Ninth Circuit Report

• Jurisdiction: United States,Federal
• Citation: Vol. 39 No. 2
• Publication year: 2014
• Author: Anne-Marie Dao
• topic: Contracts,Intellectual Property,Copyright law,Civil Procedure

Ninth Circuit Report

Anne-Marie Dao

Miclean Gleason LLP

This summer's edition of the Ninth Circuit Court Report discusses an interesting opinion by Judge Kozinski that came out in February 2014 relating to a YouTube take-down notice. The case involves copyright law with implications on free speech.

GARCIA V. GOOGLE

Background and Lower Court Holding

In July of 2012, a film entitled "The Innocence of Muslims" was uploaded to YouTube.¹ That film was then translated into Arabic and posted onto YouTube.² The Film purportedly depicts Mohammed in an unfavorable light.³ "Specifically, the Film portrays [Mohammed] as a child molester, sexual deviant, and barbarian."⁴

Cindy Garcia appears in the English version of the film, and at the nine minute mark "appears to accuse 'your Mohammed' of being a 'child molester.'"⁵ Ms. Garcia found this to be problematic because she responded to a casting call for a film entitled "Desert Warrior," which was to be an adventure film set in ancient times.⁶ Ms. Garcia was cast to be the mother of a young child and Ms. Garcia's character was to marry another character named "Master George."⁷

Ms. Garcia states in her complaint that it is clear the words "[i]s Mohammed a child molester" were not spoken by her on set or during filming and that it is clear her performance was dubbed to reflect those words.⁸ Further, Ms. Garcia finds those words "repugnant, vile, and hostile and would never say [them] in any context, even during the course of a performance."⁹ Ms. Garcia is a non-union actor and recalls signing a contract (which her Complaint states she cannot locate a copy of) but that the contract "did not call for her to transfer any rights, including any copyrights and that it was not a 'work for hire' agreement."¹⁰

The fallout from the release of the film was rather large—among other things, Hezbollah issued a fatwa against the film's makers as well as everyone involved in its making. A fatwa is a "religious judicial ruling based on conservative Islamic law, also known as sharia—calling on young Muslims in Western countries in particular to carry out the death sentence on [those involved with the film]."¹¹ Ms. Garcia started receiving death threats and "[s]he responded by taking a number of security precautions and asking that Google remove the video from YouTube."¹²

Ms. Garcia filed eight takedown notices under the Digital Millenium Copyright Act. Google did not take down the film, and the district court treated Ms. Garcia's temporary restraining order which sought the removal of the film from YouTube as a motion for preliminary injunction.¹³ The district court then denied the motion for preliminary injunction, stating that Ms. Garcia was "unlikely to succeed on the merits because [Ms. Garcia] granted [the filmmaker] an implied license to use her performance in the film."¹⁴

The Ninth Circuit Court of Appeals Holding

The Ninth Circuit reversed the lower court holding, finding that Ms. Garcia has shown that...