Garcia v. Google, Inc., 12–57302.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Citation: 786 F.3d 733,114 U.S.P.Q.2d 1607
• Docket Number: No. 12–57302.,12–57302.
• Parties: Cindy Lee GARCIA, Plaintiff–Appellant, v. GOOGLE, INC., a Delaware Corporation; YouTube, LLC, a California limited liability company, Defendants–Appellees, and Nakoula Basseley Nakoula, an individual, aka Sam Bacile; Mark Basseley Youssef; Abanob Basseley Nakoula; Matthew Nekola; Ahmed Hamdy; Amal Nada; Daniel K. Caresman; Kritbag Difrat; Sobhi Bushra; Robert Bacily; Nicola Bacily; Thomas J. Tanas; Erwin Salameh; Yousseff M. Basseley; Malid Ahlawi, Defendants.
• Decision Date: 18 May 2015

786 F.3d 733
114 U.S.P.Q.2d 1607

Cindy Lee GARCIA, Plaintiff–Appellant
v.
GOOGLE, INC., a Delaware Corporation; YouTube, LLC, a California limited liability company, Defendants–Appellees
and
Nakoula Basseley Nakoula, an individual, aka Sam Bacile; Mark Basseley Youssef; Abanob Basseley Nakoula; Matthew Nekola; Ahmed Hamdy; Amal Nada; Daniel K. Caresman; Kritbag Difrat; Sobhi Bushra; Robert Bacily; Nicola Bacily; Thomas J. Tanas; Erwin Salameh; Yousseff M. Basseley; Malid Ahlawi, Defendants.

No. 12–57302.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc Dec. 15, 2014.
Filed May 18, 2015.

786 F.3d 735

M. Cris Armenta, The Armenta Law Firm ACP, Los Angeles, CA; Credence Sol, La Garenne, Chauvigng, France; and Jason Armstrong, Bozeman, MT, for Plaintiff–Appellant.

Neal Kumar Katyal, Christopher T. Handman, Dominic F. Perella, and Sean Marotta, Hogan Lovells U.S. LLP, Washington, D.C.; and Timothy Alger and Sunita Bali, Perkins Coie LLP, Palo Alto, CA, for Defendants–Appellees Google, Inc. and YouTube LLC.

Michael H. Page and Joseph C. Gratz, Durie Tangrie LLP, San Francisco, CA, for Amicus Curiae Netflix, Inc.

Christopher Jon Sprigman, New York University School of Law, New York, N.Y.; Christopher Newman, George Mason University School of Law, Arlington, VA; and Jennifer S. Grannick, Stanford Law School, Stanford, CA, for Amici Curiae Professors of Intellectual Property.

Matt Schruers, Washington, D.C., for Amicus Curiae Computer & Communications Industry Association.

Corynne McSherry and Vera Ranieri, Electronic Frontier Foundation, San Francisco, CA; Lee Rowland and Brian Hauss, American Civil Liberties Union, New York, N.Y.; Sherwin Siy and John Bergmayer, Public Knowledge, Washington, D.C.; Art Neill and Teri Karobonik, New Media Rights, San Diego, CA; Erik Stallman, Center for Democracy & Technology, Washington, D.C.; and Jonathan Band, Jonathan Band PLLC of Washington, D.C., for Amici Curiae Electronic Frontier Foundation, American Civil Liberties Union, Public Knowledge, Center for Democracy and Technology, New Media Rights, American Library Association, Association of College and Research Libraries, and Association of Research Libraries.

Catherine R. Gellis, Sausalito, CA, for Amici Curiae Floor 64, Inc., and Organization for Transformative Works.

Christopher S. Reeder, Robins, Kaplan, Miller & Ciresi LLP, Los Angeles, CA; David Leichtman and Michael A. Kolcun, Robins, Kaplan, Miller & Ciresi LLP, New York, N.Y.; and Kathryn Wagner, Stacy Lefkowitz, and Kristine Hsu, New York, N.Y., for Amicus Curiae Volunteer Lawyers for the Arts, Inc.

Andrew P. Bridges, David L. Hayes, Kathryn J. Fritz, and Todd R. Gregorian, Fenwick & West LLP, San Francisco, CA, for Amici Curiae Adobe Systems, Inc., Automattic, Inc., Facebook, Inc., Gawker Media, LLC, IAC/Interactive Corp., Kickstarter, Inc., Pinterest, Inc., Tumblr, Inc., and Twitter, Inc.

Venkat Balasubramani, Focal PLLC, Seattle, WA; Eric Goldman, Santa Clara University School of Law, Santa Clara, CA, for Amici Curiae Internet Law Professors.

Gary L. Bostwick, Bostwick Law, Los Angeles, CA; Jack I. Lerner, UCI Intell. Prop., Arts & Tech. Clinic, Irvine, CA; Michael C. Donaldson, Donaldson + Callif, LLP, Beverly Hills, CA; Lincoln D. Bandlow, Lanthrop & Gage LLP, Los Angeles, CA; and Rom Bar–Nissim, Los Angeles, CA, for Amici Curiae International Documentary

786 F.3d 736

Association, Film Independent, Fredrik Gertten and Morgan Spurlock.

Kelli L. Sager, Dan Laidman and Brendan N. Charney, Davis Wright Tremaine LLP, Los Angeles, CA, for Amici Curiae Los Angeles Times Communications LLC; The E.W. Scripps Company; Advance Publications, Inc.; The New York Times Company; The Washington Post; the Reporters Committee for Freedom of the Press; National Public Radio, Inc.; the National Press Photographers Association; the California Newspaper Publishers Association; and the First Amendment Coalition.

Duncan Crabtree–Ireland and Danielle S. Van Lier, SAG–AFTRA, Los Angeles, CA; Thomas R. Carpenter, Actors' Equity Association, New York, N.Y.; Jennifer P. Garner, American Federation of Musicians of the United States and Canada, New York, N.Y.; Dominick Luquer, International Federation of Actors, Brussels, Belgium; and Elichai Shaffir, Counsel for Alliance of Canadian Cinema, Television, and Radio Artists, Toronto, Ontario, for Amici Curiae Screen Actors Guild–American Federation of Television and Radio Artists; Actors' Equity Association; American Federation of Musicians of the United States and Canada; International Federation of Actors; Alliance of Canadian Cinema, Television, and Radio Artists; Equity UK; Media, Entertainment and Arts Alliance–Equity Division (Australia & New Zealand); and South African Guild of Actors.

Paul Alan Levy and Scott Michelman, Public Citizen Litigation Group, Washington, D.C., for Amicus Curiae Public Citizen.

Justin Hughes, Loyola Law School, Los Angeles, CA, for Amici Curiae Professors Shyamkrishna Balganesh, Justin Hughes, Pete Menell, and David Nimmer.

Appeal from the United States District Court for the Central District of California, Michael W. Fitzgerald, District Judge, Presiding. D.C. No. 2:12–cv–08315–MWF–VBK.

Before: SIDNEY R. THOMAS, Chief Judge, and ALEX KOZINSKI, M. MARGARET McKEOWN, MARSHA S. BERZON, JOHNNIE B. RAWLINSON, RICHARD R. CLIFTON, CONSUELO M. CALLAHAN, N. RANDY SMITH, MARY H. MURGUIA, MORGAN CHRISTEN and PAUL J. WATFORD, Circuit Judges.

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. Millions

786 F.3d 737

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-director Mark Basseley Youssef (a.k.a. Nakoula Basseley Nakoula or Sam Bacile) had a different film in mind: an anti-Islam...