Ninth Circuit sitting en banc reverses 2-1 panel decision that required Google to remove anti-Islam video from YouTube based on actor’s claim of copyright in her five-second appearance, holding that “a weak copyright claim cannot justify censorship in the guise of authorship.”

Plaintiff Cindy Lee Garcia was paid approximately $500 for three and a half days of shooting scenes for a low-budget film titled Desert Warrior.Desert Warrior was never released, and plaintiff’s performance was instead included in an anti-Islamic film called Innocence of Muslims. In the trailer for the film, plaintiff’s five-second performance was dubbed over so that it appeared she was asking, “Is your Mohammed a child molester?” The trailer was uploaded to YouTube, and an Egyptian cleric issued a fatwa, calling for the killing of everyone involved with the film. Plaintiff claims she received multiple death threats.

Garcia brought a copyright infringement suit to force Google to removeInnocence of Muslims from YouTube. The district court denied plaintiff’s request for a preliminary injunction. In February 2014, a divided three-judge panel of the Ninth Circuit reversed the district court’s decision and, over a vigorous dissent, ordered the trailer taken down. The court held Garcia was likely to succeed on her claim that the film infringed her copyright in her performance and noted the remaining preliminary injunction factors weighed in her favor. (Read our summary of the panel’s original opinion here.)

In July 2014, the Ninth Circuit panel amended its earlier opinion. The amended opinion maintained the injunction and reaffirmed that, based on the record and arguments before it, Garcia likely had a copyrightable interest in her performance. Nevertheless, the panel went on to state that nothing in the opinion would preclude the district court from finding that plaintiff did not have a copyrightable interest in her performance. The panel acknowledged that, after the panel issued its original opinion, the U.S. Copyright Office denied plaintiff’s request to register a copyright in her performance. The panel held that although the refusal to register Garcia’s performance did not preclude a finding that plaintiff’s performance was copyrightable, the district court was free to defer to the Copyright Office’s reasoning to the extent it was persuasive. (Read our summary of the panel’s amended opinion here.)

On May 18, the Ninth Circuit, sitting en banc, reversed the panel’s amended opinion, affirming the district court’s denial of Garcia’s motion for a mandatory preliminary injunction.

As an initial matter, the court noted that Garcia’s burden on her motion for a preliminary injunction was “doubly demanding,” because the requested injunction required that Google take the “affirmative action” of removing—and continuing to remove—the video from YouTube and its other sites. To prevail, Garcia must establish “that the law and factsclearly favor her position, not simply that she is likely to succeed.”

Setting the central question as whether the law and facts clearly favored Garcia’s copyright claim in her five-second acting appearance inInnocence of Muslims, the court answered in the negative, likening plaintiff’s copyright theory to “copyright cherry picking.” The Ninth Circuit credited the expert opinion issued by the Copyright Office that declined to register Garcia’s copyright in her performance separately from the motion picture. In its opinion, the Copyright Office explained that the office’s “longstanding practices” do not permit an individual actor to copyright his or her performance within a motion picture—instead, for copyright registration purposes, a motion picture constitutes “a single integrated work.” The court reasoned that “splintering a movie into many different ‘works’ even in the absence of an independent fixation,” as Garcia’s theory required, would result in a legal morass and, as Google put it, “make[] Swiss cheese of copyrights.” The court also noted another statutory barrier to Garcia’s copyright claim—that fixation must be made “by or under the authority of the author,” and pointed out that Garcia did not herself fix her acting performance in a tangible medium of expression.

Garcia also failed to satisfy her burden to show she would suffer irreparable harm in the absence of an injunction. The panel below concluded Garcia established irreparable harm on the basis of the death threats made against her, but the en banc court disagreed, observing that Garcia sought an injunction under copyright law—not privacy, false light, or some other tort theory—and that there was a “mismatch” between Garcia’s substantive copyright claim and the dangers she sought to remedy via an injunction. The harm Garcia claimed must stem from copyright and, more specifically, her “legal interests as an author.” Emphasizing that it did not take the threats against Garcia lightly, the court concluded that such harms were “untethered from—and incompatible with—copyright and copyright’s function as the engine of expression.” The Ninth Circuit also observed that Garcia waited several months after Innocence of Muslims was posted to YouTube before seeking an injunction.

The court dissolved the panel’s injunction, holding that it “gave short shrift” to the First Amendment interests at stake, “censored and suppressed a politically significant film [] based upon a dubious and unprecedented theory of copyright,” and constituted “a classic prior restraint of speech.”

Judge Paul J. Watford concurred in the judgment, noting that he would have affirmed the district court’s denial of Garcia’s motion based solely on the absence of irreparable harm—without reaching the substantive copyright law issues. But Judge Watford also disagreed with the majority’s reasoning that death threats do not constitute irreparable harm in the copyright context. According to Judge Watford, however, Garcia would not be able to show a causal connection between the injury she faced and the conduct she sought to enjoin, because the threat to her safety would remain whether or not the video was removed from YouTube (as the video would nevertheless remain on the Internet in general, and an injunction was unlikely to result in the fatwa being lifted).

In dissent, Judge Alex Kozinski, the author of the underlying panel opinion, reasserted his belief that Garcia’s performance met the requirements for copyright protection, opining that the majority opinion “makes a total mess of copyright law, right here in the Hollywood Circuit.” Judge Kozinski urged that “a performer need not operate the recording equipment to be an author of his own performance,” and that the solution for “Swiss cheese” copyright is not for the courts to limit acquisition of copyrights, but for the parties “to allocate their rights by contract.” Finally, Judge Kozinski said he believed Garcia made an “ample” showing of irreparable harm, as “[i]t’s her life that’s at stake.”