Garcia v. Nakoula [1]

This case concerns the "Innocence of Muslims [2]" video, which portrays the Prophet Muhammad in a highly offensive light and caused protests throughout the world in the fall of 2012.

Cindy Lee Garcia was an actress who appeared in the film. According to the complaint [3] filed on September 19, 2012, Garcia was never informed during the production of the movie of the offensive and inflammatory nature of the film. According to the complaint, "Plaintiff was unaware of the vile content contained in the Film, as the content and overall purpose of the Film was concealed from them at all times . . . ." The complaint further claims that Garcia has received death threats because of the film, was fired from her job, and has been informed by her family that she is no longer permitted to see her grandchildren.

The complaint alleges invasion of privacy under the California Constitution, false light, violation of California's right of publicity statute [4], violation of California's unfair competition law [5], and intentional infliction of emotional distress. As against defendant Nakoula and 50 doe defendants allegedly associated with Nakoula, Garcia also alleges fraud and slander. Garcia also sought a temporary restraining order blocking distribution of the film.

On September 20, 2012, the California Superior Court for Los Angeles County denied the temporary restraining order [6], finding a lack of likely success on the merits.

According to the docket [7] (search for case BC492358) plaintiff Garcia filed a request for dismissal without prejudice, which was granted on September 25, 2012.

Update:

On September 26, 2012, Garcia filed a federal complaint [8] in the United States District Court for the Central District of California, re-alleging fraud, unfair business practices, libel, and intentional infliction of emotional distress against defendant Nakoula and the doe defendants allegedly associated with Nakoula. Garcia also alleges copyright infringement as against all defendants, claiming that Nakoula's contract never addressed copyright ownership, and her performance in the film vested her with a copyright interest in the film. Garcia notes in the complaint that she filed five DMCA "takedown" notices to YouTube on September 24th and 25th, which were not acted upon by the time of the complaint's filing.

On October 17, 2012, Garcia filed an application for a temporary restraining order [9] to take down the video on YouTube. Garcia again argued that her performance was independently copyrightable from the Innocence of Muslims film, and that neither Nakoula nor YouTube had a license to use the performance. Garcia cites the recently-signed WIPO Audiovisual Performances Treaty [10] for this proposition (which is currently in the ratification process) and statements made by the United States Patent and Trademark Office suggesting that actors are currently treated as authors under copyright law. Garcia filed a request for judicial notice [11] with the statements from the USPTO.

On October 18, 2012 the court issued a minute order [12] on Garcia's application, rejecting an ex parte ruling on the injunction and transforming the application to a motion for a preliminary injunction. The court ordered any opposition briefs from the defendants to be filed by October 29, and a reply filed by November 5, before a hearing scheduled for November 19, 2012.

On October 19, 2012, Occupy Los Angeles moved to intervene [13] in the case, in support of the plaintiff. The court denied this motion [14]in a minute order on November 15th.

On October 29, 2012, Google and YouTube filed an opposition brief against a preliminary injunction [15]. Google and YouTube argued that Garcia's brief appearance in the film does not vest her with any copyright interest, and that the lawsuit is a plain attempt to censor the video because of its offensiveness. Google and YouTube also filed an opposition to the request for judicial notice [16] of certain factual circumstances around the film and the USPTO's opinions regarding the WIPO treaty.

On November 5, 2012, Garcia filed a reply to Google and YouTube's opposition [17] to the preliminary injunction. Garcia argued that denial of authorship rights to actors in films contravenes the custom and practice of the film industry, and that First Amendment concerns should not be addressed, due to lack of state action.

On November 28, 2012, Timothy Alger, attorney for defendants Google and YouTube, filed a declaration [18] wherein he stated that he had obtained a copy of a copyright and likeness release filled out by Garcia in relation to this film, which assigns any copyright interest in her performance to Nakoula. After Garcia's attorney expressed doubts as to the authenticity of this document, Alger went to Nakoula (who is referred to in this document by his alternative name, "Mark Basseley Youssef") who signed his own declaration [19] stating that Garcia signed this release.

On November 29, 2012, Garcia filed a request to cross examine [20] both Nakoula and Alger. Google and YouTube filed an opposition [21] to this request on November 30th. The court denied the request [22] to cross examine on the same day, noting that the declarations would not be used for disposition of the pending motion for preliminary injunction. On the same day Garcia filed a request to strike [23] the two declarations, accompanied by a declaration [24] by James Blanco, a handwriting analyst, who concluded based on comparison of specimen handwriting samples that Garcia is not the person who signed the copyright and personality release.

Also on November 30th, the court issued a minute order [25] denying the motion for a preliminary injunction. The court found that Garcia was unlikely to be able to prove success on the merits of her copyright claim, as the Ninth Circuit case Aalmuhammed v. Lee [26] would suggest that she should not be considered the author of the final film, and to the extent that a copyright interest could be found in the performance it is likely that Garcia gave Nakoula an implied license under the Ninth Circuit case Effects Associates v. Cohen [27].

On December 21, 2012, Garcia filed a notice of appeal [28] of the preliminary injunction ruling to the Ninth Circuit. The Ninth Circuit's scheduling order [29] has appellant briefs due January 18, 2013, with appellee's brief due February 15, 2013, or 28 days after service of the appellant's brief.