YouTube Not Required to Remove “Innocence of Muslims” Video in Response to Actress’s Takedown Notice

Last week a California federal judge declined to enter a preliminary injunction sought by actress Cindy Lee Garcia, which would have required YouTube to remove the 14-minute anti-Islamic film “Innocence of Muslims” that has sparked deadly protests around the globe in recent months.  Garcia’s complaint for direct and secondary copyright infringement against YouTube and its parent company, Google, alleges that she was fraudulently induced to appear in the “vile and reprehensible” film, and that her originally innocuous lines were dubbed over without her knowledge or consent.

Two days before filing her complaint, Garcia sent YouTube several DMCA takedown notices, asserting copyright ownership, not of the film as a whole, but of her “audio-visual dramatic performance” within the film.  YouTube has not taken the video down in response.  In support of her claim for direct infringement, Garcia contends that YouTube has disabled access to the film in certain countries and has thereby “played an active role” in the film’s distribution, effectively stripping it of DMCA safe harbor.

In her complaint, Garcia alleges that copyright in her performance vested in her, and that she did not transfer copyright in her performance to the film’s creator.  Of course, copyright only exists when a work is fixed in a tangible medium of expression, and Garcia’s performance was fixed only as a part of the larger film created by the producer, cameraperson, etc.  The Court pointed out that “the nature of [Garcia’s asserted] copyright interest is unclear,” given that the film is a “unitary whole” and she did not claim to have joint authorship or joint copyright ownership of the film.   Nevertheless, the Court ultimately sidestepped the issue of copyrightability and determined that “[e]ven if this copyright interest were cognizable and proven, by operation of law Garcia necessarily (if impliedly) would have granted the Film’s author a license to distribute her performance as a contribution incorporated into the indivisible whole of the Film.”  Therefore, the court concluded, without a hearing, that Garcia had not established a likelihood of success on the merits of her copyright infringement claim, and denied the motion for preliminary injunction.

The court also noted that Garcia had waited five months since the video was first posted in early summer before moving for a preliminary injunction.  The court found that this delay undercut her argument that the video’s continuing presence on YouTube would cause her any additional irreparable harm.

Garcia’s complaint also includes claims against the film’s producer for fraud, unfair business practices, libel, and intentional infliction of emotional distress.  She alleges that she has suffered reputational harm, loss of career prospects, and death threats as a result of her unwitting association with the controversial film.  If the court is right that these harms would not be undone by removing the video from YouTube, perhaps the mere act of bringing suit to publicly distance herself from the film has provided Ms. Garcia with a measure of the relief she sought in moving for a preliminary injunction.

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