Cindy Garcia v. Google, Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CINDY LEE GARCIA, No. 12-57302 Plaintiff-Appellant, D.C. No. v. 2:12-cv-08315-

MWF-VBK

GOOGLE, INC., a Delaware Corporation; YOUTUBE, LLC, a California limited liability company, ORDER AND Defendants-Appellees, AMENDED

OPINION

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.

Appeal from the United States District Court for the Central District of California Michael W. Fitzgerald, District Judge, Presiding GARCIA V. GOOGLE, INC.

Argued and Submitted June 26, 2013—Seattle, Washington

Filed February 26, 2014 Amended July 11, 2014

Before: Alex Kozinski, Chief Judge, Ronald M. Gould and N. Randy Smith, Circuit Judges.

Opinion by Chief Judge Kozinski; Dissent by Judge N.R. Smith

SUMMARY*

Copyright / Preliminary Injunction

The panel filed (1) an order amending a…

ORDER AND AMENDED OPINION

ORDER

The opinion and dissent filed February 26, 2014, and reported at 743 F.3d 1258 , are amended to conform to the attached Amended Opinion and Amended Dissent, 12-57302. No further petitions for rehearing will be entertained. The petition for rehearing en banc remains pending.

OPINION

While answering a casting call for a low-budget amateur film doesn’t often lead to stardom, it also rarely turns an aspiring actress into the subject of a fatwa. But that’s exactly what happened to Cindy Lee Garcia when she agreed to act in a film with the working title “Desert Warrior.”

The film’s writer and producer, Mark Basseley Youssef — who also goes by the names Nakoula Basseley Nakoula and Sam Bache — cast Garcia in a minor role. Garcia was given the four pages of the script in which her character appeared and paid approximately $500 for three and a half days of filming. “Desert Warrior” never materialized. Instead, Garcia’s scene was used in an anti-Islamic film titled “Innocence of Muslims.” Garcia first saw “Innocence of Muslims” after it was uploaded to YouTube.com and she discovered that her brief performance had been partially dubbed over so that she…

dissenting.

Because the. facts and law do not “clearly favor” issuing a preliminary injunction to Garcia, the district court did not abuse its discretion in denying Garcia’s requested relief. As a result, I must dissent.

I. Standard of Review

The majority opinion omits applying the requisite standard of review that is especially pertinent to Garcia’s requested relief. Mandatory preliminary injunctions, similar to the one issued today, are “particularly disfavored.” Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1320 (9th Cir.1994).

Different from the usual “prohibitory injunction,” a “mandatory injunction goes well beyond simply maintaining the status quo pendente lite.” Id. (internal quotation marks omitted). As an example, requiring a university to reappoint a faculty member whose contract had expired constitutes a mandatory injunction. Id.; see also, e.g., Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir.2009) (“[T]he affirmative step of recalling [a] product” is also a mandatory injunction.). In the instant dispute, Garcia requests relief through a mandatory injunction. Rather than asking to maintain the status quo pending litigation, Garcia…