December 17, 2014

'Innocence of Muslims' and What It Means for Documentary Filmmaking

On Monday, eleven federal judges took the bench in Pasadena, CA to hear a copyright case that could have deep and lasting implications for documentary filmmakers everywhere.

At issue is whether anyone who appears in a film production and makes even the slightest creative contribution could have a separate copyright interest in their appearance in the film. Until recently, that question was fairly well-settled: the one who controls the film’s production is the author and owns the copyright in the entire film. But earlier this year, a three-judge panel on the Ninth Circuit court of appeals held differently.

The case concerns actress Cindy Lee Garcia, who appeared for 5 seconds in the notorious anti-Islam film Innocence of Muslims. Garcia’s appearance was partially dubbed over, making it seem that her character was asking, "Is your Mohammed a child molester?" In the ensuing uproar over the film, she received numerous death threats.

Using the Digital Millennium Copyright Act’s notice-and-takedown procedure, Garcia asked Google to remove the film from YouTube—but Google refused, reasoning that she did not own the copyright to the film. She sued, claiming she did own a separate copyright in her 5 seconds on screen, and requested a court order requiring Google to take down the film. The lower court declined Garcia’s request, but in February, a three-judge panel on the court of appeals ruled in her favor. That court held that Garcia has a copyright in her performance in the film. The court then issued an unusually strong injunction, ordering Google to search all of its servers for any instance of the film and to take it down.

For documentary filmmakers, the potential ramifications of this decision are frightening. If everyone who does something creative in a film now has a copyright interest in that contribution distinct from the underlying film, then anyone who appears on screen—or has on past projects—could now come calling, seeking royalties or even an injunction. And as any documentary filmmaker knows, it is both impractical and unrealistic to expect a producer to get releases from every single person who appears in every single shot. Such a rule would price out untold thousands of first-time, amateur, or low-budget filmmakers.

That’s why this spring the IDA teamed up with Film Independent, Morgan Spurlock, and Fredrik Gertten to urge the court of appeals to rehear the case. We assembled a dream team of top-flight lawyers to write a "friend of the court" brief: Lincoln Bandlow, Rom Bar-Nissim, Gary Bostwick, and former IDA Board President Michael Donaldson. Special thanks goes to Gary Bostwick, who carried the laboring oar on drafting the brief.

In our brief, we argued that while Garcia was seriously harmed by someone who recklessly ignored her safety, the remedy she seeks would create crippling uncertainty as to several fundamental concepts that are essential to modern filmmaking. The result, we pointed out, could prevent worldwide audiences in the millions from experiencing new works that advance understanding, insight, and progress. (Read more here)

Fortunately, the court listened to our pleas and those of many others, and agreed to rehear the case. So earlier this month the IDA filed a second amicus brief, and this Monday Michael Donaldson and I were in the courtroom as a panel of eleven Ninth Circuit judges heard lawyers for Google and Ms. Garcia battle it out. Their questions ranged from whether it was appropriate to issue a strong injunction to the very nature of authorship in copyright law. For example, asked one judge, why issue an injunction covering only Google if the film is all over the internet—when “the toothpaste is out of the tube”? Another judge wondered about the Lord of the Rings films. Does Ms. Garcia mean to suggest that “every single person who has a cameo in the battle scenes have a copyright interest in their performance as fixed in the film?” To our horror, the attorney for Garcia answered yes. Her theory would upend a central tenet of copyright law that has anchored American filmmaking for decades: the one who controls the production is the author and holds the copyright—not the extras.

This is a sad case. Ms. Garcia has been grievously harmed, and we sincerely hope she can obtain justice. But there are other remedies for that injustice which do not turn copyright on its head, at grave expense to filmmaking, freedom of speech, and our cultural heritage.

 

Jack Lerner has been a member of the IDA Board of Directors since 2010. He is a Clinical Assistant Professor of Law at the UC Irvine School of Law, where he directs the UCI Intellectual Property, Arts, and Technology Clinic. Together with Donaldson + Callif LLP, the Clinic is representing the IDA and Kartemquin Films in their efforts to renew and modify an exemption to the Digital Millennium Copyright Act that allows documentary filmmakers to extract material from DVDs and online media for fair use purposes.

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