On Monday, December 15, 2014, the Ninth Circuit en banc heard oral argument in Garcia v. Google, Inc., 766 F3d 929 (9th Cir. 2014), amending 743 F.3d 1258 (9th Cir. 2014).  In a controversial decision in February 2014, a three-judge panel of the Ninth Circuit reversed the trial court and held that an actor owns a copyright interest in his or her performance, however small.  In November 2014, the Ninth Circuit ordered that the case be reheard en banc.

Appellant Cindy Garcia is an actress who believed she was appearing in a minor role in an adventure movie only to learn that the producers instead included her performance in an anti-Islamic film titled Innocence of Muslims and dubbed over her lines such that her character appeared to be speaking ill of the prophet Mohammed.  After Ms. Garcia began receiving death threats, she filed a number of “take down” notices seeking to have Google remove Innocence of Muslims from the YouTube website.  When Google refused, Garcia filed a copyright infringement action and sought a preliminary injunction ordering Google to remove the film.

The trial court denied Ms. Garcia’s request, and she appealed to the Ninth Circuit.  In a 2-1 decision authored by Chief Judge Alex Kozinsky, the Ninth Circuit reversed the lower court and ruled that Ms. Garcia had established a likelihood of success and was therefore entitled to injunctive relief.  They did so by holding that Ms. Garcia had a protectable copyright interest in her brief performance.  That opinion was met with heavy criticism.  Google petitioned for rehearing, supported by numerous amici briefs.

In November 2014, the Ninth Circuit  ordered that the case be reheard and that “[t]he three-judge opinion shall not be cited as precedent by or to any court of the Ninth Circuit.”  The court apparently ordered the review because the proceeding “involves a question of exceptional importance.”

While oral argument touched on many issues, such as the impact of the Beijing Treaty on Audiovisual Performances and whether Ms. Garcia satisfied the preliminary injunction standard that requires courts to deny broad injunctive relief if the law does not “clearly favor” the legal claim, the primary topic at oral argument was whether an individual performance within a larger work is even copyrightable in the first instance.  The court gave no indication as to when it expects to issue a ruling.  Whatever the result, the Ninth Circuit’s en banc ruling figures to be one of the most important decisions of 2014 for the court and will no doubt generate a flurry of commentary and a likely petition for certiorari to the Supreme Court.