Anti-Islamic Film Case Will Face Full 9th Circuit

     (CN) – The dispute over Google’s refusal to pull “Innocence of Muslims” from YouTube, a case closely watched by copyright lawyers, free-speech advocates and filmmakers, faces rehearing by the full 9th Circuit, the court said Wednesday.
     Intellectual property and Internet law scholars, along with documentary filmmakers, the Los Angeles Times, the Electronic Frontier Foundation, Netflix, Adobe Systems and others, had urged the federal appeals court to reconsider the February ruling that ordered the removal of the controversial video in response to an actor’s lawsuit.
     Cindy Lee Garcia sued Google in 2012 after it declined to remove the 14-minute video in which she appears to ask if Muhammad was a “child molester.”
     Garcia said the film’s writer and producer, Mark Basseley Youssef aka Nakoula Basseley Nakoula aka Sam Bacile, paid her $500 to appear in what she thought was an adventure movie called “Desert Warrior.”
     Youssef never finished that film but instead allegedly recycled Garcia’s performance for “Innocence of Muslims” without telling her. Garcia said she received death threats after an Arabic version of the video went viral and led to violent protests and dozens of deaths in some 20 countries.
     U.S. District Judge Michael Fitzgerald initially ruled for Google, which owns Youtube, in Los Angeles in late 2012, rejecting, among other things, Garcia’s argument that the video infringed on a copyright she held to her performance for the “Desert Warrior” project.
     The 9th Circuit was divided, 2-1, in reversing that decision just over a year later, raising from obscurity what Chief Judge Alex Kozinki called the “rarely litigated question” of whether an actor retains an interest in an “independently copyrightable” performance in a joint work.
     Kozinski, writing for the majority, said Garcia had met the “minimum requirements” of the acting craft to make her performance “fixed” and therefore copyrightable.
     “We need not and do not decide whether every actor has a copyright in his performance within a movie,” Kozinksi wrote for the Seattle-based majority. “It suffices for now to hold that, while the matter is fairly debatable, Garcia is likely to prevail.”
     Google petitioned for rehearing some weeks later, noting that the U.S. Copyright Office has since “refused registration of the very copyright claimed in this case.”
     The agency had found that Garcia’s individual copyright for her performance was “contrary to the Copyright Act and to the office’s ‘longstanding practices,'” Google said.
     “As the copyright office has now explained, federal law provides that ‘dramatic performances in motion pictures’ are ‘part of the integrated work- the motion picture,” Google’s petition states.
     In the ensuing months, supports of Google hit the appellate court with a deluge of friend-of-the-court briefs.
     Attorneys for Los Angeles Times Communications, The E.W. Scripps Company, The Washington Post, National Public Radio and other media companies argued that the panel majority had “expansively interpreted copyright law to provide a remedy to an undeniably sympathetic plaintiff, without considering the important First Amendment interests implicated by its decision.”
     “By ordering the immediate suppression of a controversial video that has been the subject of widespread discussion over the last two years, based on the alleged copyright interest of one performer who appears in a few seconds of the film, the panel’s decision poses serious risk to news organizations that extend far beyond this case,” the media companies argued.
     A group of intellectual property professors argued in their brief that the panel majority had “misinterpret[ed] a foundational element of the copyright law: the baseline requirements for copyrightability.”
     The scholars said that the ruling, if allowed to stand, would “create significant practical difficulties for firms and individuals producing the creative works that copyright is intended to incentivize.”
     As is the norm, the appellate court did not comment in agreeing to reconsider the case before an 11-judge panel of judges. The previous ruling can no longer be cited as precedent.

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