The great battle against the Innocence of Muslims trailer has finally been won thanks to a ruling by “Cow Sex” Chief Judge Kozinski.
Chief Judge Alex Kozinski of the 9th Circuit Court of Appeals got in trouble for putting up “a photo of naked women on all fours painted to look like cows and a video of a half-dressed man cavorting with a sexually aroused farm animal” on his website, but the moral judge drew the line at videos that offend Muslims writing an absurd opinion that has no basis in copyright law.
Joining the “cow sex” judge in his illegal decision was Clinton judge Ronald M. Gould. Judge N.R. Smith, appointed by President Bush, despite Barbara Boxer’s best efforts, however rightly dissented from the decision, by pointing out that, “the plaintiff did not establish a likelihood that she had a copyrightable interest in her acting performance, nor did she clearly show that the performance was not a work made for hire.”
Judge Alex Kozinski claims that Youssef can’t be considered a filmmaker because he shot a single amateur film, but writing a book or filming a movie is exactly how you become a writer or a filmmaker.
“But if shooting a single amateur film amounts to the regular business of filmmaking, every schmuck with a videocamera becomes a movie mogul,” Kozinski writes trying to claim that amateur filmmakers should have different rules than professional ones.
This distinction is both dangerous and wrong.
Garcia auditioned for a role in a particular film, was paid for her performance and had every reason to believe Youssef would eventually release the film. Without an implied license, the performance for which she was paid would be unusable. Therefore, we agree with Google that Garcia granted Youssef an implied license.
Any such license must be construed broadly. If the scope of an implied license was exceeded merely because a film didn’t meet the ex ante expectation of an actor, that license would be virutally meaningless.
Nevertheless, even a broad implied license isn’t unlimited… Here, the problem isn’t that “Innocence of Muslims” is not an Arabian adventure movie: It’s that the film isn’t intended to entertain at all. The film differs so radically from anything Garcia could have imagined when she was cast that it can’t possibly be authorized by any implied license she
If we take the cow sex judge’s argument at face value, then if a movie is marketed in a different way than the actors can sue for copyright violation. This is plainly absurd since movies change dramatically in the process and in the marketing. Comedies can become dramas and vice versa. Plenty of actors have been completely shocked by the film as it was released because it was different from what they thought they were making.
Something a shmuck like Kosinski would know if he had bothered to do the research.Judge Smith quickly takes the cow sex judge to law school.
The majority opinion omits applying the requisite standard of review that is especially pertinent to Garcia’s requested relief. Mandatory preliminary injunctions, similar to the one issued today, are “particularly disfavored.”…
Given this standard, the majority errs in requiring Google to pull the film from YouTube—at this stage of the litigation.
The district court did not abuse its discretion in concluding that the law and facts did not clearly favor Garcia. Instead, the majority makes new law in this circuit in order to reach the result it seeks. We have never held that an actress’s performance could be copyrightable.
The question is whether Google will appeal. Even if it doesn’t, the decision has all sorts of troubling legal implications for the movie industry that will no doubt lead to further review.