In a case closely watched by the technology and Hollywood industries as well as free speech advocates, a federal appellate panel heard arguments Monday on whether it should overturn an unprecedented decision ordering Google Inc. to take down an anti-Muslim film trailer based on an actress' copyright claims.
The 11-judge panel of the U.S. 9th Circuit Court of Appeals is reconsidering the case of actress Cindy Lee Garcia, who said she was subjected to numerous death threats after she briefly appeared in the trailer of a film entitled "Innocence of Muslims." The video, which was posted on YouTube, sparked widespread rioting across the Islamic world that led to more than 17 deaths.
A three-judge panel of the court earlier this year ruled 2 to 1 that Garcia may have a copyright claim for her five-second performance and ordered Google to remove the clip from YouTube and other platforms. The February opinion was widely panned by 1st Amendment advocates, who raised concerns that similar claims could be used to demand that other material be removed from the Web, dampening free speech.
Before Monday's hearing, various groups — including documentary filmmakers, Internet law and intellectual property law professors, high-tech companies and Netflix — filed amicus briefs urging the larger panel of judges to overturn the decision. Unions representing actors and musicians filed a brief in support of Garcia.
The Los Angeles Times, along with other media organizations, also filed papers asking the court to rehear the case.
In arguments Monday, judges questioned attorneys for both sides about what distinguishes a performer who plays a small role in a larger work and someone who should be recognized as a joint author entitled to part of the copyright.
Judge M. Margaret McKeown questioned whether recognizing Garcia's copyright would amount to ruling that everyone who appears in a film, including a busboy serving drinks in a scene, owns a part of the end product.
"Everybody has a slice of the pie," McKeown said. "That's not what the copyright law intended."
She asked Garcia's attorney, M. Cris Armenta, whether the battle-scene extras in "Lord of the Rings" were entitled to part of the copyright. Armenta said they were, but that they would have relinquished that right in typical Hollywood contracts. Garcia retained her right because the filmmaker behind "Innocence of Muslims," Mark Basseley Youssef, deceived her about the film and how it was going to be used, voiding any agreement between them, the attorney said.
Garcia, according to her attorney, was told by Youssef that the film would be called "Desert Warrior" and that it was "an adventure film … about ancient Egyptians." Garcia's dialogue in the YouTube clip was apparently dubbed over with the line: "Is your Mohammed a child molester?"
Neal Kumar Katyal, representing Google, said such a view would "fragment copyright law into a thousand possible claims." Only performers whose work can stand alone, such as Celine Dion's performance for the "Titanic" soundtrack, are entitled to copyright, he argued.
If the opinion is allowed to stand, Katyal contended, it would have harmful repercussions for speech.
"This is a dramatic thing, to allow individuals who have second thoughts or allege mistakes to be able to force takedowns of speech," he said.