766 F.3d 929
9th Cir.2014Background
- Cindy Lee Garcia was hired for a small speaking role in a low‑budget production presented as an Arabic adventure film; she was paid about $500 for ~3.5 days of shooting.
- Producer Mark Basseley Youssef later used Garcia’s filmed scene in a posted video titled "Innocence of Muslims," which contained dubbed lines that she did not intend; the video sparked international protests and death threats against Garcia.
- Garcia sent multiple DMCA takedown notices to Google/YouTube; Google refused, so she sought a TRO/preliminary injunction requiring removal of the video from YouTube on copyright grounds.
- The district court denied preliminary relief, finding delay, lack of causation of future harm, and that Garcia likely granted an implied license to use her performance.
- The Ninth Circuit (Kozinski, C.J.) reversed, issuing a temporary injunction ordering Google to remove the video pending further proceedings and remanding for the district court to apply the Winter factors consistently.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an actor’s fixed onscreen performance can be an independently copyrightable contribution | Garcia: her embodied performance (expressions, movements, reactions) is an original, fixed work of authorship separate from the screenplay | Google: performance is not independently copyrightable; it’s derivative of the script and/or too personal to be a protectible work | Court: An actor’s fixed performance can meet minimal originality and be copyrightable; Garcia likely has a protectible interest on the record before the court |
| Whether performance was a work for hire (vesting ownership in Youssef) | Garcia: not an employee; no written transfer, so not a work for hire | Google: alternatively, contends performance was work for hire under agency factors | Court: Garcia is not shown to be a traditional employee and no written transfer exists; work‑for‑hire doesn't apply on this record |
| Whether Garcia granted an implied license to use her performance in the film | Garcia: any implied license was limited to an adventure film as represented and did not authorize inclusion in an anti‑Islamic propaganda video obtained through fraud | Google: implied license to use and distribute the filmed scene as part of the project | Court: An implied license arose from audition, payment, and delivery, but it was exceeded because Youssef fraudulently misrepresented the project and used the scene in a radically different, unauthorized way |
| Irreparable harm, balance of equities, public interest (preliminary injunction standard) | Garcia: ongoing credible death threats and security harms causally linked to the YouTube posting; copyright infringement and threats constitute irreparable harm; equities and public interest favor protecting life and copyright | Google: delay in suing, removal won’t prevent harm (video widespread), injunction risks prior restraint and burdens free expression | Court: Delay excused because urgency arose when threats began; removing from YouTube would materially reduce harms and the balance of equities/public interest favor Garcia; First Amendment doesn't protect copyright infringement (fair use not raised) |
Key Cases Cited
- Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991) (originality standard: minimal creativity required for copyright)
- Aalmuhammed v. Lee, 202 F.3d 1227 (9th Cir. 2000) (joint‑authorship principles; authorship distinct from making a copyrightable contribution)
- Effects Assocs., Inc. v. Cohen, 908 F.2d 555 (9th Cir. 1990) (implied license in film contexts where contributor delivers work at request of filmmaker)
- Community for Creative Non‑Violence v. Reid, 490 U.S. 730 (1989) (work‑for‑hire test based on agency/employment factors)
- Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) (four‑factor preliminary injunction framework)
- Perfect 10, Inc. v. Google, Inc., 653 F.3d 976 (9th Cir. 2011) (no presumption of irreparable harm in copyright cases; causation requirement)
- Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988) (right of publicity/voice imitation; voice is not copyrightable)
- Eldred v. Ashcroft, 537 U.S. 186 (2003) (copyright protection is not subsumed by First Amendment concerns)