Federal appeals court orders Google to remove Mohammed movie from YouTube

Hotair ^ | 02/26/2014 | AllahPundit

[SeekAndFind]

It’s not what you think. In fact, the opinion was written by Alex Kozinski, a famously libertarian-leaning judge who was appointed to the Ninth Circuit by Reagan. The question wasn’t whether the film is defamatory or a species of “fighting words” unprotected by the First Amendment (although Kozinski does, in fact, use that exact term at one point in its colloquial sense to describe the film’s offense to Muslims). The question is whether an actor owns a copyright in her performance and whether that copyright is violated if the filmmaker so distorts that performance that it violates the “implied license” she’s granted him to use it on film. It’s an intellectual property rights case, in other words, albeit against a stark First Amendment backdrop.

Google, which could have quietly purged “Innocence of Muslims” long ago to spare itself lots of grief and death threats, fought this all the way. Held: The filmmaker did exceed the implied license he had to use a cast member’s performance in his film. He convinced her she was acting in a completely different movie, then overdubbed her lines in post-production so that he could stick the footage he’d shot into the anti-Mohammed film instead. Essentially, he obtained her copyright to her performance under false pretenses. Take it down, says Kozinski:

“This is a troubling case,” Chief Judge Alex Kozinski wrote. “Garcia was duped into providing an artistic performance that was used in a way she never could have foreseen.”

Garcia sued after she discovered she was in the video, after efforts to persuade Google to take it down from YouTube were repeatedly rebuffed. The actress had been cast in a minor role in a film called “Desert Warrior,” and paid $500 by director Mark Basseley Youssef, but the movie never materialized, according to court papers…

In her suit, Garcia maintained that YouTube’s unrivaled popularity gave the film a broad audience, and that she had a right to get it removed because she had been misled by the director and retained copyright protections to her artistic work.

A key bit from the opinion on the “implied license” a filmmaker enjoys to his cast’s performance. It’s reeeeeeally broad, but not so broad as to include fraud:

How broad is the implied license in cases that don’t involve outright fraud, i.e. in a case where a filmmaker sincerely sets out to make a certain kind of film and then changes his mind midway through? Hard to say, but it probably doesn’t matter. How often will an actor sue to minimize his exposure in a high-profile project by having it taken offline?

There is a dissent, incidentally, beginning on page 19 of the opinion, but that too focuses on property rights more so than the First Amendment. An actor does not in fact have a copyright to her performance, Judge Smith argues, which means Garcia has no cognizable interest in having the film removed from YouTube. I don’t know what practical reason she has, frankly — after 18 months of infamy in the Middle East, the death-threat cake is baked whether the movie stays up or not — but oh well. If the filmmaker’s determined to keep this going, presumably he could edit out Garcia’s scenes and then re-upload it without a problem — unless and until the next cast member sues.

[SkyDancer]

But the anti-Jew/Israel/Christian/Yashua mockery video’s can remain because of free speech and all that.

[jdege]

The issue wasn’t the content of the movie, only that it included footage of an actress from whom the producer had not obtained consent.

[Lurking Libertarian]

But the anti-Jew/Israel/Christian/Yashua mockery video’s can remain because of free speech and all that.

Not (according to Kosinski's majority opinion) if the actors in them were defrauded into appearing in them.

What if I hired you to act in a biblical movie about the life of Christ and then, after the filming was over, I overdubbed your voice so it looked like you were saying, "Jesus is gay!" Would you be OK with that?

[SkyDancer]

Okay - thanks. Makes more sense. However the headline was a bit misleading. OTOH there’s all those Hitler parodies that at first were also being asked to be removed due to copy write laws.

[SkyDancer]

See above:

Okay - thanks. Makes more sense. However the headline was a bit misleading. OTOH there’s all those Hitler parodies that at first were also being asked to be removed due to copy write laws.

[castlegreyskull]

Did he have it removed because it was mega-boring?

[SkyDancer]

Was just thinking on the same lines with those Hitler parodies I mentioned. The actors are speaking German but the subtitles in English are not saying what they’re really saying. BTW - I saw the movie “The Bunker” and could not help myself from laughing at certain scenes I had seen as a parody.

[jdege]

Just a follow-up:

“Innocence of Muslims” injunction doesn’t apply to copies of the film that exclude plaintiff Cindy Garcia’s performance

The Ninth Circuit has just either corrected or clarified its injunction (depending on how you read the initial scope of the injunction), to make clear that:

This order does not preclude the posting or display of any version of “Innocence of Muslims” that does not include Cindy Lee Garcia’s performance.

[HiTech RedNeck]

So one with her blacked or pixeled out oughtta be ok too

[tanknetter]

The interesting thing here, is that it upholds the right of artists to be able to express themselves in ways that they themselves determine are acceptable.

This ruling is pretty easy to apply to Christian bakers and gay wedding cakes. If applied consistently, it means that Christian bakers can indeed claim that wedding cakes are works of art and they can prohibit them from being used in ways contrary to their artistic wishes ...