Full 9th Weighs ‘Innocence of Muslims’ Case


     PASADENA, Calif. (CN) – “Innocence of Muslims,” the movie trailer that depicted Muhammad as a child molester and womanizer, was back in court Monday as the 9th Circuit considered if an actress who appeared in the movie holds a copyright interest in her performance.
     The movie trailer that led to the 2012 attack on the U.S. Consulate in Benghazi has attracted the attention of some of the tech, media and entertainment industry’s leading players since the court announced that it would hear the case en banc.
     At a Monday afternoon hearing, the full panel of the 9th Circuit court sat in a courtroom in Pasadena to hear arguments in Cindy Garcia v. Google. The hotly contested case has elicited legal opinions of big hitters that are concerned that the appeals court could change the landscape of copyright law.
     The court’s docket includes briefs from a Netflix, “Supersize Me” filmmaker Morgan Spurlock, Facebook, Gawker Media, and Twitter, to name a few.
     Over two years ago, Garcia sued Google after her five second performance in the anti-Islamist propaganda movie trailer “The Innocence of Muslims” went viral and led to violent protests across the Middle East.
     Garcia claimed writer-director Sam Bacile, also known as Nakoula Basseley Nakoula, made her believe that she would be appearing in an adventure movie called “Desert Warrior.” The filmmakers later dubbed her voice to include anti-Islamist dialogue in Arabic.
     After she allegedly received death threats over her appearance in the movie, she asked YouTube’s parent Google to take the trailer down.
     YouTube refused, leading to Garcia’s suit against Google on Sept. 26, 2012. She claimed that Google was infringing on her copyright interest in her performance by keeping “Innocence of Muslims” online.
     A few months later, U.S. District Judge Michael W. Fitzgerald denied her motion for a preliminary injunction, finding that the movie’s director had an implied license to use her performance in the film.
     But the 9th Circuit Court of Appeals reversed in February, ruling that Garcia’s rights over her own performance in the film trumped that license.
     “Garcia was duped into providing an artistic performance that was used in a way she never could have foreseen,” then-Chief Justice Alex Kozinski wrote in the published opinion. “Her unwitting and unwilling inclusion in ‘Innocence of Muslims’ led to serious threats against her life.”
     Kozinski added that Garcia had shown that if Google did not take the trailer down she faced “irreparable harm.”
     The court agreed to rehear the case in November, after Google petitioned the court.
     On Monday afternoon, Garcia’s attorney Cris Armenta urged the court to uphold the injunction, arguing that her client clearly established that her life was in danger.
     “Cindy Lee Garcia is an ordinary woman, surviving under extraordinary circumstances,” Armenta said.
     The court, though, seemed more occupied by the question of whether Garcia could claim ownership of her performance.
     “Take the battle scenes for example in ‘Lord of the Rings,'” Judge Margaret McKeown said. “In your view does every single person who made a cameo in the battle scenes have a copyright interest in their performance, as fixed in the film?”
     “Yes,” Armenta replied. “However, it doesn’t end up mattering that much in the film industry because either people sign agreements or they imply consent for the performance by being in the battle. The only people this is really going to affect are those filmmakers who decide with bad intention in their heart from the beginning to go out and defraud people.”
     But Google’s attorney, Neal K. Katyal, disagreed.
     “The danger of the panel opinion if allowed to proceed is that you will fragment copyright law into a thousand different possible claims,” Katyal said. “Ms. Armenta admitted that. She said that any actor, any extra in ‘Lord of the Rings could bring now a lawsuit.”
     “What’s the fear here?” Kozinski asked. “This is not a takedown notice. She goes to court and gets an injunction.”
     Katyal argued more was at stake.
     “Judge Kozinski, this is a dramatic thing to allow individuals who have second thoughts, who allege mistakes, to be able to force take-downs of speech,” the attorney said. “The news organizations are saying, ‘We can’t then host that information, we can’t link to it. We’d be too worried.'”
     The court did not give any indication of when it expects to issue a ruling on the case.

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