Exploring A Controversial Ruling: 'Innocence of Muslims'

We’ve discussed copyright law a lot in this blog, so today I would like to explore something a bit more complex.

The ongoing litigation surrounding Innocence of Muslims, the anti-Muslim film that caused riots in the Middle East in 2012, delves deep into several elements of copyright law to reach a surprising conclusion.

To be sure, Innocence of Muslims is a hateful, bigoted film that relies on clear misunderstandings of the Islamic faith. However, when placing restraints on speech that we find distasteful as a society, it is essential that we do not jump to conclusions that could be used to hinder speech that deserves protection.

Usually, I like to begin blog posts by giving readers a general understanding of the legal terms used before showing how they are applied in the case that I am discussing. Contrary to that habit, I think it is essential for following the arguments in this case that we start at the beginning.

Filming Desert Warrior

Mark Basseley Youssef, the defendant in this case, cast plaintiff Cindy Garcia in a minor role for a film that he described as an action adventure feature set in the Middle East titled Desert Warrior. She was paid $500 for approximately three and a half days of filming. The film never materialized, and instead, Garcia discovered herself in the anti-Islamic film after it was uploaded to YouTube. Her performance was also partly dubbed over to show her character asking, “Is your Mohammed a child molester?”

Garcia maintains that she did not sign a work release. After the film aired on Egyptian television, prompting protests and significant international news coverage, Garcia began receiving death threats. This prompted her to open litigations against Youssef and Google, which owns YouTube.

Los Angeles County Superior Court Judge Luis Lavin denied her request to take the film off YouTube, but the 9th Circuit Court of Appeals ruled in her favor in February based on an interpretation of copyright law. The ruling issued by Judge Alex Kozinski is fascinating but highly controversial. Given that the same court has voted to rehear the dispute just recently, I think it’s time we went through the ruling step by step.

The 9th Circuit’s ruling

The ruling made by the 9th Circuit Court, which demanded that Google take down the film, expressed an interesting legal theory. Chief Judge Kozinski, joined by Judge Ronald Gould, wrote the following. Judge N.R. Smith dissented.

1. Garcia owns the copyright to her own performance
2. Youssef never acquired the rights to the performance because:
   • Garcia’s performance did not constitute work-for-hire
   • Garcia did not license Youssef to use her performance
3. Google should be ordered to take down the copyrighted performance

(1) By far the most contentious element of this ruling is that Garcia owns the copyright to her own performance. The court ruled that her performance is an independent work of authorship on her part, despite not writing the script. This point is highly debatable and many are unhappy with the decision.

The dissent wrote that, “Under this line of cases, an actress’s performance in a film is more like the personal act of singing a song. … It does not seem copyrightable.” Those in agreement with the ruling pointed out that an authorized recording of a particular performance by a singer is copyrightable.

(2) The next point is only slightly less controversial. The first element considered, that Garcia’s performance wasn’t work made for hire, rests on the argument that she was not an employee but an independent contractor. She had no health or employment benefits and was brought in for a specific task. While this remains a point for debate, and the dissent disagreed at this point as well, professional filmmakers typically use written agreements to protect themselves from uncertainty regarding the “for hire” nature of the work. Youssef did not employ such a contract.

Regardless of whether her work could be considered “for hire,” an actor’s participation in making a movie is generally construed to constitute an implied nonexclusive license for use, even in the absence of a written agreement. This is where things get interesting.

The majority wrote that, while the statute for such non-exclusive licenses should be interpreted broadly to prevent actors who are simply unsatisfied with a movie from claiming that the license has been exceeded, the scope of this interpretation shouldn’t be unlimited. Since the nature of the film “differs so radically from anything that Garcia could have imagined” – again, she was told that she would be in an adventure film set in ancient Arabia – “it can’t possibly be authorized by any implied license she granted Youssef,” according to the majority.

(3) As a result of these arguments, the majority held that a preliminary injunction should be granted to prevent YouTube from displaying the film. In part, this was justified with the potential for “irreparable harm” to Garcia’s person. The dissent disputed the future harm that would be caused by the film’s being viewed.

This case brings a lot of uncomfortable questions with it, and opponents of the decision have already suggested that such a ruling could cause chaos in the entertainment law sector. I am inclined to agree with the ruling in this case because it appears that the majority did a commendable job of ensuring that such a precedent could only apply in such incredibly narrow conditions that the potential for “chaos” is very low. The court has agreed to hear the case again, however, and I eagerly await the ruling.

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