By Ross Todd, From The Recorder

SAN FRANCISCO — Actress Cindy Lee Garcia’s two-year quest to scrub the Internet of her appearance in the anti-Islamic film “Innocence of Muslims” was the departure point for a roving argument before an 11-judge panel of the U.S. Court of Appeals for the Ninth Circuit in Pasadena Monday afternoon.

In a discussion that touched on the copyright interest owed to artists from Celine Dion to an extra in a battle scene of one of the Lord of the Rings movies, the Ninth Circuit considered Garcia’s claim to a copyright in her performance in the film and whether it warrants an injunction barring Google Inc. from hosting the video on YouTube.

Garcia originally filed suit in September 2012 claiming she’d agreed to perform in an Arabian adventure project with the working title of “Desert Warrior.” Only later, she says, did she discover her performance was used in “Innocence of Muslims.”

Garcia, who’s been subject to death threats since an Arabic translation of the movie hit YouTube, won an injunction from an earlier Ninth Circuit panel. The panel’s decision was vacated, however, when a majority of the full court voted to take up the case en banc in November.

Garcia’s lawyer, M. Cris Armenta, opened Monday’s argument by reading a string of the threats Garcia received.

After hearing the explicit and often-profane threats, Judge M. Margaret McKeown said, “of course we take those threats seriously.”

But McKeown quickly cut to the question at the crux of the case, asking whether the threats against Garcia have any bearing on whether the actress holds a copyright to her performance.

McKeown also asked Armenta if, under her reading of copyright law, all the extras in a battle scene could claim a copyright interest to their performance.

Armenta said they likely could, but only filmmakers who defraud actors into performing in their projects would be subject to injunctions such as the one she was pursuing for Garcia. McKeown remained skeptical: “That sounds like a fraud or a right of publicity claim, but not a copyright claim,” she said.Google’s lawyer, Neal Katyal of Hogan Lovells, argued that the district court judge who initially heard Garcia’s injunction request was right to deny it. But Katyal faced tough questioning from Judge Alex Kozinski, the author of the majority opinion in the Ninth Circuit’s earlier 2-1 panel decision in the case.

Katyal pointed to the large number of amici who weighed in on YouTube and Google’s behalf, pointing to the burden that technology companies and news organizations would face in dealing with potential copyright claims any time there were allegations of fraud involved.

“What’s the fear here?” asked Kozinski.

Under Garcia’s theory, Katyal argued, anyone could allege fraud if they were unhappy with the end product of their work.Later in the argument, Kozinski asked what the difference is between Garcia’s claim to her performance and Celine Dion’s claim to a copyright of a song on the Titanic sound track.

“Ms. Garcia has never alleged, Judge Kozinski, to my knowledge that she wanted her performance to be a separate stand-alone work,” Katyal said. “She could have put that in her complaint. She could have put in her briefs. But it’s not in there.”

IMAGE: Judge M. Margaret McKeown, United States Court of Appeals for the Ninth Circuit Diego – M. Radzinschi / National Law Journal

For more on this story go to: http://www.therecorder.com/id=1202679165776/Ninth-Circuit-Takes-Up-Innocence-of-Muslims-TakeDown-Case#ixzz3M48sca4g