At least the latest legal setback for the inflammatory film Innocence of Muslims won't land the former Orange County resident who made it behind bars (this time).
In a 2-1 decision Wednesday, a panel of the U.S. 9th Circuit Court of Appeals in San Francisco ordered Google to remove from the Internet all copies of the 14-minute, anti-Muslim film.
Actually, the case did not center on convicted con man Mark Nakoula Basseley, a.k.a. Nakoula Basseley Nakoula, a.k.a. Mark Basseley Youssef, a.k.a Sam Bacile (this time). It stemmed from legal action brought by actress Cindy Lee Garcia, who Basseley duped into appearing in the film.
Garcia, who thought she was dealing with a producer named Sam Bacile, agreed to work on a film titled Desert Warrior. That project never materialized, Garcia was paid $500 for 3 1/2 days work and she thought that was that.
But Desert Warrior scenes featuring Garcia were used in Innocence of Muslims. Worse for the actress, anti-Muslim dialogue she never spoke was dubbed in for her character. So while Innocence of Muslims was sparking intense worldwide protests after it went up on YouTube, Garcia found herself the subject of death threats that forced her to leave her home and workplace.
Google argued against a court injunction to remove the film, and a judge agreed. But the appeals panel majority ruled that judge erred. The search engine giant also argued against the injunction on appeal, saying it would be prior restraint of First Amendment rights. But the appellate justices found copyright infringement trumped free speech in this case.
"Garcia's performance was used in a way that she found abhorrent and her appearance in the film subjected her to threats of physical harm and even death," 9th Circuit Chief Judge Alex Kozinski wrote for himself and Judge Ronald M. Gould. "Despite these harms, and despite Garcia's viable copyright claim, Google refused to remove the film from YouTube."
The filmmaker's implied license to use Garcia's performance "wasn't so broad as to cover the use of her performance in any film," Kozinski also wrote. "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 granted."
Also, because chronic liar Basseley lied to Garcia to get her to appear on camera, that constituted fraud, which "alone is likely enough to void any agreement he had with Garcia," according to Kozinski. He noted, "While answering a casting call for a low-budget amateur film doesn't often lead to stardom, it also rarely turns an aspiring actress into the subject of a fatwa."
But dissenting Judge N. Randy Smith said Garcia not only has no rights over a film made by others, but she failed to show how she would be harmed by continued airing of the video.
Google now fears that extras and bit players who appear in popular clips will flood YouTube with take-down demands if settlements are not reached with the filmmakers.
For her part (literally), Garcia, in a statement released by her lawyers, expressed gratitude that the appeals court recognized "the real danger that I have been in since YouTube posted that hateful film."
As the Weekly previously reported, Basseley, who at last work was residing in Cerritos, served 21 months in prison after a 2010 conviction for check fraud, and his parole prohibited him from using computers or the Internet for five years without approval from his probation officer. He went back behind bars in September 2012 for failing to have received permission to use computers and the Internet to spread his movie that demonized Islamic prophet Muhammad. For that, one right-wing blogger claimed Basseley was the only person imprisoned in the aftermath of the organized Sept. 11, 2012, terrorist attack on the U.S. Consulate in Benghazi, Libya.