An appeals court in the U.S. has ruled that YouTube should take down the controversial “Innocence of Muslims” video that sparked off violence in many countries in 2012, reversing a district court’s denial of an injunction against the video sharing site and and its owner Google.
In a 2-1 decision, the U.S. Court of Appeals for the Ninth Circuit ruled that the actress shown in the movie trailer, Cindy Lee Garcia, had established the likelihood “that irreparable harm would result if an injunction did not issue because she was subject to death threats and took action as soon as she began receiving the threats.”
Garcia also established “sufficient causal connection” between the infringement of her copyright and the harm she alleged, the court said.
The anti-Islam movie trailer led to protests in 2012 at U.S. embassies and consulates in various countries including Egypt, Yemen, Sudan, Indonesia, Afghanistan and Pakistan.
Google blocked the trailer of the movie in some countries because of the sensitive situations in two of them, while in other cases bowing to local regulations.
In the U.S., the company argued that issuing a preliminary injunction based on the information provided by Garcia may constitute a prior restraint of speech under the First Amendment to the U.S. Constitution.
“But the First Amendment doesn’t protect copyright infringement,” Chief Judge Alex Kozinski wrote in his opinion released Wednesday. “Because Garcia has demonstrated a likelihood of success on her claim that ‘Innocence of Muslims’ infringes her copyright, Google’s argument fails.”
Google could not be immediately reached for comment.
A secret order was issued by the court on Feb 19 in advance of the opinion to prevent a “rush to copy and proliferate the film” before Google could comply with the order.
In a complaint filed in September 2012 before the Superior Court of the State of California for the county of Los Angeles, Garcia alleged that she was cast in a film titled “Desert Warrior” and that defendant Nakoula Basseley Nakoula, also known as Sam Bacile, a resident of Los Angeles county, told her that it was an adventure film about ancient Egyptians.
Garcia named Nakoula, Google, YouTube, and some as yet unnamed persons as defendants in the suit in which she claimed invasion of privacy, misappropriation of her likeness, fraud, and unfair business practices. She said that after the film was published on YouTube she had received death threats, was fired from her job, and was not permitted by her family to see her grandchildren, fearing for their safety.
Bacile was alleged to have published in July 2012 on YouTube a video entitled “The Innocence of Muslims,” which had its soundtrack manipulated to make it appear that Garcia was slandering Islam and Muslim beliefs.(
The judge in California refused to issue a temporary restraining order on YouTube to pull down the trailer.
Changing tack, Garcia filed a petition before the U.S. District Court for the Central District of California, stating that she had not assigned the rights to the copyrighted work to anyone, and was asking YouTube to remove the video as its copyright holder. The plea for injunction was rejected, leading to the appeal.
Garcia does not claim copyright interest in the trailer, but claims that her performance within the film is independently copyrightable and that she retained an interest in that copyright, the appeals court observed Wednesday. Google argued that Garcia’s performance was a work made for hire or, alternatively, that she granted the producer an implied license to use her performance in “Innocence of Muslims.”
M. Cris Armenta, Garcia’s lawyer, described the appeals court ruling as a “David versus Goliath victory.” In a statement, Garcia said she was a strong believer and supporter of the First Amendment and has “the right not to be associated with this hateful speech against my will.”