9th Circuit May Stay YouTube Takedown Decision

Rhett Pardon

SAN FRANCISCO — The full 9th U.S. Circuit Court of Appeals will decide whether to stay a panel’s decision that requires YouTube to take down clips from the anti-Islamic film “Innocence of Muslims."

The original 9th Circuit ruling, made in late February, has implications for the adult entertainment because it gives with wide latitude a strong tool for performers who claim "actor's remorse," according to industry attorney Marc Randazza in an analysis for XBIZ.

Last week, the court’s en banc coordinator said an unidentified active judge of the court had requested en banc review of the panel’s denial of a stay.

Randazza, when reached on Monday about the court's decision to meet en banc over the case, said that the 9th Circuit's original ruling was the "right result but for all the wrong reasons" and that the decision to go the full panel was "interesting."

"I would think that the ruling ultimately would be reversed over this brand new interpretation by the court," Randazza told XBIZ.

The 9th Circuit found that Cindy Lee Garcia had created an original work in her performance, “Innocence of Muslims," and that she retained copyrightable rights because she did not execute a valid model release transferring them to the film’s creator.

The 9th Circuit also found that film producers typically have an implied license in the performance of actors appearing in their creations, but that the film’s creator far exceeded that license in this case.

"Under the Copyright Act, it is novel — though not unprecedented — for the court to find a performer has copyright rights in his or her performance," Randazza said in the analysis of the decision. "An actor’s performance contains originality and may be preserved in a fixed form, satisfying the standards for copyrightability under the Copyright Act ."

Garcia, an actress who answered a casting call for a role in a film to be titled “Desert Warrior,” was paid $500 for her part. She said she thought the film was about the life of a typical Egyptian 2,000 years ago but later was shocked to find out the film was a short anti-Islamic video called “Innocence of Muslims” streaming on YouTube.

In the video, she was portrayed as making anti-Muslim statements.  Later, according to court records, an Egyptian cleric issued a fatwa, calling for actors and production crew involved in the video to be killed.

Garcia repeatedly ordered Google and subsidiary YouTube to take down the video, but Google repeatedly declined.

Garcia later sued Google and YouTube, arguing that her performance in the film was copyrightable and that copyright interest entitled her to demand that YouTube pull the film.

A federal court denied Garcia’s request, so she took the case to the 9th Circuit where a three-judge panel sided with her last month.

The 9th Circuit panel held that she had a sufficient copyright right in her performance, despite the fact that she only appeared in the film for a few seconds, to remove the film from circulation.

On Monday, it wasn't determined when the full panel would hear Garcia's appeal.