Fresh on the heels of accepting en banc review of the appeal over the constitutionality of the California Resale Royalties Act, the Ninth Circuit Court of Appeals has decided to rehear Google’s appeal of the injunction against it after actress Cindy Lee Garcia claimed a protectable copyright in her performance of “Innocence of Muslims.” While, as before, one should hesitate to read too much into the mere fact of en banc review, the three-judge panel under review now stands a good chance of being overturned (as it should).

In March of this year, a three-judge panel ruled that an actress in “Innocence of Muslims” was likely to prevail on her claim that she had an independently copyrightable performance distinct from the movie itself. Despite being widely derided by copyright experts when she filed it, Garcia successfully appealed the District Court’s denial of a preliminary injunction, meaning that Google and YouTube had to remove the video affirmatively from public availability. The director was also sued, but Google was targeted primarily because of the film’s availability on YouTube. Thereafter, the Ninth Circuit solicited input on whether it should rehear the case before all judges in the circuit (“en banc”), which it has now decided to do. A similar case was filed recently, which will most certainly be affected buy this development. 

The controversy (over the decision, not the original movie) broke down along a few different lines. First, the work seemed almost certainly to be one for hire under a specific provision of the Copyright Act for motion pictures (17 U.S.C. § 101 says that “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”). In that event, even if Garcia’s performance were independently protectable, the hiring entity would trump her rights. 

Second, the remedy of an injunction brought the First Amendment into focus. Compelling the filmmaker and Google, in effect, not to speak is a “prior restraint,” a concept long looked at with disfavor. Indeed, since the decision earlier this year that already appeared shaky in its own right, the Supreme Court has continued its recent trend of treating First Amendment rights as almost inviolable. That did not explicitly play a role in the order for rehearing, but it most certainly will in the argument that follows. 

Lastly, fair use did not come up in the prior decisions, but it still may. If, as Garcia argues, she thought her performance would be used for something entirely different that what she finds so offensive in “Innocence of Muslims,” then the very fact of how different it became may well make the second film transformative enough (relying on the recent trend in fair use cases), to allow distribution to proceed even if Garcia is the copyright holder. If Richard Prince can desecrate respectful images of Rastafarians with pornography and win the fair use argument, then why wouldn’t the transformation of idyllic pastoral scenes into an anti-Islamic screed be similarly transformative? Giving offense may help the appealing parties here. 

Make no mistake, this case is very, very important. Its potentially disruptive effect on the filmmaking industry is considerable. Argument has been scheduled for the week of December 15, 2014.