This blog previously discussed the Ninth Circuit Court of Appeals opinion in Garcia v.  Google, Inc., (9thCir. 2014) 766 F.3d 929, reversing a decision of the district court.  On Monday, the Ninth Circuit, en banc, in Garcia v.  Google, Inc., (9th Cir., No. 12-57302, May 18, 2015) 2015 U.S.App. Lexis 8105, issued a new opinion, affirming the district court.  To recap, in 2014, a majority of the Ninth Circuit panel reversed the trial court and held that an actor owns a copyright interest in his or her performance, however small, in a film.  Plaintiff actress Cindy Lee Garcia received $500 for three and a half days of filming in a movie which never materialized.  Instead, Garcia’s scene was inserted into an anti-Islamic film with her voice partially dubbed over so that she appeared to be asking, “Is your Mohammed a child molester?”  The film aired on Egyptian television resulting in protests, including one Egyptian cleric issuing a fatwa calling for the killing of everyone involved with the film.  Garcia also received death threats.  The film was available on YouTube.  Garcia requested that Google (the parent company of YouTube) remove the video.  She then sought a preliminary injunction in the federal district court which the court denied.

Disagreeing with the district court, two of a panel of three appellate judges ruled that Garcia had established a likelihood of success on the action such that she was entitled to injunctive relief.  They did so by holding that Garcia had a protectable copyright interest in her brief performance:  “An actor’s performance, when fixed, is copyrightable if it evinces ‘some minimal degree of creativity . . . no matter how crude, humble or obvious it might be’.”  The panel ordered entry of an injunction precluding showing of the film on YouTube which the panel later modified to prevent the showing of the film on YouTube with the particular actress’s brief performance.

In December 2014, the Ninth Circuit en banc heard argument in the case.  On May 18, 2015, the court issued its en banc opinion, which Judge McKeown authored, with Judge Watford concurring and Judge Kozinski (who wrote the original panel decision) dissenting.  The court affirmed the district court’s denial of a preliminary injunction, rejecting the reasoning of the panel.  Judge McKeown began the court’s en banc opinion succinctly:  “The appeal teaches a simple lesson – a weak copyright claim cannot justify censorship in the guise of authorship.”  Judge McKeon went on to explain that an actor’s performance does not qualify independently as an “original work [] of authorship fixed in any tangible medium.”  (17 U.S.C. § 102(a).)

Crediting the expertise of the Copyright Office, Judge McKeon noted that the Copyright Office had denied the Garcia’s claim of copyright due to its longstanding practice of not allowing a copyright claim by an individual actor or actress in his or her performance contained within a motion picture.  According to the Copyright Office, “[f]or copyright registration purposes, a motion picture is a single integrated work . . . .”  Additionally, Judge McKeon asserted that Garcia had not fixed her acting performance in a tangible medium, rather the director and his crew fixed that performance.

Lastly, Judge McKeon concluded that Garcia had not demonstrated irreparable harm related to copyright.  Garcia’s harm had to  “stem from copyright- namely harm to her legal interests as an author.”  It did not.  It was too attenuated from the purpose of copyright.  “Although we do not take lightly threats to life or the emotional turmoil Garcia has endured, her harms are untethered from- and incompatible with – copyright and copyright’s function as the engine of expression.

The concurring opinion was of the view that the court should have simply addressed the issue of lack of irreparable injury rather than the substantive copyright issue.  Judge Kozinski’s dissent, not surprisingly, rejected the en banc decision reiterating his reasoning in the original panel opinion.  Judge McKeon wrote a rather blunt retort to the dissent.  “the dissent spins speculative hypotheticals about copyright protection for book chapters, movie outtakes, baseball games, and Jimi Hendrix concerts. . . .  This hyperbole sounds a false alarm.  Substituting moral outrage and colorful language for legal analysis, the dissent mixes and matches copyright concepts such as collective works, derivative works, the requirement of fixation, and sound recordings.  The statutory definitions and their application counsel precision, not convolution.”

The en banc opinion is correct and removes from the books one of the more bizarre copyright appellate rulings.  However, whether this opinion is the “end of the movie” remains to be seen.  It seems too much of a long shot to think that the Supreme Court would review this decision.  But, as Jake Gittes’ pal Walsh noted:  “Forget it, Jake, It’s Chinatown.”  Here, it’s the Ninth Circuit.  Anything can happen on the way to the Supreme Court.