Fraud, A Weak Copyright Claim, and What Might Have Been: A Brief Examination of Garcia v. Google, Inc.

By Jennifer Davis; Staff Member (Vol. 15)

Cindy Got “Bamboozled”

 When Cindy Garcia responded to a casting call for a film titled Desert Warrior, she did not object to delivering two innocuous seeming lines while “sounding concerned.” She probably would not have objected when in 2012, the director Mark Youssef, translated the film into Arabic, and perhaps she would not even have objected when Youssef changed the name of the film to The Innocence of Muslims.

Cindy did object when the film turned out to be anti-Muslim propaganda. When Youssef uploaded the film to YouTube it sparked outrage. For her small role in the film, Cindy began receiving death threats and a fatwa was issued against her. The media has gone as far as to link The Innocence of Muslims to the attack on Benghazi. As the Ninth Circuit astutely states, Cindy got “bamboozled.”

 Cindy Looks for a Way Out

Youssef repurposed Cindy’s image by changing her words from “Is George crazy? Our daughter is but a child?” to “Is your Mohammed a child molester?”. Cindy first requested that Google, Inc. remove the film from YouTube; she sent five takedown notices citing as “hate speech and [that] violated her state law rights to privacy and to control her likeness.”  Google, Inc. denied her requests. Cindy then filed various tort claims in Los Angeles Superior Court. When her temporary restraining order and preliminary injunction were denied, she dismissed the state court case and the next day filed a complaint against Google, Inc., Youssef, and others involved in the production in the United States District Court for the Central Court of California. Apparently discouraged from the state court’s treatment of her tort claims, Cindy now claimed that she owned the copyright of her role in the film and did not license to Youssef for the anti-Muslim use. The District Court initially denied her injunction, and then on panel review granted it, but ultimately denied it. Cindy then appealed.

In Garcia v. Google, Inc., the Ninth Circuit Court of Appeals affirmed the District Court’s order, finding Cindy did not have a legal copyright for her small role, and in favor of director Youssef’s freedom of expression, denied an injunction directing Google to remove the film from YouTube. The majority opinion held that Cindy’s case “teaches a simple lesson—a weak copyright claim cannot justify censorship in the guise of authorship.” In dicta, the court emphatically  reminded the reading audience that the “Right to Be Forgotten” is not recognized in the United States, although Cindy never attempted to assert the European Union legal doctrine.

In its analysis of the copyright claim, the court insisted that allowing each individual performance involved in the making of a piece of authorship to be copyrighted amounted to “cherry-picking,” and was not the congressional intent of the Copyright Act. The court cited copyright precedent and the expert advice of the U.S. Copyright Office. The court also determined that the relief Cindy sought, was not found under Copyright Law; the damage caused by the film had been done and having the film removed from YouTube would not likely get the fatwa against Cindy removed. Finally the majority cites the Supreme Court saying that copyright is not “categorically immune from challenges under the First Amendment.” This too seems to be the court going on the offense since they did not even find a copyright law to challenge with the First Amendment.

It is worth noting that first panel review by the California District Court found that the copyright claim had merit and that Youssef implicitly granted Cindy a license to perform in his film, as opposed to the panels ultimate factual finding that it was Cindy who granted an implied license to Youssef. Furthermore, the Ninth Circuit’s Judge Kozinski, in his dissent, found the majority “made a total mess of copyright law” because “under our copyright law, the creators of original, copyrightable material automatically acquire a copyright interest in the material as soon as it is fixed.” Even with this small support, one has to question why Cindy chose not to join her tort and contract claims with her federal copyright claim.

The majority opinion suggests that Cindy could have gained more traction under “privacy, fraud, false light or any other tort-based cause of action.” The facts show a good case of fraudulent misrepresentation. Youssef falsely represented the film project and Cindy relied on his representation and then suffered harm by that misrepresentation. More facts would be necessary to show that Youssef acted with knowledge or reckless disregard that the representation was false and that he made the representation for the purpose of inducing Cindy into participating in the film. One fact Cindy has on her side is that the original movie was never made, as opposed to it being made and then later changed.

Cindy may have shorthanded herself by not bringing the fraud claim. Although it is debatable whether the Ninth Circuit would have analyzed any claim outside of the context of the First Amendment, it seemed completely unwilling to “deprive[ ] the public of the ability to view firsthand, and judge for themselves, a film at the center of an international uproar.”