Cindy Lee Garcia v. Google Inc. et al.

Overturning a hotly debated district court decision, in a case involving numerous amicus curiae briefs, the en banc Court of Appeals for the Ninth Circuit affirmed a district court’s denial of a motion for a preliminary injunction requiring Google to remove the anti-Islam filmInnocence of Muslims from YouTube and other platforms, concluding that plaintiff-appellant Cindy Lee Garcia did not have a copyright claim in her acting performance to the extent that her performance appeared, without her consent, in the controversial film. Cindy Lee Garcia v. Google Inc. et al., Case No. 12-57302 (9th Cir. May 18, 2015) (McKeown, J.) (Watford, J., concurring) (Kozinski, J., dissenting).

In 2011, Garcia was cast for a brief two-line, five-second role in what she understood to be an action-adventure film titled Desert Warrior. Instead of an action-adventure thriller, however, the writer and director of the project created an inflammatory anti-Islam film calledInnocence of Muslims with violent and offensive depictions of the Prophet Mohammed. A 14-minute trailer of the film was uploaded to YouTube in 2012, and the film was considered to be a primary source of extreme violence that subsequently erupted in the Middle East. Garcia’s original lines for the Desert Warrior film were overdubbed without her permission with belligerent language against the Prophet Mohammed. As a result of her participation in the film, Garcia received death threats.

After voluntarily dismissing a state court action filed on various grounds, Garcia filed suit in federal district court against Google and the writer-director of the film and sought a temporary restraining order and preliminary injunction barring Google from hosting the film on the sole basis of copyright infringement. The district court denied the preliminary injunction, finding that the nature of Garcia’s copyright interest in her performance was unclear. The lower court also found that Garcia had not demonstrated that the injunction would prevent any alleged harm, since the film had already been on the Internet for no less than five months. Garcia appealed.

A panel majority of the 9th Circuit reversed the district court and granted a preliminary injunction, finding that Garcia was likely to prevail on her “fairly debatable” copyright claim in her individual performance in the film. The 9th Circuit also found that Garcia demonstrated irreparable harm based on the death threats against her. The full 9th Circuit then granted a rehearing en banc.

Although Garcia sued on an array of legal theories, including fraud, libel and intentional infliction of emotional distress, her motion for preliminary injunction was based only on copyright infringement. The 9th Circuit, while noting it was “sympathetic” to Garcia’s plight, found that Garcia was not likely to succeed on her copyright claim. The 9th Circuit placed significant weight on the conclusion of the Copyright Office that Garcia’s brief five-second performance was not a copyrightable work apart from the entire film, explaining that she was neither the author of the script nor the director of the film. The 9th Circuit also discussed the fact that Garcia had never fixed her fleeting performance in a tangible, fixed medium, as required by copyright law. Instead, as the 9th Circuit notes, “for better or for worse,” the fixation was done by the filmmaker and his crew. Thus, Garcia’s performance, apart from the film as a “single integrated work,” was unregistrable. The 9th Circuit warned that Garcia’s theory of copyright law in her limited performance would splinter “a movie into many different ‘works,’” thereby “making Swiss cheese of copyrights.” More broadly, the Court also concluded that the removal of the video was a prior restraint in violation of the First Amendment.

While the 9th Circuit observed that it was possible to affirm the district court solely on a copyright issue, it must also look at the issue of irreparable harm in the context of the requested injunction. The 9th Circuit explained that in the context of Copyright Law, Garcia’s harm must be to her legal interests as an author—not death threats against her personally. As the 9th Circuit explained “authors cannot seek emotional distress damages under the Copyright Act,” concluding that Garcia’s harms were to be too attenuated from the purpose of copyright. Therefore, in the face of a “doubtful copyright claim” and the lack of irreparable harm to Garcia’s interests as an author, the 9th Circuit dissolved the prior panel’s injunction.

In a concurring opinion, Judge Watford stated that the issue of the injunction should not have been decided on the issue of copyright law, but on the basis of Garcia’s failure to prove a likelihood of irreparable harm. Judge Kozinski, who authored the panel’s original and now dissolved ruling, issued a dissenting opinion arguing that Garcia met all of the requirements for copyright protection in her individual and previously recorded performance that was added later to the problematic film.