It’s not what you think. In fact, the opinion was written by Alex Kozinski, a famously libertarian-leaning judge who was appointed to the Ninth Circuit by Reagan. The question wasn’t whether the film is defamatory or a species of “fighting words” unprotected by the First Amendment (although Kozinski does, in fact, use that exact term at one point in its colloquial sense to describe the film’s offense to Muslims). The question is whether an actor owns a copyright in her performance and whether that copyright is violated if the filmmaker so distorts that performance that it violates the “implied license” she’s granted him to use it on film. It’s an intellectual property rights case, in other words, albeit against a stark First Amendment backdrop.
Google, which could have quietly purged “Innocence of Muslims” long ago to spare itself lots of grief and death threats, fought this all the way. Held: The filmmaker did exceed the implied license he had to use a cast member’s performance in his film. He convinced her she was acting in a completely different movie, then overdubbed her lines in post-production so that he could stick the footage he’d shot into the anti-Mohammed film instead. Essentially, he obtained her copyright to her performance under false pretenses. Take it down, says Kozinski:
“This is a troubling case,” Chief Judge Alex Kozinski wrote. “Garcia was duped into providing an artistic performance that was used in a way she never could have foreseen.”
Garcia sued after she discovered she was in the video, after efforts to persuade Google to take it down from YouTube were repeatedly rebuffed. The actress had been cast in a minor role in a film called “Desert Warrior,” and paid $500 by director Mark Basseley Youssef, but the movie never materialized, according to court papers…
In her suit, Garcia maintained that YouTube’s unrivaled popularity gave the film a broad audience, and that she had a right to get it removed because she had been misled by the director and retained copyright protections to her artistic work.
A key bit from the opinion on the “implied license” a filmmaker enjoys to his cast’s performance. It’s reeeeeeally broad, but not so broad as to include fraud:
How broad is the implied license in cases that don’t involve outright fraud, i.e. in a case where a filmmaker sincerely sets out to make a certain kind of film and then changes his mind midway through? Hard to say, but it probably doesn’t matter. How often will an actor sue to minimize his exposure in a high-profile project by having it taken offline?
There is a dissent, incidentally, beginning on page 19 of the opinion, but that too focuses on property rights more so than the First Amendment. An actor does not in fact have a copyright to her performance, Judge Smith argues, which means Garcia has no cognizable interest in having the film removed from YouTube. I don’t know what practical reason she has, frankly — after 18 months of infamy in the Middle East, the death-threat cake is baked whether the movie stays up or not — but oh well. If the filmmaker’s determined to keep this going, presumably he could edit out Garcia’s scenes and then re-upload it without a problem — unless and until the next cast member sues.