SAN FRANCISCO — In a ruling that a dissenting judge called "unprecedented," a federal appeals court ordered
Google said it would appeal the ruling, but removed the video, "Innocence of Muslims," from YouTube and other platforms. The video has incited violent Muslim protests and has been banned by several Muslim countries.
The 2 to 1 decision by the 9th U.S. Circuit Court of Appeals said the actress who appeared in the film never consented to being in it and her performance may be protected by copyright law.
"While answering a casting call for a low-budget amateur film doesn't often lead to stardom, it also rarely turns an aspiring actress into the subject of a fatwa," Chief Judge Alex Kozinski wrote for the majority. "But that's exactly what happened to Cindy Lee Garcia when she agreed to act in a film with the working title 'Desert Warrior.' "
"Desert Warrior," which was supposed to be an adventure film, never materialized. But the performance Garcia gave for it was included in "Innocence of Muslims." Garcia said her voice was dubbed over to make an anti-Muslim remark, and she has had to hide because of continuing threats on her life.
"Here, the problem isn't that 'Innocence of Muslims' is not an Arabian adventure movie: It's that the film isn't intended to entertain at all," Kozinski wrote. "The film differs so radically from anything Garcia could have imagined when she was cast that it can't possibly be authorized by any implied license she granted."
The video was released a year and a half ago and has been widely disseminated on the Internet. Even with Google's action, it is likely to be easily accessible on the web, analysts said.
Santa Clara University law professor Eric Goldman said the ruling could empower anyone who appears in a video without their signed consent to demand it be taken down.
"The 1st Amendment implications of this ruling are horrible," said Goldman, an expert on Internet law.
In a dissent, Judge N. Randy Smith called the decision "unprecedented" and argued the public has a strong interest in constitutional guarantees of free speech.
"An actress's performance in a film is more like the personal act of singing a song" than a set of works copyrighted by an author, he said. "As a result, it does not seem copyrightable."
The court said that Mark Basseley Youssef — who also uses the names Nakoula Basseley Nakoula and Sam Bacile — wrote and produced the film and paid Garcia $500 for 31/2 days of work.
"A clear sign that Youssef exceeded the bounds of any license is that he lied to Garcia in order to secure her participation, and she agreed to perform in reliance on that lie," Kozinski wrote. "Youssef's fraud alone is likely enough to void any agreement he had with Garcia."
A trial judge had refused Garcia's request for a preliminary injunction against Google's dissemination of the video. Google argued such an order would be a prior restraint in violation of the 1st Amendment. But the appeals court noted that the 1st Amendment does not protect against copyright infringement.
The majority stressed it was not holding that every actor has a copyright protection to his or her performance. Situations like Garcia's will be "extraordinarily rare," the court said.
A spokesman for Google said the company will appeal the ruling to a larger panel of the 9th Circuit. The spokesman said the video on YouTube was a 14-minute trailer in which Garcia appeared for only five seconds.
"We strongly disagree with this ruling and will fight it," the spokesman said.
Foreign courts have forced Google to remove the video from platforms accessible in their regions, including the Middle East and Indonesia, citing the laws of their countries. But a Google spokeswoman said no court has previously cited a copyright claim.
The 9th Circuit issued its order against Google last week but did not allow it to be made public until Wednesday's ruling. Google asked the panel to put the order on hold pending appeal, and the panel refused.
M. Cris Armenta, who represented Garcia, said she had made eight requests to YouTube to remove the program.
"The propaganda film differs so radically from anything that Ms. Garcia could have imagined when the director told her that she was being cast in the innocent adventure film 'Desert Warrior,' " Armenta said. "Had she known the true nature of the film, she never would have agreed to participate."
Garcia, in a statement released by her lawyer, said she was grateful for the decision.
She said she has fought "to assure every part of the Muslim community that as a fellow believer in one God, there is no hate in my heart for either the religion of Islam or the people who follow it."