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Freedom of Expression: Copyright

Controversial film "Innocence of Muslims" has Google in court
Controversial film "Innocence of Muslims" has Google in court
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It is an interesting case: Garcia vs. Google Inc et al., 9th U.S. Circuit Court of Appeals, No. 12-57302. Google, megacorporate owner of YouTube, has been ordered to remove from the YouTube library an anti-Islamic video entitled "Innocence of Muslims", not because it is offensive to Mohammedans nor because it sparked protests across the Islamic world, but because it violates the rights of one of the actresses in the film.

The actress, Cindy Lee Garcia, claims that she has a copyright interest in her own performance. That seems wrong on its face--an actor's contribution to a movie is a work for hire, and unless the contract says otherwise the payment received for the performance fully compensates him for his work. The performance belongs to the film company. They can edit it, include it in clips, and use it as they choose with no further permission or compensation. However, there are wrinkles in this case.

The first wrinkle is that Garcia was not hired to make this movie; she was hired to be part of some other movie that was never finished. Her performance sufficiently impressed the filmmakers (and perhaps they were on a tight enough budget) that they took the unused part and released it in a different movie. That stretches their rights of ownership a bit. It means she appears in a film for which she was not compensated, completely unrelated to the film for which she was hired. This isn't something like That's Entertainment, in which the audience is told from what film the clip comes; it is more like Dead Men Don't Wear Plaid, in which scenes from other movies are spliced into this one to create a story--but that those actors were all dead and those films all released, and this performance appears to be unique to this movie.

Additionally, Garcia claims that the scene is dubbed: those were not her lines, and she never said those things. Yet should that matter? Dialogue in movies is often dubbed; modern movie production usually has the actors record their voices separately from performing the roles, and then syncs the words to the images. Sometimes voice actors are hired to replace lines in a theatrical release which are inappropriate for television audiences, or to create a foreign language version of the film. All of this is part of the expectations of the actors.

Her best argument would seem to be that they used her image and acting in a film for which she was not under contract, and so they owe her for this. But then, who wronged her? It was not Google--their policy allows legitimately produced films to be posted to their site, and they would be discriminating against the producers were they to deny access for this film. Her claim is against the people who made the movie, primarily Nakoula Basseley Nakoula; they are the ones who allegedly used her image without her permission. She can sue them; she can ask for an injunction requiring them to withdraw all copies of the film. To order Google to remove the video is censorship; Google did nothing illegal or negligent in allowing it to be posted.

It should not matter that an actress is shown speaking lines she never spoke which someone finds objectionable; after all, even had she spoken them herself, they would still be what is called "acting", which means they are the words given to her by a writer, and they might not even be the opinion of the writer. In this case, though, it apparently does matter--extremists who lack the ability to distinguish between an actress and a character have threatened the actress for what her character says in the film. Certainly the film is offensive to Muslims; it is not the fault of the actress. Nor is the fact that it is offensive to Muslims a valid reason for censorship--most of our movies and our television shows are offensive to Muslims, and indeed to conservative Christians and Orthodox Jews. Once we allow censorship based on the fact that something offends, we are headed for the world of Ray Bradbury's vision. Google is right; she has no claim against them, whatever the dangers to her.

That the decision by the typically liberal 9th Circuit court was two-to-one says that someone agrees with that.