The full en banc panel of the Ninth Circuit Court of Appeals has reversed the earlier three-judge panel decision concerning a claimed copyright in the notorious Innocence of Muslims film.  The full panel rebuked—wisely—the earlier panel’s holding that Cindy Lee Garcia had an independent and enforceable copyright in her acting performance that would allow her to enjoin reproduction of the video (on YouTube, in particular).  Garcia’s case failed both for threshold reasons of fixation, and larger issues of copyright and the First Amendment.  The case is a sympathetic one, but the ruling that has now been overruled was an unworkable one that needed to be corrected.  Many of the problems and ramifications of the earlier opinion that we have noted were echoed in the decision.

The movie gained immediate and worldwide notoriety.  The video first shows what are apparently Christians being attacked, while a presumably Muslim mob destroys a medical clinic, all while the police do nothing. The movies then abruptly purports to retell the life of the prophet Muhammad. People could not even agree if it was a movie, a trailer, or something else. The tragic upshot was that protestors soon converged on American embassies and contemporaneous with the now-infamous and deadly attack on the U.S. Embassy in Benghazi, Libya. As observers noted at the time, the dubbing and lip-synching was so bad, “It is quite possible that the actors had no idea what they were doing.”

Garcia, one of the actresses in the video, stated publicly that she had no idea what the movie was to turn out to be at the time she participated, and that the Islamophobic audio had been dubbed over whatever she actually said when filming. She also sued, arguing that her performance was an independently copyrightable work, such that the producers needed her permission to distribute and reproduce it. Notably, she sued Google as YouTube’s parent, for failing to take down the video when she asked under the Digital Millennium Copyright Act (DMCA).  The District Court denied her injunction request.

In March of last year, the three-judge panel ruled that Garcia 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 mandatory 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.

The majority issue put the issue this way in its opinion yesterday:

In this case, a heartfelt plea for personal protection is juxtaposed with the limits of copyright law and fundamental principles of free speech.  The appeal teaches a simple lesson—a weak copyright claim cannot justify censorship in the guise of authorship.

And, as we noted when the opinion first came out, the stakes were high:

Garcia’s theory can be likened to “copyright cherry picking,” which would enable any contributor from a costume designer down to an extra or best boy to claim copyright in random bits and pieces of a unitary motion picture without satisfying the requirements of the Copyright Act. 

The opinion rested on several bases.  First, it was an appeal concerning a mandatory injunction: an order to compel Google to do something.  That requires not merely showing that the movant is likely to succeed (the standard for restraining further action), but that its position is clearly correct.  The District Court, not the panel, held the Ninth Circuit, got that balance right when it denied the injunction in the first instance.

As to the merits of Garcia’s copyright claim, the Ninth Circuit took aim at the threshold requirement of fixation.  A work is copyrightable only if it is “fixed in a tangible medium.”  Garcia did not fix anything (she performed)—the movie’s director and producers did.  If I perform an interpretive dance in Central Park I can’t claim copyright; if I videotape myself doing it, I can.

The Ninth Circuit also noted that movies are considered single, integrated works.  This is for practical reasons and under prior interpretations of copyright law.  The opinion held that the asserted performance also failed to establish the minimum creativity required: (something that the Copyright Office had already concluded in denying Garcia’s registration request:

Garcia’s theory of copyright law would result in the legal morass we warned against in Aalmuhammed—splintering a movie into many different “works,” even in the absence of an independent fixation.  Simply put, as Google claimed, it “make[s] Swiss cheese of copyrights.”

Take, for example, films with a large cast—the proverbial “cast of thousands”10—such as Ben-Hur or Lord of the Rings.11  The silent epic Ben-Hur advertised a cast of 125,000 people.  In the Lord of the Rings trilogy, 20,000 extras tramped around Middle-Earth alongside Frodo Baggins (played by Elijah Wood).  Treating every acting performance as an independent work would not only be a logistical and financial nightmare, it would turn cast of thousands into a new mantra: copyright of thousands.

Even if Garcia’s performance was not a work for hire (meaning any copyrightable performance), it at least constituted an implied license.

Having reversed the earlier opinion on the strength of Garcia’s claim (without which there could be no injunction and Google would win), the court did not have to proceed to any further analysis, and the remainder of the opinion is arguably dicta—the court’s opinion but since not essential to the holding, and thus not necessarily binding law.  The Ninth Circuit clearly wanted to send a message however, when it proceeded to the irreparable harm element of the injunction.  While sympathetic to the plight that Garcia faced, the court noted that copyright is not the vehicle for the privacy protection that Garcia was actually seeking.  The Ninth Circuit also took pains to address the injunction in the context of the First Amendment.

To be sure, this is not a case of garden-variety copyright infringement, such as seeking to restrain the use of copyrighted computer code.  The panel’s takedown order of a film of substantial interest to the public is a classic prior restraint of speech.  Alexander v. United States, 509 U.S. 544, 550 (1993) (“Temporary restraining orders and permanent injunctions—i.e., court orders that actually forbid speech activities—are classic examples of prior restraints.”).  Prior restraints pose the “most serious and the least tolerable infringement on First Amendment rights,” Hunt v. NBC, 872 F.2d 289, 293 (9th Cir. 1989) (citation omitted), and Garcia cannot overcome the historical and heavy presumption against such restraints with a thin copyright claim in a five-second performance.

This case reminds me in many ways of the Jenack case (concerning disclosure of the seller in an auction under New York law), in that it created an interregnum that no one expected and which threatened to upend he status quo.  Those expectations have now been restored.

Interestingly, while the result certainly telegraphs the probable outcome of the case, the appeal concerned only the injunction.  I would certainly expect the defendants to move to dismiss relying on this opinion, but the case is not actually over (yet).