The 'Innocence of Muslims' Case: Four Key Facts

Recently a federal court ordered the removal from YouTube of Innocence of Muslims, the controversial video that you may remember from the Benghazi crisis. The problem with the video was not that it is anti-Muslim, but that it violates the copyright of an actress who appeared in it. This is a "preliminary injunction," and the case is still being litigated.

A number of commentators have voiced concerns about censorship and overly strong copyright protections, including R Street's Jeremy Kolassa. I'm a little less concerned. Here are four facts that seem highly relevant to me:

1. The actress is not claiming to have a copyright interest in the movie as a whole. She is merely claiming ownership of her own appearance in it. This type of thing is not litigated often, because people who appear in movies -- or work on them behind the scenes -- typically sign contracts beforehand. (Surprisingly, there doesn't even seem to be much case law about whether a performance is a copyrightable "work" at all.) Further, the problem here can be addressed by removing or re-shooting her segment, which is 5 seconds of the 13-minute film.

2. The actress says she was filmed for a role in a fictional story, not an anti-Islamic "documentary." From the decision:

Cindy Lee Garcia ... agreed to act in a film with the working title "Desert Warrior." ... "Desert Warrior" never materialized. ... Garcia first saw "Innocence of Muslims" after it was uploaded to YouTube.com and she discovered that her brief performance had been partially dubbed over so that she appeared to be asking, "Is your Mohammed a child molester?"

3. Garcia never signed any sort of agreement saying the filmmaker could do whatever he wanted with the footage.

4. The ruling addresses, fairly persuasively in my view, the biggest concern that has been raised about it.

Some have worried that this could invite a rash of lawsuits -- anyone who had any role in a film or newspaper story can now say their copyright has been violated. Signed agreements address this in many situations, but there are indeed questions raised about "implied" agreements, such as when a source talks to a journalist.

I find the court's argument on this point convincing, though it will be hard to draw a precise line:

If the scope of an implied license was exceeded merely because a film didn't meet the ex ante expectation of an actor, that license would be virutally meaningless. A narrow, easily exceeded license could allow an actor to force the film's author to re-edit the film -- in violation of the author's exclusive right to prepare derivative works. Or the actor could prevent the film's author from exercising his exclusive right to show the work to the public. In other words, unless these types of implied licenses are construed very broadly, actors could leverage their individual contributions into de facto authorial control over the film.

Nevertheless, even a broad implied license isn’t unlimited. Garcia was told she’d be acting in an adventure film set in ancient Arabia. Were she now to complain that the film has a different title, that its historical depictions are inaccurate, that her scene is poorly edited or that the quality of the film isn’t as she’d imagined, she wouldn’t have a viable claim that her implied license had been exceeded. But the license Garcia granted Youssef wasn’t so broad as to cover the use of her performance in any project. Here, the problem isn’t that “Innocence of Muslims” is not an Arabian adventure movie: It’s that the film isn’t intended to entertain at all. The film differs so radically from anything Garcia could have imagined when she was cast that it can’t possibly be authorized by any implied license she granted Youssef.

A clear sign that Youssef exceeded the bounds of any license is that he lied to Garcia in order to secure her participation, and she agreed to perform in reliance on that lie. Youssef’s fraud alone is likely enough to void any agreement he had with Garcia. But even if it’s not, it’s clear evidence that his inclusion of her performance in “Innocence of Muslims” exceeded the scope of the implied license and was, therefore, an unauthorized, infringing use.

Essentially, anyone filing a follow-up lawsuit will have to show that they did not grant an implied license for their work to be used, and implied licenses will be construed broadly. Very rarely will a performer be able to make a case as strong as this one.

By the way, here's Google's response: