A young actress agreed to appear in a low-budget, Middle Eastern themed action film. The producer re-cut and over-dubbed the video, which included five seconds of the actress’ performance, fashioning it into “Innocence of Muslims,” an anti-Islamic screed, which portrayed the Prophet Mohammed in an exceedingly offensive way. When the producer uploaded his video to YouTube, there were violent protests throughout the Middle-East. An Egyptian cleric issued a fatwa calling for the deaths of everyone involved in the video, including the actress. The actress sued the producer and Google, seeking an order to take down the video.

THE TRIAL COURTS DENY THE ACTRESS’ MOTION FOR TAKEDOWN ORDERS

The actress sued the producer and Google, YouTube’s owner, in California Superior Court, alleging, inter alia, copyright infringement and sought an immediate take down order. The actress claimed that she owned the copyright to her performance and that the producer and Google violated that copyright. When the state court denied her motion for an injunction, she dismissed her state court action and filed a similar action in the U.S. District Court for the Central District of California, whose jurisdiction includes Hollywood. The District Court also denied the actress’ motion for a takedown order, finding (a) that she was unlikely to succeed on the merits because her copyright claims were unclear (since she had granted the producer an implied license to distribute her performance as part of the video) and (b) that the risk of irreparable harm had diminished since the video had been on the internet for five months.

9TH CIRCUIT PANEL GRANTS TAKEDOWN ORDER, BAD FILM MAKES BAD LAW

The actress appealed, and Justice Kozinski, writing for a divided panel of three justices from the 9th Circuit, found the district court abused its discretion and remanded the case back to the district court with clear guidance to grant the motion, even though the Court described the actress’ copyright claims as “debatable.”

The Court conceded that, even if the actress were to “complain that the film has a different title, that its historical depictions are inaccurate, that her scene is poorly edited or that the quality of the film isn’t as she imagined, she wouldn’t have a viable claim that her implied license had been exceeded.” But, in a statement reflecting subjectivity and jurisprudential gymnastics echoing Justice’s Stewart’s famous “I’ll know it when I see it” standard, the Court opined that her implied license was violated because the “the film isn’t intended to entertain at all.” The Court cited as evidence the fact that the producer lied to the actress regarding the nature of the film, which illustrates the Court’s extraordinary naiveté regarding the inner workings of Hollywood; it’s a rare exception when a finished film resembles the initial vision. The Court further disagreed with the lower court on the question of irreparable harm. Even though the actress’ name and photograph had been publicized and the fatwa had already issued, the Court concluded that the risk would reduce if Google took down the video. The Court rejected Google’s assertion that a takedown order was unconstitutional restraint of speech under the First Amendment.

THE 9TH CIRCUIT ORDER EN BANC REVIEWS AND REVERSES THE PANEL, REINSTATING THE DISTRICT COURT’S DENIAL OF THE INJUNCTION

The full 9th Circuit, sitting en banc, reversed the panel’s decision.

STRIKE ONE-ACTRESS’ PERFORMANCE NOT COPYRIGHTABLE

9th Circuit En Banc found that the actress’ performance was not the proper subject of copyright, noting that the Copyright Office generally refuses to copyright actors’ performances in motion pictures and had refused the actress’ application here, and that, while the producer had “fixed” her performance in a tangible medium (film), she had failed to do so.

STRIKE TWO-LACK OF NEXUS BETWEEN COPYRIGHT INFRINGEMENT AND IRREPARABLE HARM

The Court recognized the seriousness of the fatwa, but noted the “mismatch between her substantive copyright claim and the dangers she hopes to remedy….” The Court likened this to a prior case where wrestler Hulk Hogan sought to prevent the posting of a sex tape under a copyright infringement theory. Hulk Hogan lost because any irreparable harm flowed from the private nature of the video’s content and not from any “irreparable harm in the copyright sense.” The Court also agreed with the District Court’s finding that the actress’ delay in seeking relief undercut her claim for emergency relief.

STRIKE THREE-THE 9TH CIRCUIT PANEL’S ORDER “GAVE SHORT SHRIFT TO THE FIRST AMENDMENT”

Finally, the 9th Circuit’s En Banc decision admonished the panel for ignoring the “First Amendment values at stake. The mandatory injunction censored and suppressed a politically significant film-based upon a dubious and unprecedented theory of copyright.” Citing Supreme Court precedent that copyright claims are not “categorically immune from challenges under the First Amendment,” the Court held that “Prior restraints pose the ‘most serious and least tolerable infringement on First Amendment rights’ and [the actress] cannot overcome the historical and heavy presumption against such restraints with a thin copyright claim in a five-second performance.”

DISSENT-ACTRESS’ PERFORMANCE IS COPYRIGHTABLE

In a dissent that is bound to launch a thousand law review articles, Justice Kozinski accused that majority of making “a total mess of copyright law, right here in the Hollywood Circuit.” In an argument that echoes the “when does human life begin” debate, Justice Kozinski argued that the majority erred in holding that only the final film is subject to copyright, when, in fact, each “contribution to a movie can be copyrightable (and thus can be a ‘work’).”