The Ninth Circuit overturned a controversial ruling from one of its own panels in a case involving the 2012 short film Innocence of Muslims. The en banc panel dissolved the earlier three-judge panel’s amended takedown injunction.
Central to the court’s opinion was the issue of whether the contribution of Garcia, an actor in the film, qualified as a “work” under copyright law and thus allowed her status as a joint author of the film. The court said that “Garcia’s theory of copyright law would result in…splintering a movie into many different “works,” thereby making “Swiss cheese of copyrights.” Citing examples such as the 20,000 extras in the Lord of the Rings trilogy and the 125,000 person cast of Ben-Hur, the court reasoned that “treating every acting performance as an independent work would not only be a logistical and financial nightmare, it would turn cast of thousands into a new mantra: copyright of thousands.”
Notably, the judge behind the original Ninth Circuit opinion, Alex Kozinski, wrote in dissent that Garcia’s dramatic performance in the film met all of the requirements for copyright protection and that she had shown irreparable harm to justify an injunction and takedown of the movie from Youtube.