Last year, the Ninth Circuit stood out amongst fair use decisions in its opinion in Seltzter v. Green Day, particularly in contrast to what has persuasively been dubbed the Second Circuit’s “know it when we see it” approach to transformativeness as annunciated in the Cariou v. Prince decision. By contrast, the potentially destabilizing effect of the Ninth Circuit’s highest profile copyright case in 2014 can scarcely be overstated. Unless and until the full court reverses a three-judge panel in Garcia v. Google, Inc., nearly every motion picture will be in peril of “infringement.” The consequences for the First Amendment and for free expression would be devastating. Although it was not raised, expect fair use to come into play if the decision stands and the case heads back to the trial court. The film is clearly transformative precisely because the plaintiff argues that her performance was unknowingly changed in service of a message she found offensive.

Many will recall the controversy surrounding the 2012 film at issue in Garciathe real-world ramifications of which were deadly. The video first shows what are apparently Christians being attacked, while a presumably Muslim mob destroys a medical clinic, all while the police do nothing. The movies then abruptly purports to retell the life of the prophet Muhammad. People could not even agree if it was a movie, a trailer, or something else. The tragic upshot was that protestors soon converged on American embassies and contemporaneous with the now-infamous and deadly attack on the U.S. Embassy in Benghazi, Libya. As observers noted at the time, the dubbing and lip-synching was so bad, “It is quite possible that the actors had no idea what they were doing.”

And so it turned out to be. Cindy Garcia, one of the actresses in the video, stated publicly that she had no idea what the movie was to turn out to be, and that the Islamophobic audio had been dubbed over whatever she actually said when filming. She also sued, arguing that her performance was an independently copyrightable work, such that the producers needed her permission to distribute and reproduce it. Notably, she sued Google as YouTube’s parent, for failing to take down the video when she asked under the Digital Millennium Copyright Act (DMCA).

The complaint was roundly derided by copyright experts and commentators when it was filed. This reaction was understandable, because it seemed not to pass the elements of a copyright claim. First, to enjoy copyright protection, a work must be an original one fixed in a tangible medium. Even TV broadcasts qualify, and as anyone who has sat until the final credits in a movie, motion pictures do too. The owner of a copyright holds the exclusive right, in relevant part:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; []

17 U.S.C. § 106. So, clearly, whoever owns the copyright to “Innocence of Muslims” owns the right under §106(3) to distribute it (including on the Internet).

But in a collaboration like a motion picture, how are the rights among screenwriter, directors, studios, and actors sorted out? While a screenwriter will typically assign her rights by contract (for which she is paid), what about the rest of the participants? Here, too, the Copyright Act has already addressed this very scenario, in the work-for-hire doctrine.

A “work made for hire” is—

(1) a work prepared by an employee within the scope of his or her employment; or

(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

17 U.S.C. § 101. Garcia was paid for her performance. Small wonder then that the Garcia complaint was met with such derision. There seemed no other plausible analysis but that it was “a part of a motion picture or other audiovisual work.” Right or wrong as a policy matter, it is in the Act, without which the production of motion pictures would be unworkable.

As a procedural matter, Garcia sought an injunction in the District Court, which requires the movant to show not only that she is likely to win the case on the merits, but also that the status quo places a greater burden on her than on the other side. Here, Garcia (understandably) cited the violent reaction to the movie and her fear that she would be targeted for an expression she never gave. Even her attorney’s explanation seemed implicitly to acknowledge that legally speaking she was putting a square peg in a round hole to find a way to protect herself. (“But, the First Amendment does protect American’s [sic] rights to freedom to express, and also the right to be free from expression”). The First Amendment, incidentally, protects no such thing.

What the First Amendment does protect, as sacrosanct as any doctrine of Constitutional law, is a prohibition on prior restraint, that is, an order or law by the government not to speak. (see also Sobchak, Walter, whose understanding of the First Amendment is not very good).

The District Court denied Garcia’s request for a preliminary injunction. On appeal, the Ninth Circuit Panel framed the question not as a joint work, but as whether “a copyright interest in a creative contribution to a work simply disappears because the contributor doesn’t qualify as a joint author of the entire work,” and if so “whether it’s sufficiently creative to be protectable.” Quoting Feist, the seminal case on what constitutes an expressive work (holding that a telephone book does not), the Court of Appeals was concerned only, if an actor’s performance is “fixed” (which of course it is in every single video and motion picture), “it evinces some minimal degree of creativity . . . ‘no matter how crude, humble or obvious’ it might be.”

Having set this straw man up, the Court proceeds easily to knock it down. Under the reasoning of this analysis, there are quite literally dozens of performances in any given movie that would be entitled to an independent copyright.

Answering a question that no one asked, and noting that any actor’s derivative performance of a screenplay would infringe the screenwriter’s copyright (a problem solved in the ordinary course by contract), the court argued “Of course, by hiring Garcia, giving her the script and turning a camera on her, Youssef implicitly granted her a license to perform his screenplay.”

This aside proves just why the decision is so off: “by hiring Garcia.” Garcia’s performance, if it were ever entitled to copyright, is plainly a work for hire, under the terms of the statute and the Court’s own words. The Court waives this off, arguing that Garcia was not a “traditional employee.”

Confirming the confused state of the entire opinion, the Court uses Sinead O’Connor’s cover of Nothing Compares 2 U, for the proposition that a work and a performance can have separate copyrights. Putting aside that O’Connor either had a license, or claimed fair use (or herself would be guilty of infringement), the example is singularly uninstructive. The analogy would have been if O’Connor, claiming a performance right, sought to enjoin Prince, the author. She of course did no such thing.

The opinion does not address the very topic that has come to dominate copyright law, namely fair use. Google probably did not argue fair use because it considered the claim to copyright protection in the first place to be ridiculous. But under any recent precedent, whether Green Day or Prince, the movie is clearly transformative. Indeed, it is the transformation to a message that she finds offensive that is Garcia’s primary complaint. Expect litigation of that issue in the trial court if the decision is not reversed by the full Court of Appeals.

Emergency requests to stay the decision pending further proceedings have now twice been denied. The First Amendment ramifications of the Court’s order that Google immediately take the video down from YouTube are severe; no one will miss this film, but that is precisely the point of the First Amendment: the quality, or offensiveness, of an expressive work is irrelevant to the protection it merits against prior restraint. Particularly where the Court got the copyright analysis so wrong, it is a dangerous precedent.