Cindy Garcia v. Google, Inc.

786 F.3d 733, 43 Media L. Rep. (BNA) 1723, 114 U.S.P.Q. 2d (BNA) 1607, 2015 U.S. App. LEXIS 8105, 2015 WL 2343586
Court of Appeals for the Ninth Circuit·Decided May 18, 2015·No. 12-57302·Published·Cited by 522 cases

Opinions

Opinion by Judge MCKEOWN; Concurrence by Judge WATFORD; Dissent by Judge KOZINSKI.

OPINION

McKEOWN, Circuit Judge:

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.

By all accounts, Cindy Lee Garcia was bamboozled when a movie producer transformed her five-second acting performance into .part of a blasphemous video proclamation against the Prophet Mohammed.1 The producer — now in jail on unrelated matters — uploaded a trailer of the film, Innocence of Muslims, to YouTube. Mil[737]*737lions of viewers soon watched it online, according to Garcia. News outlets credited the film as a source of violence in the Middle East. Garcia received death threats.

Asserting that she holds a copyright interest in her fleeting performance, Garcia sought a preliminary injunction requiring Google to remove the film from all of its platforms, including YouTube. The district court denied the injunction, finding that Garcia did not establish likely success on the merits for her copyright claim. Nor did she demonstrate that the injunction would prevent any alleged harm in light of the film’s five-month presence on the Internet. A divided panel of our court reversed, labeled her copyright claim as “fairly debatable,” but then entered a mandatory injunction requiring Google to remove the film. That injunction was later limited to versions of the film featuring Garcia’s performance.

As Garcia characterizes it, “the main issue in this case involves the vicious frenzy against Ms. Garcia that the Film caused among certain radical elements of the Muslim community.” We are sympathetic to her plight. Nonetheless, the claim against Google is grounded in copyright law, not privacy, emotional distress, or tort law, and Garcia seeks to impose speech restrictions under copyright laws meant to foster rather than repress free expression. 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. Putting aside the rhetoric of Hollywood hijinks and the dissent’s dramatics, this case must be decided on the law.

In light of the Copyright Act’s requirements of an “original work[ ] of authorship fixed in any tangible medium,” 17 U.S.C. § 102(a), the mismatch between Garcia’s copyright claim and the relief sought, and the Copyright Office’s rejection of Garcia’s application for a copyright in her brief performance, we conclude that the district court did not abuse its discretion in denying Garcia’s request for the preliminary injunction. As a consequence, the panel’s mandatory injunction against Google was unjustified and is dissolved upon publication of this opinion.

Background and Procedural History

In July 2011, Cindy Lee Garcia responded to a casting call for a film titled Desert Warrior, an action-adventure thriller set in ancient Arabia. Garcia was cast in a cameo role, for which she. earned $500. She received and reviewed a few pages of . script. Acting under a professional director hired to oversee production, Garcia spoke two sentences: “Is George crazy? Our daughter is but a child?” Her role was to deliver those lines and to “seem[ ] concerned.”

Garcia later discovered that writer-dir rector Mark Basseley Youssef (a.k.a. Nak-oula Basseley Nakoula or Sam Bacile) had a different film in mind: an anti-Islam polemic renamed Innocence of Muslims. The film, featuring a crude production, depicts the Prophet Mohammed as, among other things, a murderer, pedophile, and homosexual. Film producers dubbed over Garcia’s lines and replaced them with a voice asking, “Is your Mohammed a child molester?” Garcia appears on screen for only five seconds.

Almost a year after the casting call, in June 2012, Youssef uploaded a 13-minute- and-51-second trailer of Innocence of Muslims to YouTube, the video-sharing website owned by Google, Inc., which boasts a global audience of more than one [738]*738billion visitors per month.2 After it was translated into Arabic, the film fomented outrage across the Middle East, and media reports linked it to numerous violent protests. The film also has been a subject of political controversy over its purported connection to the September 11, 2012, attack on the United States Consulate in Benghazi, Libya.

Shortly after the Benghazi attack, an Egyptian cleric issued a fatwa against anyone associated with Innocence of Muslims, calling upon the “Muslim Youth in Amer-iea[ ] and Europe” to “kill the director, the producer!,] and the actors and everyone who helped and promoted this film.” Garcia received multiple death threats.

Legal wrangling ensued. Garcia asked Google to remove the film, asserting it was hate speech and violated her state law rights to privacy and to control her likeness. Garcia also sent Google five take-down notices under the Digital Millenium Copyright Act, 17 U.S.C. § 512, claiming that YouTube’s broadcast of Innocence of Muslims infringed her copyright in her “audio-visual dramatic performance.” Google declined to remove the film.

On September 19, 2012, Garcia first sued Google, Youssef, and other unnamed production assistants in Los Angeles Superior Court. Her complaint alleged a compendium of torts and assorted wrongdoing under California law. As against Google, Garcia made claims for invasion of privacy, false light, and violating her right to publicity. She brought the same claims against Youssef and added fraud, unfair business practices, slander, and intentional infliction of emotional distress. The state court denied Garcia’s motion for a “temporary restraining order and for an order to show cause re preliminary injunction,” because she had “not shown a likelihood of success on the merits.” On September 25, 2012, Garcia voluntarily dismissed her state court suit.

One day later, Garcia turned to federal court. She filed suit in the United States District Court for the Central District of California and again named Google and Youssef as codefendants. Garcia alleged copyright infringement against both defendants and revived her state law claims against Youssef for fraud, unfair business practices, libel, and intentional infliction of emotional distress.

Garcia then moved for a temporary restraining order and for an order to show cause on a preliminary injunction — but only on the copyright claim. She sought to bar Google from hosting Innocence of Muslims on YouTube or any other Google-run website.

On November 30, 2012, the district,court denied Garcia’s motion for a preliminary injunction. As an initial matter, the court concluded that “Garcia ha[d] not demonstrated that the requested relief would prevent any alleged harm,” because, by that point, the film trailer had been on the Internet for five months. Nor did Garcia establish a likelihood of success on the merits.

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Cindy Garcia v. Google, Inc., 786 F.3d 733, 43 Media L. Rep. (BNA) 1723, 114 U.S.P.Q. 2d (BNA) 1607, 2015 U.S. App. LEXIS 8105, 2015 WL 2343586 (9th Cir. 2015).

786 F.3d 733 (Cindy Garcia v. Google, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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