Ninth Circuit Stretches Copyright Law to “Err on the Side of Life”

Author: Whitney Devin Cooke

In a ruling sure to puzzle copyright attorneys for years to come, the Ninth Circuit forced Google Inc. to remove a controversial video, “Innocence of Muslims,” from YouTube in light of alleged death threats received by Cindy Lee Garcia, an actress who claimed to be “duped” into her role in the video. The video, which sparked protests around the world, is 14 minutes in length and features the Muslim Prophet Muhammad in an unfavorable light. Persuaded by the evidence Garcia presented of the serious danger she faced, including a fatwah issued by an Egyptian cleric, the Ninth Circuit relied upon the Digital Millennium Copyright Act to force Google to remove the video, stating that it would “err on the side of life” by granting her request. Notably, the Ninth Circuit’s reliance upon the DMCA in lieu of a state-law claim, such as right of publicity, is the result of its own prior rulings, which held that hosting websites like Google are immune from such claims. Accordingly, based on its own precedent, the Ninth Circuit had no choice but to stretch the DMCA to force removal of the video and address the harm faced by Garcia. Google sought an emergency stay of the court’s order, citing irreparable harm to the public’s First Amendment rights, but was denied. The Ninth Circuit only modified its order to state that it did not preclude the posting or display of versions of “Innocence of Muslims” that did not feature Garcia.

Google will likely request en banc and Supreme Court review of the decision, which is the latest in a recent series of cases in which courts use online copyright procedures set forth in the DMCA to remedy supposed injuries that are not technically covered by the Copyright Act. For Hollywood insiders, this decision underscores the importance of contracts which specify that an actor’s performance is a work made for hire specially commissioned for use as part of a motion picture or other audio-visual work, and waive an actor’s right to assert a copyright claim like the one asserted by Garcia.

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