential detrimental impact of the panel’s ruling.
Just the Facts
First, the facts. Garcia, described in the opinion as an “aspiring actress,” agreed to appear in what she was told would be an “Arabian adventure film” with the working title “Desert Warrior.” She only got to see the tiny part of the script that involved her character, filmed her scene in a less than a week, got paid five hundred dollars, and called it a day.
Then the death threats started. You see, Garcia didn’t actually contribute her acting talents to anything remotely resembling an Arabian adventure film. Instead, unbeknownst to Garcia, her scene was part of a rabidly anti-Muslim film entitled “The Innocence of Muslims.” Also unbeknownst to Garcia, she had been dubbed over. Instead of the lines she read from a fraudulent script, her character uttered the following phrase, which Take283 only partially reproduces for fear of fatwa: “Is your [insert the name of the number one Muslim figure whose name you should not degrade] a child molester?”
After being uploaded to YouTube, the film spread quickly through the international Muslim community, and many within that community were very understandably displeased. Unfortunately for Garcia, amongst these displeased individuals was an Egyptian cleric who declared a fatwa against everyone associated with the film, essentially calling for the death of all who participated in its making.
After the death threats began rolling in, Garcia repeatedly sent take down notices to Google (YouTube’s parent company) and YouTube. When the takedown requests proved unsuccessful, Garcia sought a preliminary injunction in a California federal district court requiring YouTube to take down the film. Her core argument was that YouTube’s continued hosting of the film constituted an infringement of her copyright protected acting performance and that she would face irreparable harm in the form of death threats and the risk of death/serious bodily injury if the film were allowed to remain on YouTube.
The district court denied her request, after which Garcia appealed the lower court’s denial with the Ninth Circuit. A panel of three Ninth Circuit judges (with one judge dissenting) overruled the lower court and granted her appeal.
The Panel Speaks
In an opinion that began with a characteristically clever quip from Judge Kozinski (“While answering a casting call for a low-budget amateur film doesn’t often lead to stardom, it also rarely turns an aspiring actress into the subject of a fatwa”), the panel held that Garcia was likely to succeed on her claim that the film infringed her copyrights because:
- Garcia’s performance was deserving of copyright protection;
- She did not transfer her copyright interests to the film-maker; and
- The filmmaker (and by extension, Google) could not rely on an implied license to use Garcia’s performance in the film as the actual film was grossly divergent from the film to which Garcia believed she was contributing her performance.
The panel also found that Garcia faced a strong likelihood of irreparable harm in the absence of the preliminary injunction, reasoning that YouTube’s continued hosting of the video would serve to keep the flames of fatwa smoldering and thereby increase Garcia’s risk of continued death threats, serious bodily injury, and the ultimate irreparable harm — death.
In addition, relying on the potential severity of the harm faced by Garcia in the absence of the an injunction, the panel also held that the balance of the equities between the parties tipped in Garcia’s favor and that granting the injunction would serve the public interest.
The Legal Community Reacts
To say that some in the legal community disagreed with the panel’s decision would be like saying Lebron James is kind of okay at basketball. “Bewildered outrage,” the phrase used in this BNA article on the decision, more accurately describes their response. Or better yet, this jem, unleashed on Twitter by Maryland professor James Grimmelman:
“The only thing worse than the Innocence of Muslims copyright decision is Innocence of Muslims itself. It’s just astonishingly bad.”
The main argument from the decision’s detractors is that Garcia did not have a copyrightable interest in her acting performance. In their minds, Garcia performed a portion of a copyrightable work, she did not author a copyrightable work. As a result, many of these critics fear that the ruling erroneously expanded the universe of what constitutes a “copyrightable work” to preposterous proportions.
In addition to those who feel the ruling rests on an inaccurate application of copyright law, a number of commentators also feel that the panel did not give sufficient consideration to the first amendment issues attendant to its compelling YouTube to take down a video on potentially questionable legal grounds, callously undermining important free speech principles in the process.
Some also argue that the ruling puts ISPs that host user generated content in a precarious position, forcing them to spend resources investigating a much wider universe of copyright infringement claims and to err on the side of inhibiting user’s freedom of expression by acquiescing to more take down requests, or face expensive and protracted litigation if they don’t.
Here at Take283, we are inclined to agree that the decision pushes the boundaries of what constitutes a copyrightable work beyond its generally accepted limits — it’s hard to imagine a world where every extra or line actor in a major movie has a copyrightable interest in her 3 to 5 seconds on screen. And yes, we do not want to live in a world where YouTube feels it must get consents or waivers from everyone that appears in any video uploaded to its site in order to make sure all of its legal “i’s” and “t’s” are dotted and crossed.
But we disagree with all of the hub-hub and don’t think that the case will have that much of a practical impact on filmmakers or lead to a spate of successful challenges to Google’s denials of YouTube take down requests.
First, there is a reason why there have not been many cases concerning whether actors deserve copyright protection for their performance in films authored and directed by someone else: this is almost always handled by contract. In the normal course of business, in exchange for remuneration and the opportunity to showcase their talents in a film, actors will sign agreements transferring or disclaiming any and all copyrights they may have stemming from their participation in the film. There was no viable agreement in this case*, which is, again, highly unusual. If film makers want to ensure that actors in their films don’t have viable copyright claims over their acting performances, they should just keep on doing what they are doing and make sure actors sign industry standard agreements.
Further, in the highly unusual instance where filmmakers have not secured such agreements from their actors, they will likely, as the panel noted, be able to rely on the theory of implied license. The theory of implied license logically provides that if you agree to act in someone’s movie, you expect them to use your performance in a final film that will be made publicly available — and therefore the filmmaker has an implied license to broadcast your work to the public. Of course, if a filmmaker uses an actor’s performance in an entirely different manner than which the actor reasonably expected, it makes sense that the filmmaker is prohibited from taking advantage of the implied license theory.
So, again, filmmakers — if you don’t commit fraud in the process of convincing actors to perform for your film, you have another avenue of protection from their claims of copyright protection even outside of industry standard contracts.
Take283 is most sympathetic to the impact the ruling might have on ISPs that host user created content. By widening the pool of individuals who might have colorable claims of copyright protection in connection with a particular film, the ruling straps these ISPs with increased burdens vis a vis investigating copyright infringement claims. But perhaps these burdens aren’t as large as they might first appear.
First of all, as explained above, actors whose appearance in a film were not procured under the — it can’t be overstated — incredibly unusual and fraudulent circumstances present in the Garcia case will almost always have no copyright interest in the films uploaded to the ISPs’ websites. Also, the odds that a take down request denial will make it to the Ninth Circuit are pretty slim where numerous and credible death threats are not involved — which will be the case 99.99% of the time. Take283 is just not sure that it will take that much extra effort on ISPs parts to confirm with reasonable certainty that the vast majority of infringement related take down requests aren’t nearly as viable as Garcia’s. I admit, however, that it may. On this score, the ISPs probably know best.
In the end, the panel probably did bend the law a bit to get to a desired result. But they didn’t break it (copyright protection is notoriously easy to obtain, that’s why producers of artistic works usually make sure that their subordinate collaborators contract it away), and, because of how films are made, it is highly unlikely that the ruling will have much of an impact the interactions between actors and filmmakers. And while it will likely increase ISPs’ investigatory burdens, most takedown requests will not come with a set of facts remotely comparable to the one present in Garcia. As a result, I think its fair to presume that they will likely be dispatched with only nominal additional effort over and above the effort ISPs exerted to respond to takedown notices in the pre-Garcia world (though, again, I’m not sure this is the case).
Finally, let’s remember that a human being’s life is being genuinely threatened here. If there is ever a moment for a little bit of judicial activism, I’m pretty sure it’s when a ruling would have little meaningful impact on others parties while also making it less likely that a party will spend the rest of her life receiving death threats (or worse) for a fraudulently obtained performance.
*The opinion does note in a footnote that a signed agreement was offered to the trial court, but Garcia rebutted the veracity of the document with expert testimony that her purported signature was a forgery. Neither the trial court nor the panel seemed to lend any credence to the document. Given the sketchy manner in which the film was made, this was probably for the best.