Google has been allowed by a court to keep a controversial film trailer that mocks the Prophet Muhammad on YouTube, but the video has to be scrubbed to remove the performance of actress Cindy Lee Garcia, who claims infringement of her copyright.
The U.S. Court of Appeals for the Ninth Circuit upheld its earlier order, asking Google to take down and prevent new uploads of the trailer, but did not preclude the posting or display of any version of 'Innocence of Muslims' that does not include Garcia's performance.
The court had earlier ruled that YouTube should take down the controversial video which sparked off protests in a number of countries in 2012. Garcia had argued that the video would cause her irreparable harm if there wasn't an injunction on it, as she was subject to death threats.
Google last week asked the court to allow it to retain the trailer online until the disposition of its upcoming petition for a full-court rehearing of the earlier decision.
The company had said in its filing that it has complied with the court's order to take down the trailer, "but in light of the intense public interest in and debate surrounding the video, the video should remain accessible while Google seeks further review."
Google, YouTube, and the public would suffer irreparable harm to their First Amendment and other constitutional freedoms if the company was not immediately granted a stay on the order, it said in the filing.
"Protected speech on a matter of broad public interest is undoubtedly being gagged, because the panel has suppressed the entire trailer, even though Garcia only claims to hold a copyright in the five seconds where she appeared," it said.
Google and Garcia's counsel could not be immediately reached for comment.
The appeal is the latest in a long-standing bid by Garcia to get Google to take down the YouTube video which she said included a performance by her for another movie that wasn't released, and was dubbed over to include offensive remarks about the Prophet.
Garcia has alleged previously that she was cast in a film titled "Desert Warrior" and that defendant Nakoula Basseley Nakoula, also known as Sam Bacile, a resident of Los Angeles county, told her it was an adventure film about ancient Egyptians. Instead, Garcia's scene was used in an anti-Islamic film titled "Innocence of Muslims," according to court records.
In a petition in 2012 before the U.S. District Court for the Central District of California, Garcia stated that she had not assigned the rights to the copyrighted work to anyone, and was asking YouTube to remove the video as its copyright holder. The plea for an injunction was rejected, leading to the appeal.
Garcia does not claim copyright interest in the trailer, but claims that her performance within the film is independently copyrightable and that she retained an interest in that copyright, the appeals court ruled in a 2-1 decision.
Google, in contrast, claimed that an acting performance like Garcia's cannot be copyrighted and that the Copyright Act makes a distinction between a copyrightable work and its performance. The majority decision by the court can throw up situations where bit performers could under certain conditions have the authority to demand the removal of YouTube videos, it said.
"Most of the millions of amateur filmmakers who upload their videos and other creative works to YouTube presumably do not have written agreements with those who appear in their videos," Google said in the filing. "That means anyone who appears in those videos--even for five seconds--will now have independent authority to contact YouTube and demand their removal."
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