Could The Innocence of Muslims Change Copyright Law?

By Pedro Celis

The anti-Islamic YouTube video The Innocence of Muslims has had widespread ramifications. It caused riots around the world and played a prominent role in the Benghazi scandal. But could the YouTube video also lead to groundbreaking copyright case law?

The Ninth Circuit recently ordered Google to remove the video from YouTube. The court ruled that Cindy Garcia, an actress who appeared in the video for approximately 5 seconds, proved that she was likely to succeed on her copyright claim against the filmmaker. Garcia argued that she had an independent copyright in her performance in the film, despite the fact that she received $500 for her performance. Although she did not contest that her performance was both scripted and directed, the court found that her performance had enough creativity to support an independent copyright claim.

The court, in a majority opinion by Chief Judge Kozinski, also found that the filmmaker exceeded his implied license to use Garcia’s performance. Garcia was unaware of the anti-Islamic content during filming. She believed she was acting in an Arabian adventure movie, and her character’s dialog was later dubbed. Because the film “differ[ed] so radically from anything Garcia could have imagined,” the use of Garcia’s performance exceeded the implied license.

The court also rejected the argument that the “work-for-hire” doctrine precluded Garcia from asserting an independent copyright claim. Under the doctrine, if Garcia were acting in her capacity as an employee, or as an independent contractor, the filmmaker would retain the rights to her performance. But because the filmmaker was not in the “regular business” of making films, and he lacked “any union contracts, relationships with prop houses or other film suppliers, leases of studio space or distribution agreements,” the court did not apply the doctrine.

As the dissent notes, finding that Garcia had an independent copyright, and that the filmmaker did not have an implied license to use her performance are both novel holdings. Google has removed the video while it appeals the order, asking the Ninth Circuit to rehear the case en banc. Given the opinion’s groundbreaking nature, Google seems to have a strong case for reconsideration. But the Ninth Circuit has already denied one judge’s request for an en banc rehearing in the case. Google will have several other opportunities to challenge the court’s decision, but for now it looks like The Innocence of Muslims may have a lasting effect on copyright law.