After an en banc review, the Ninth Circuit reversed a preliminary injunction against YouTube requiring the takedown of the controversial trailer of the film “Innocence of Muslims.” The preliminary injunction was granted by a 2014 panel decision after the actress Cindy Lee Garcia received numerous violent threats, causing her to fear for her safety.See Cindy Lee Garcia v. Google Inc. et al., Case No. 12-57302A (9th Cir. May 18, 2015).  

Garcia agreed to appear in a film called “Desert Warrior,” produced by Mark Basseley Youssef. Her role was touted as a performance in an action and adventure movie, without religious context. In post-production, however, the footage featuring Garcia was dubbed over and used as part of a fourteen-minute anti-Islamic trailer that was subsequently posted on YouTube.

After the trailer’s release, which was later linked to violent protests and a fatwa against all participants, Garcia received several personal death threats. Garcia subsequently filed a complaint for copyright infringement of her performance and requested a preliminary injunction to remove the video. The district court denied Garcia’s request, arguing that she did not meet the basic copyright requirements of authorship and fixation and that she could not establish irreparable harm. In February 2014, a Ninth Circuit Court of Appeals panel decided to “err on the side of life” by granting Garcia’s injunction and removing the trailer from YouTube. The Appeals Court reasoned that Garcia did hold a valid copyright in her performance (which was only five seconds long and included two lines of dialogue). 

The Ninth Circuit’s decision appeared to provide Garcia with an independent interest in her performance and expand the scope of copyright law into areas typically reserved for protections provided by privacy, tort, defamation, breach of contract or right of publicity claims. Many critics believed that the Ninth Circuit was forcing an immediate legal remedy not based in copyright law, but in concern for Garcia’s wellbeing. 

Google challenged the decision. In the May 18, 2015 opinion, Judge McKeown, writing for the majority, expressed sympathy for Garcia’s “heartfelt plea for personal protection [which] is juxtaposed with the limits of copyright law and fundamental principles of free speech,” but ultimately agreed with the district court’s reasoning as well as the Copyright Office, which had previously rejected Garcia’s copyright registration. Allowing Garcia, or any individual actor to establish independent authorship in a performance or movie appearance would, the Court said, “make Swiss Cheese of copyright” by “splintering” the larger work. The Ninth Circuit found that in addition to authorship, Garcia failed to establish the statutory requirement of fixation of the performance in a tangible medium, which was done by Youssef and his production team. Further, Garcia was unable to establish irreparable harm within the context of copyright law because Garcia’s emotional and potentially physical harm was too attenuated and unrelated to the rights of a copyright author to qualify. 

The decision realigns the Ninth Circuit with the proposition that an actor is unable to claim original authorship in an individual performance that is part of a larger work, while highlighting the inability for copyright law to act as a limit on free speech. Even if a work is controversial and created under false pretenses, other legal claims will provide a more comprehensive remedy. In the words of Judge McKeown, “the appeal teaches a simple lesson—a weak copyright claim cannot justify censorship in the guise of authorship.”