By Marisa Kendall, From The Recorder

SAN FRANCISCO — An actress can’t use copyright law to force Google to remove a five-second clip of the film “Innocence of Muslims” from YouTube and other Internet platforms, the U.S. Court of Appeals for the Ninth Circuit said in an en banc decision Monday that reversed last year’s controversial 2-1 panel decision. The work of an individual performer in a film isn’t protected by copyright law, the court ruled. And Judge Alex Kozinski’s 2014 opinion ordering the clip’s removal “gave short shrift to the First Amendment values at stake,” Judge M. Margaret McKeown wrote Monday.

“The mandatory injunction censored and suppressed a politically significant film—based upon a dubious and unprecedented theory of copyright,” she wrote. “In so doing, the panel deprived the public of the ability to view firsthand, and judge for themselves, a film at the center of an international uproar.”

Kozinksi responded in a dissent Monday accusing the majority of making “a total mess of copyright law.”

Cindy Lee Garcia, who appeared in “Innocence of Muslims,” demanded the clip be taken down after she began receiving death threats from viewers offended by the film’s portrayal of the Islamic prophet Mohammed.

A YouTube representative, speaking on behalf of Google, said the company is pleased with the ruling.

“We have long believed that the previous ruling was a misapplication of copyright law,” the representative wrote in an emailed statement.

Hogan Lovells partner Neal Katyal represents Google. Garcia is represented by Los Angeles attorney M. Cris Armenta, who didn’t respond to a request for comment Monday.

Garcia claimed she was tricked into appearing in an offensive film that portrayed Mohammed as a murderer and pedophile. She said she received $500 for a brief appearance in what was supposed to be an action-adventure thriller called “Desert Warrior,” but film producers later dubbed over her lines to make it seem as if she were asking, “Is your Mohammed a child molester?” The director, Mark Basseley Youssef, posted a 14-minute trailer on YouTube in June 2012, which was then translated into Arabic. The result was wide-spread outrage and violent protests across the Middle East—an Egyptian cleric issued a fatwa calling for the death of anyone involved in the film, Garcia received multiple death threats, and politicians linked the film to the Sept. 11, 2012 attack on the U.S. Consulate in Benghazi, Libya.

Monday’s ruling said Garcia failed to show the law and facts “clearly favor” her position, a heightened standard imposed in this case because granting an injunction would force Google to take the drastic measure of removing copies of the film. The U.S. Copyright Office already had rejected Garcia’s copyright application, saying individual actors can’t copyright performances contained within a motion picture. McKeown agreed, adding that to grant individual rights to actors and actresses would splinter a movie into several different artistic works, creating a “legal morass.” She used the “Lord of the Rings” trilogy as an example, which used a cast of 20,000 extras.

“Treating every acting performance as an independent work would not only be a logistical and financial nightmare,” McKeown wrote, “it would turn cast of thousands into a new mantra: copyright of thousands.”

She also noted copyright belongs to a work’s author, or the person who translated an idea into a tangible product. In this case that distinction goes to the director and crew who recorded Garcia’s performance, not Garcia.

McKeown took issue with Garcia’s argument that without an injunction, she would suffer irreparable harm in the form of damage to her reputation, unfair forced promotion of a hateful film, and possibly even death. While the court takes those threats seriously, McKeown wrote, copyright law is intended to protect the value and marketability of an author’s work, not the author’s personal safety.

Privacy law might provide a remedy for Garcia in this case, McKeown wrote. Likewise, McKeown suggested Garcia might have had better luck if she pursued an injunction using right of publicity or defamation claims. And in a footnote, McKeown added Garcia may have a contract claim, as the actress recalls signing a document related to the film’s production.

In his dissent, Kozinski wrote Garcia’s performance met all the requirements for copyright protection.

“In its haste to take Internet service providers off the hook for infringement, the court today robs performers and other creative talent of rights Congress gave them,” he wrote. “I won’t be a party to it.”

Under the majority’s reasoning, Kozinski wrote, scenes of a movie would not be protected by copyright until they become part of the final product. A “dastardly crew member” would be free to run off with a copy of a scene and display it for profit until the movie was finished.

McKeown struck back, calling Kozinski’s dissent a hyperbole and accusing him of raising a false alarm.

“Substituting moral outrage and colorful language for legal analysis,” she wrote, “the dissent mixes and matches copyright concepts.”

Two more judges weighed in. Judge Paul Watford concurred with the result, but said the majority ruled too broadly, unnecessarily crafting new copyright rules. Instead, Watford wrote, he would have bypassed the copyright issue and rejected Garcia’s injunction because she hadn’t shown harm: The fatwa will remain in place whether or not “Innocence of Muslims” is on YouTube, Watford wrote.

Judge Stephen Reinhardt wrote seperately to express his frustration with the court’s refusal last year to grant an immediate, emergency rehearing en banc.

“By leaving in place the panel’s unprecedented gag order for well over a year,” Reinhardt wrote, “we surrendered to the threats of religious extremists who were offended by the film.”

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=1202726830518/YouTube-Wins-Takedown-Fight-Over-Innocence-of-Muslims-Clip#ixzz3aaxsLUho