Today, the Ninth Circuit issued its long anticipated en banc opinion regarding the matter of Garcia v. Google, affirming the district court’s denial of summary judgment and solidifying longstanding principles of copyright history and law.
The facts of this one are ugly and bizarre. After the Benghazi attacks that took place on September 11th, 2012, where Islamic militants killed several members of the U.S. Government, the press and the American public were in search of answers. After all, this was a possible terrorist attack on the anniversary of 9/11, just weeks before an upcoming Presidential election. If there was ever a dog to wag…
Somehow, someway, the media reported that rather than an organized terrorist attack, this act of violence was the byproduct of a spontaneous protest that came about after a group of rogue Muslims took offense to a YouTube video.
The video in question was titled “The Innocence of Muslims” and portrayed the Prophet Mohammed in a critical manner. This claim was later proven to be false, but once the word was out about this film, the sword of Islam began poking around at those purportedly involved with its production.
One actress in particular, Cindy Garcia, was completely in shock as she never agreed to star in the “Innocence of Muslims” and now found herself bombarded with death threats. After her life had been threatened by radical fundamentalists, Ms. Garcia found out that a greasy producer (now in jail) had taken her five second performance originally produced for another film titled “Desert Warrior”, and used it without her consent in the “Innocence of Muslims.”
Fearing for her life, Garcia requested that Google remove the film from all its platforms, including YouTube. She insisted that she had a copyright interest in her five-second performance, a claim that had no basis from the onset. However, because of the barbaric circumstances that surrounded her plea, it attracted more attention than was ever intended or warranted.
As the Ninth Circuit correctly noted today, copyright protection is afforded to authors of creative works, not those who merely have a passive role in their making. Section of 102(a) the Copyright Act requires an “original work of authorship fixed in any tangible medium.”
Garcia’s claim was that the “Innocence of Muslims” infringed her audio-visual dramatic performance. The problem with this lies in the fact that her audio-visual performance itself doesn’t meet the statutory requirements laid out in § 102(a). The fixation required by the Copyright Act must be done “by or under the authority of the author.” Garcia was not the author of her performance. She was an actress for hire who was without question swindled, but nonetheless never promoted to the director’s chair.
Allowing someone in Garcia’s position to assert a copyright interest could have set off a suicide bomb for a wide array of content producers. Under Garcia’s train of thought, a costume designer or a background extra could have exercised their illusory rights if they didn’t agree with the final product, something that copyright law does not afford.
Furthermore, the core of Garcia’s desire in filing this suit was to get the video removed from YouTube. The court recognized this in its opinion but rightly noted that the Copyright Act is not the proper tool for this purpose. To the contrary, copyright was intended by the Framers to be an engine of free expression. While it may be easy for any of us to humanize with Garcia’s cause from a privacy, fraud, or false light perspective, the rights granted by copyright were never designed to serve as an instrument for suppression of speech, as justified as that suppression may be.
Granting Garcia’s claim would have essentially declared jihad on the history and principles that copyright law was founded on, not too mention issued a fatwa on decades of copyright case law. Nice to see the Ninth Circuit mend this mess.
