An actress who lost a lawsuit to force Google’s YouTube to remove an anti-Muslim video from its site pursued the wrong claim against the wrong party.
That’s one conclusion from a decision by 9th Circuit U.S. Court of Appeals, which ruled on Monday that Cindy Lee Garcia cannot compel YouTube to take down “Innocence of Muslims” because she cannot copyright her five-minute performance in the video, which disrespects the Prophet Muhammad and sparked death threats against Garcia.
“In this case, a heartfelt plea for personal protection is juxtaposed with the limits of copyright law and fundamental principles of free speech,” U.S. Circuit Judge Margaret McKeown wrote for a majority of the court. “The appeal teaches a simple lesson—a weak copyright claim cannot justify censorship in the guise of authorship.”
The decision represents a win for free speech. Though the First Amendment does not shield copyright infringement, Garcia could not claim a copyright in her performance. According to the court, granting a copyright to an actor based solely on her performance—a work for hire—would put distributors such as YouTube in the position of having to obtain licenses from everyone who appears in a film, as opposed to obtaining the permission of the work’s author, in this case Youssef.
The alternative would render distribution of movies unworkable, the court found. As McKeown noted:
“Treating every acting performance as an independent work would not only be a logistical and financial nightmare, it would turn cast of thousands into a new mantra: copyright of thousands. That leaves Garcia with a legitimate and serious beef, though not one that can be vindicated under the rubric of copyright.”
What if Garcia had grounded her complaint in the threats to her reputation and privacy that followed Youssef’s using Garcia’s performance in a way that was different than she had authorized? Though she appeared knowingly in “Desert Warrior,” Youssef allegedly overdubbed that performance to make her appear to ask if Muhammad were a “child molester” as part of a film that he disseminated widely.
Under California law, a person’s right to privacy may be violated in varied ways, including by acts that cast someone in a false light. “Innocence of Muslims” portrayed Garcia in a light that was highly offensive to millions of people worldwide, judging by the outrage the film has provoked.
False light can be difficult to prove in California without a showing of financial damages. Moreover, even were Garcia able to prevail against Youssef for portraying her in a false light, it’s unlikely that would authorize her to order YouTube to take down the video because, as the trial court noted, the harm from the trailer’s appearance on the Internet already has occurred.
Garcia sued both Google and Youssef initially in state court, where she alleged a series of wrongs, including violation of her privacy and intentional infliction of emotional distress, that she later dropped against Google when she sued the company in federal court for copyright violation.
Note that Garcia could not sue Google for Youssef’s alleged defamation. Federal law shields online services from liability for information they host that’s created by third parties.
Thus, to the extent Garcia has a remedy, it lies in a wrong to her reputation instead of copyright. As McKeown explained:
“We are sympathetic to her plight. Nonetheless, the claim against Google is grounded in copyright law, not privacy, emotional distress, or tort law, and Garcia seeks to impose speech restrictions under copyright laws meant to foster rather than repress free expression.
Privacy laws, not copyright laws, may offer remedies tailored to Garcia’s personal and reputational harms. On that point, we offer no substantive view. Ultimately, Garcia would like to have her connection to the film forgotten and stripped from YouTube. Unfortunately for Garcia, such a ‘right to be forgotten,’ although recently affirmed by the Court of Justice for the European Union, is not recognized in the United States.”
Garcia’s claims may have a shot but it’s a long one. It’s also a reminder that you may have less dominion over your image than you think. As the ruling demonstrates, what’s workable for content creators and distributors can be at odds with the expectations we have in how our likenesses appear online.
As Matthew Schruers, a vice president of law and policy at the Computer and Communications Industry Association, which supported Google and YouTube in the case, told Wired, “Everything you and I and the rest of the world upload to YouTube, is protected the moment we hit record.”