Cindy Garcia v. Google, Inc.
786 F.3d 733
| 9th Cir. | 2015Background
- Cindy Lee Garcia performed a brief (≈5-second) cameo in a film shot by Mark Basseley Youssef; her spoken lines were later dubbed to convey anti-Islam content in the film "Innocence of Muslims."
- Youssef uploaded a trailer to YouTube; the film was widely viewed after Arabic translations and sparked international outrage and threats against Garcia.
- Garcia sent multiple DMCA take-down notices to Google and sued Google and Youssef in federal court asserting copyright infringement in her audiovisual performance (and other state tort claims against Youssef); she sought a mandatory preliminary injunction ordering Google to remove the film from its platforms.
- The district court denied the injunction, finding Garcia unlikely to prevail on the copyright claim and that an injunction would not prevent the alleged harms, particularly given delay and implied license findings.
- A Ninth Circuit panel reversed and issued a (later narrowed) takedown injunction; the court granted rehearing en banc and the en banc majority (McKeown) dissolved the panel injunction and affirmed the district court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Garcia’s 5‑second recorded performance is a copyrightable “work” fixed "by or under the authority of the author" | Garcia: her original acting performance is an original, fixed audiovisual contribution entitled to copyright protection. | Google: performance is part of an integrated motion picture; performer did not fix the work or claim authorship separate from the film; Copyright Office refused registration. | Held: Law does not clearly favor Garcia—individual acting performances in an integrated motion picture are not separately copyrightable here; fixation/authority lacking. |
| Whether Garcia is likely to succeed on the merits (threshold for preliminary injunction) | Garcia: her claim is at least "fairly debatable" and she is likely to prevail on a discrete copyright in her performance. | Google: claim is weak—fails authorship/fixation tests, undermined by Copyright Office and implied license. | Held: District court did not abuse discretion; Garcia failed to show the law and facts clearly favor her (mandatory injunction standard). |
| Whether Garcia demonstrated irreparable harm that removal would likely prevent | Garcia: death threats and severe personal/reputational harms; removal would reduce threats and vindicate her interests. | Google: harms are personal and untethered to copyright interests; removal from YouTube would not likely eliminate the fatwa/threats; plaintiff delayed seeking relief. | Held: Irreparable harm in the copyright sense not shown; causal link between takedown and mitigating threats was insufficient; delay undermined urgency. |
| Whether a mandatory pre-publication takedown would raise First Amendment/prior restraint concerns | Garcia: focused on copyright relief; argued rights to remove infringing content. | Google/public interest: mandatory takedown of politically significant film is a prior restraint; thin copyright claim cannot justify suppression. | Held: The panel’s takedown was an unjustified prior restraint given the weak copyright showing; injunction dissolved. |
Key Cases Cited
- Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) (preliminary‑injunction test requires likelihood of success and irreparable harm)
- Aalmuhammed v. Lee, 202 F.3d 1227 (9th Cir. 2000) (definition of the relevant “work” is central to authorship/joint‑authorship analysis)
- Effects Associates, Inc. v. Cohen, 908 F.2d 555 (9th Cir. 1990) (contributors to a film may retain copyright in separately fixed material incorporated into a film)
- Eldred v. Ashcroft, 537 U.S. 186 (2003) (copyright is not categorically immune from First Amendment challenges)
- Perfect 10, Inc. v. Google, Inc., 653 F.3d 976 (9th Cir. 2011) (preliminary injunction requires causal connection between removal and preventing irreparable harm)
- Stanley v. Univ. of S. Cal., 13 F.3d 1313 (9th Cir. 1994) (mandatory injunctions are disfavored and require facts and law to clearly favor the movant)
- Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010) (harm to be considered must relate to the parties’ legal interests under the relevant statute)