BY PETER SCHEER—Video journalists and documentary filmmakers can breathe easier because of the suspension of a recent appeals court decision that interpreted federal copyright law in a way that might have handed a censor’s power to the subjects of interviews.
The case, Garcia v. Google, concerns “Innocence of Muslims,” a highly inflammatory film—actually, a 13-minute movie trailer—-that was posted to YouTube in 2012. Intended to shock and offend, the Islamophobic video depicts the prophet Muhammad as a deranged thug, a child molester, womanizer and buffoon. It sparked mass protests and demonstrations across the Middle East, some of which turned violent and deadly.
Google, which owns YouTube, came under intense pressure to take down the video, including the blocking of the entire YouTube website in many countries with Muslim populations. Although Google unilaterally decided to restrict access in a few hot spots (notably Libya and Egypt, which were on the verge of civil war at the time), the company, to its credit, resisted demands for broader censorship.
Among the people most offended by “Innocence of Muslims” was Cindy Garcia, an actor in the film. She sued Google in federal court, claiming that her appearance in the film had damaged her professional reputation and subjected her to great risk of harm (evidenced by repeated death threats). Moreover, Garcia said she had been misled about the content of the film, which was completely changed in the editing process, after the conclusion of filming.
This argument received a welcome reception in the ninth circuit federal court of appeals. Judge Alex Kozinski, writing the majority decision in Garcia v. Google, focused on Garcia’s legal right to the use of her own performance–what the copyright statute refers to as her “performance right.” Kozinski reasoned that Garcia’s performance right, which is separate from the copyright in the film as a whole, had been infringed by the filmmakers.
Ordinarily, an actor in a movie can’t sue for infringement—and few, if any, have even tried. The reason is that an actor in a movie either signs a release or is assumed, on the basis of her voluntary participation—her acting in the film—-to have consented to the use of her performance. But what if an actor is defrauded, her consent procured through misrepresentation? Judge Kozinski concluded that that, in effect, is what happened to Garcia.
The movie that was described to her, and shown to her in the script, was radically different from the movie that ultimately was posted on YouTube. Garcia had agreed to perform in one film (“Desert Warrior,” an adventure movie about ancient Egypt, more than 500 years before the birth of Muhammad), and her performance had been used, instead, in another film, “Innocence of Muslims,” a production of anti-Islamic propaganda. The content was altered in post-production, through editing of the video and overdubbing of Garcia’s voice. These circumstances invalidated Garcia’s consent, with the upshot that “Innocence of Muslims” infringed her performance right, Kozinski said..
The appeals court, having found infringement, then ordered Google to do what could not be accomplished by mobs in the streets, by threats of violence, and by the demands of powerful autocrats across the globe: to remove the video from YouTube. . . . . Not exactly a banner day for freedom of speech.
One of America’s most gifted jurists, Judge Kozinski is a practitioner of disruptive judicial innovation. He does not shy away from decisions that upend the status quo. And he has a long and illustrious history of protecting first amendment rights. (Disclaimer: he is also a friend). Although he no doubt believed he had crafted a narrow opinion in Garcia v. Google, with few spillover effects for news media, he miscalculated.
A new theory of liability, once unwrapped, is not easily contained. Consider a documentary news segment–think “60 Minutes” or “Frontline” — featuring an unflattering interview with a high-profile, corporate CEO. The unhappy CEO can’t afford to be seen as acquiescing in her depiction in the news program, and so resolves to file suit against the offending producers and journalists.
Prior to the Garcia v. Google decision, the CEO would have had only one recourse–a libel suit—and that is a path littered with big obstacles: a requirement that the CEO show that the documentary is false; a requirement that she prove the film was made with “knowledge of its falsity or with reckless disregard for the truth.” And in California and many other states, her libel suit would face the additional obstacle of a defense based on anti-SLAPP laws. If successful, the anti-SLAPP defense not only would abort the CEO’s suit, but also force her (or her company) to pay the journalists’ attorney’s fees.
The Garcia v. Google decision, however, potentially offers the angry CEO a new option, allowing her to circumvent these obstacles and, instead, to file suit alleging infringement of her right of performance. People who sit for a documentary interview, and later wish they hadn’t, invariably argue that they were misled about the focus of the documentary, or that their aired comments were taken out of context in an editing process calculated to make them look guilty or incompetent (or both).
These arguments, even when groundless, are easily made and hard to disprove. Are they enough to establish infringement liability under the theory of Judge Kozinski’s opinion? Maybe, maybe not. But the uncertainty alone would give leverage to interview subjects who sue documentary filmmakers (or threaten to). And the risk of costly litigation for infringement, once it becomes widely known, would have a proverbial “chilling effect” on future news documentaries.
Fortunately, Kozinski’s opinion is not the last word in the Garcia v. Google case. The full ninth circuit appeals court voted last week to reconsider his decision. The novel legal theory of infringement is on hold pending this reconsideration, which is good news. Although there’s a chance the infringement theory could be revived, let’s hope the full court consigns it to the judicial archives.
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Peter Scheer is FAC’s executive director. FAC has joined amici briefs supporting supporting Google in the Garcia v. Google case.