The Ninth Circuit, sitting en banc, dissolved an injunction barring YouTube from showing a highly controversial short film called “The Innocence of Muslims.”

The film was produced by Naloula Basseley Nakoula (now known as Mark Basseley Youssef), an Egyptian-born Coptic Christian. Its online release led to riots and more than 50 deaths around the world.

As we discussed in this blog, in 2014 the Ninth Circuit ordered YouTube (owned by Google) to remove the 14 minute film from its site.

This remedy had been sought by Cindy Lee Garcia, an actress who appeared in the film for only about five seconds. The dialogue in the script she had performed had been dubbed over with a line highly offensive to Muslims, without her knowledge or consent, and she had received death threats as a result.

Copyright Cherry Picking

Judge M. Margaret McKeown wrote in the new opinion:

In this case, a heartfelt plea for personal protection is juxtaposed with the limits of copyright law and fundamental principles of free speech. The appeal teaches a simple lesson—a weak copyright claim cannot justify censorship in the guise of authorship….

Garcia’s theory can be likened to “copyright cherry picking,” which would enable any contributor from a costume designer down to an extra or best boy to claim copyright in random bits and pieces of a unitary motion picture without satisfying the requirements of the Copyright Act.

Judge Kozinski, who wrote the original opinion ordering removal of the clip, dissented, saying:

The majority is wrong and makes a total mess of copyright law… I won’t be a party to it. Youssef handed Garcia a script. Garcia performed it. Youssef recorded Garcia’s performance on video and saved the clip. Until today, I understood that the rights in such a performance are determined according to elementary copyright principles… Garcia’s performance met these minimal requirements….

The case is Garcia v. Google.


The 9th Circuit overturned a decision seen as extremely problematic for the movie industry, particularly for smaller production companies.

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Photo Attribution: “Youtube” by Oejitv – Own work. Licensed under CC BY-SA 4.0 via Wikimedia Commons.

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