On Monday, May 18, 2015, the Ninth Circuit, sitting en banc, overturned a highly-controversial opinion in Garcia v. Google, Inc., in which a three-judge panel of the Ninth Circuit reversed the trial court and held that an actor or actress owns a copyright interest in his or her performance in a film or television program, however small that performance is relative to the work as a whole.

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

In its May 18, 2015 en banc opinion, the Ninth Circuit held the district court did not err in denying Garcia’s motion for a preliminary injunction “because the law and facts did not clearly favor her claim to a copyright in her acting performance as it appeared in Innocence of Muslims.”  As U.S. Circuit Judge M. Margaret McKeown explained in the opinion, “Garcia’s theory . . . 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.”  In reaching this conclusion, the court credited the expert opinion of the Copyright Office, which found that Garcia’s performance was not a copyrightable work and therefore rejected Garcia’s copyright application, as well as the fact that Garcia herself had no role in the fixation of her performance in a tangible medium of expression.

The en banc court also affirmed the district court’s opinion on the independent ground that in the context of copyright infringement – the only basis upon which Garcia sought a preliminary injunction – Garcia failed to make a clear showing of irreparable harm.  Although the court stressed that it did not take lightly the death threats Garcia received or the emotional turmoil she endured, the court noted that her harms are “untethered from—and incompatible with—copyright and copyright’s function as the engine of expression.”

Finally, the court dissolved the panel’s amended takedown injunction against the posting or display of any version of Innocence of Muslims that included Garcia’s performance, which gave Google just 24 hours to pull the film and barred the company from stating publicly why it was doing so.  The court held that the injunction was unwarranted and incorrect as a matter of law and was a prior restraint that infringed the First Amendment values at stake.