In March 2014, I had written about a U.S. Circuit Court ordering that Google take down from YouTube the controversial parody video ‘Innocence of Muslims’. On May 18th, the Court of Appeals has rescinded the order.
To give a little background- Innocence of Muslims is an irreverent parody film that was uploaded on YouTube in 2012, when it sparked riots all over the world for its provocative depiction of Islam. Google took a three-pronged approach in reacting to the incense that the video caused around the world. First, it allowed the content to remain in several countries where protests occurred, but were mild. Second, it voluntarily took down the video in countries where the situation was especially sensitive, namely, Egypt and Libya. Third, the company took down the video in some countries (including India) as it violated local laws. It also denied requests by the White House to take the video down, as the video clearly fell within the 1st Amendment rights that the American Constitution grants to its citizens.
However, last year, Cindy Garcia, one of the actors in the movie (who appears for a total of 5 seconds in the film) filed a suit against Google requesting that the video be taken down, arguing that the video violated her copyright in the film. The decision of the Court to grant an injunction was based on specious reasoning, as there was clear precedent in US law that a person can claim copyright over a work as a co-author only if they are the “inventive or master mind”, having control over the work, a standard that a performer who appears for 5 seconds is very unlikely to meet.
Thankfully, the Court of Appeals has set aside the previous order on the grounds that Garcia did not have a valid copyright claim in the film. Moreover, as Garcia’s copyright claim in the film was dubious in the first place, the Court held that an injunction on potential infringement of copyright would amount to prior restraint of speech (an issue that American free speech jurisprudence takes very seriously). While sympathetic to Garcia’s predicament (Garcia’s originally non-provocative lines were dubbed over with provocative lines without her consent), the Judge held, “We are sympathetic to her plight… Nonetheless, the claim against Google is grounded in copyright law, not privacy, emotional distress, or tort law, and Garcia seeks to impose speech restrictions under copyright laws meant to foster rather than repress free expression.”