Cindy Garcia v. Google, Inc.

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

OPINION

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 lions 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…

concurring in the judgment:

We don’t. have to craft new rules of copyright law to resolve this appeal. We just have to follow the law we established a few years ago, without controversy, on the subject of irreparable harm. The majority’s decision to do more is a mistake in my view, and not just because much of what the majority says about copyright law may be wrong. See Dissent at 749-51. We are usually well advised to decide no more than we need to, even when resolving routine appeals typical of those we’re likely to see in the future. We should be all the more cautious when resolving an appeal like this one, a case that could not be more atypical as far as copyright infringement *748 actions go and one that is highly charged on both sides to boot. Because the risk of making bad law in these circumstances is particularly high, we should aim to decide as narrowly as we can, leaving the task of crafting broad new rules for a case in which it is actually necessary to do so. See Frederick Schauer, Do Cases Make Bad Law?, 73 U. Chi. L.Rev. 883, 916 (2006).

Had we chosen to decide narrowly here, we could have affirmed the district court’s denial of a preliminary injunction by…

dissenting:

Garcia’s dramatic performance met all of the requirements for copyright protection: It was copyrightable subject matter, it was original and it was fixed at the moment it was recorded. So what happened to the copyright? At times, the majority says that Garcia’s performance was not copyrightable at all. And at other times, it seems to say that Garcia just didn’t do enough to gain a copyright in the scene. Either way, the majority is wrong and makes a total mess of copyright law, right here in the Hollywood Circuit. In its haste to take internet service providers off the hook for infringement, the court'today robs performers and other creative talent of rights Congress gave them. I won’t be a party to it.

I

Youssef handed Garcia a script. Garcia performed it. Youssef recorded Garcia’s performance on video and saved the clip. Until today, I understood that the rights in such a performance are determined according to elementary copyright principles: An “original work[] of authorship,” 17 U.S.C. § 102 (a), requires only copyrightable subject matter and a “minimal degree of creativity.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 , 111 S.Ct. 1282 , 113…

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, OPINION 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.

Appeal from the United States District Court for the Central District of California Michael W. Fitzgerald, District Judge, Presiding Argued and Submitted En Banc December 15, 2014—Pasadena California

Filed May 18, 2015

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…