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Can Copyright or YouTube Save Cindy Lee Garcia From "Innocence of Muslims" Video Fallout?

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Cindy Lee Garcia is desperate. The actress wants to clear her name and to disassociate herself from the controversial anti-Islam video "Innocence of Muslims," which provoked violent protests in Egypt, Libya, Pakistan, and other parts of the world. Garcia agreed to be a part of the 13-minute video, but she claims the creator Nakoula Basseley Nakoula (aka Sam Bacile) tricked her into being a part of the video by telling her she would be starring in an adventure film Desert Warrior. According to Garcia, Nakoula only gave her a small section of the script and then later dubbed in audio for her character saying, "Is Your Muhammad a child molester?" The audio was not Garcia's voice, she claims -- anyone watching the video probably would agree. But now she says she is the subject of a death threat fatwa from an Egyptian cleric, who called on Muslim youth to kill her and everyone associated with the film.

Federal authorities have already arrested Nakoula, a convicted felon for bank fraud, for violating his probation and making false statements to federal investigators about the video. But others associated with the video who may have been misled by Nakoula have had to fend for themselves in rebuilding their reputations.

Last week, Garcia filed a second lawsuit against YouTube, Google, and the video creator, in order to get YouTube to take down the inflammatory video. Her legal theory is that she is the copyright owner of her scene in the video, and Nakoula's dubbed and edited version of her scene is copyright infringement because she didn't authorize any such editing or dubbing of someone else's words and voice over her own.

If Garcia's account is true, then she deserves our sympathy. It appears that she may be the victim of a fraud, and may have suffered irreparable harm to her professional reputation as a result. The legal question, though, is whether copyright law can provide her the relief she seeks. Unfortunately, here it is doubtful.

In order to have a copyright claim, Garcia must be an "author" of the video footage. It's true she was an actor, but author, probably not. The standard for joint authorship of a film in the United States is biased against actors being able to claim copyrights in the scenes they perform. More likely the copyright goes to the movie studio or the one producing or directing the film. Here, Ninth Circuit precedent in Aalmuhammed v. Lee, 202 F.3d 1227, 1233 (9th Cir. 2000) creates a high standard of (i) the exercise of control over the work and (ii) intent of participants to be considered joint authors that Garcia may not be able to meet.

So is Garcia just out of luck? Perhaps not. California state law recognizes a right of publicity claim based on proof of the following elements: "(1) the defendant's use of the plaintiff's identity; (2) the appropriation of plaintiff's name or likeness to defendant's advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury." [Stewart v. Rolling Stone LLC, 181 Cal. App. 4th 664, 679 (Ct. App. 2010).] The basic idea is that someone else has taken your identity without consent and misappropriated it for the person's own advantage.

Although Garcia didn't raise this claim in her federal complaint (not sure if it was raised in the state complaint, either), Garcia's plight appears to be exactly what right of publicity is supposed to address. It enables people to control the commercial use of their identities in order to protect the economic value they have built up in their names and reputations. If Garcia can prove that Nakoula obtained her participation in the video through fraud, then she would be entitled to a rescission of her agreement with Nakoula, making it void. Likewise, if Nakoula went beyond the terms of what Garcia agreed to in being a part of the video, Nakoula would lack the necessary consent to use Garcia's identity beyond the terms of her consent.

The band No Doubt (with Gwen Stefani) is proceeding to trial on Oct. 15 against the makers of the video game "Band Hero" on a similar theory that "Band Hero" used No Doubt's identity allegedly beyond the consent given in violation of its right of publicity.

But what should YouTube do? Copyright professor Tim Wu has suggested that YouTube needs to have a better, more open and inclusive procedure in place -- such as Wikipedia's community, consensus-driven review or the establishment of a "good citizens" review panel -- to help decide what materials to remove. Sensible ideas, but they probably won't help Garcia right now.

My view is that YouTube should take a second look at the situation. YouTube's Terms of Service for users is broad enough to cover videos allegedly posted in violation of rights of publicity: "You further agree that Content you submit to the Service will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless you have permission from the rightful owner of the material... " If YouTube determines there is sufficient basis to support Garcia's allegations, with Nakoula being afforded an opportunity to respond, then it should consider whether Nakoula's Terms of Service violation warrants removal of the video from YouTube. Although Nakoula's video might not be a copyright violation, it might be violation of YouTube's Terms of Service nonetheless.