Lead Opinion
ORDER AND AMENDED OPINION
ORDER
The opinion and dissent filed February 26, 2014, and reported at
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 appeared to be asking, “Is your Mohammed a child molester?”
These, of course, are fighting words to many faithful Muslims and, after the film aired on Egyptian television, there were protests that generated worldwide news coverage. An Egyptian cleric issued a fatwa, calling for the killing of everyone involved with the film, and Garcia soon began receiving death threats. She responded by taking a number of security precautions and asking that Google remove the video from YouTube.
In all, Garcia filed eight takedown notices under the Digital Millennium Copyright Act. See generally 17 U.S.C. § 512. When Google resisted, she supplied substantive explanations as to why the film should be taken down. Google still refused to act, so Garcia applied for a temporary restraining order seeking removal of the film from YouTube, claiming that the posting of the video infringed her copyright in her performance.
1. Discussion
While we review the denial of a preliminary injunction for abuse of discretion, Alliance for the Wild Rockies v. Cott-rell,
A. Likelihood of Success on the Merits
Garcia doesn’t claim a copyright interest in “Innocence of Muslims” itself; far from it. Instead, she claims that her performance within the film is independently copyrightable and that she retained an interest in that copyright. To succeed on this claim, Garcia must prove not only that she likely has an independent interest in her performance but that Youssef doesn’t own any such interest as a work for hire and that he doesn’t have an implied license to use her performance.
1. An Independent Copyright Interest
A film is typically conceived of as “a joint work consisting of a number of contributions by different ‘authors.’ ” 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 6.05 at 6-14 (1990). Garcia argues that she never intended her performance to be part of a joint work, and under our precedent she doesn’t qualify as a joint author. See Aal-muhammed v. Lee,
But just because Garcia isn’t a joint author of “Innocence of Muslims” doesn’t mean she doesn’t have a copyright interest in her own performance within the film. Whether an individual who makes an independently copyrightable contribution to a joint work can retain a copyright interest in that contribution is a rarely litigated question. See Thomson v. Larson,
Google argues that Garcia didn’t make a protectible contribution to the film because Youssef wrote the dialogue she spoke, managed all aspects of the production and later dubbed over a portion of her scene. But an actor does far more than speak words on a page; he must “live his part inwardly, and then ... give to his experience an external embodiment.” Constan-tin Stanislavski, An Actor Prepares 15, 219 (Elizabeth Reynolds Hapgood trans., 1936). That embodiment includes body language, facial expression and reactions to other actors and elements of a scene. Id. at 218-19. Otherwise, “every shmuck ... is an actor because everyone ... knows how to read.” Sanford Meisner & Dennis Longwell, Sanford Meisner on Acting 178 (1987).
An actor’s performance, when fixed, is copyrightable if it evinces “some minimal degree of creativity ... ‘no matter how crude, humble or obvious’ it might be.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,
Aalmuhammed isn’t to the contrary because it does not, as the dissent would have it, “articulate[ ] general principles of authorship.” Dissent at 942. Aalmuhammed only discusses what is required for a contributor to a work to assert joint ownership over the entire work: “We hold that authorship is required under the statutory definition of a joint work, and that authorship is not the same thing as making a valuable and copyrightable contribution.”
Recognizing that Garcia may have a copyright interest in her performance isn’t the end of the inquiry. A screenplay is itself a copyrightable creative work and a film is a derivative work of the screenplay on which it is based. See Gilliam v. Am. Broad. Cos.,
Of course, by hiring Garcia, giving her the script and turning a camera on her, Youssef implicitly granted her a license to perform his screenplay. See Effects Assocs., Inc. v. Cohen,
Nothing we say today precludes the district court from concluding that Garcia doesn’t have a copyrightable interest, or that Google prevails on any of its defenses. We note, for example, that after we first issued our opinion, the United States Copyright Office sent Garcia a letter denying her request to register a copyright in her performance. Because this is not an appeal of the denial of registration, the Copyright Office’s refusal to register doesn’t “preclude!] a determination” that Garcia’s performance “is indeed copyrightable.” OddzOn Prods., Inc. v. Oman,
As the above discussion makes clear, any analysis of the rights that might attach to the numerous creative contributions that make up a film can quickly become entangled in an impenetrable thicket of copyright. But it rarely comes to that because copyright interests in the vast majority of films are covered by contract, the work for hire doctrine or implied licenses. See F. Jay Dougherty, Not a Spike Lee Joint? Issues in the Authorship of Motion Pictures Under U.S. Copyright Law, 49 UCLA L.Rev. 225, 238, 317-18, 327-33 (2001). Here, Google argues that Garcia’s performance was a work made for hire or, alternatively, that she granted Youssef an implied license to use her performance in “Innocence of Muslims.”
2. Work For Hire
Under the work for hire doctrine, the rights to Garcia’s performance vested in Youssef if Garcia was Youssef s employee and acted in her employment capacity or was an independent contractor who transferred her interests in writing. See 17 U.S.C. §§ 101, 201(b); see also Cmty. for Creative Non-Violence v. Reid,
The “term ‘employee’ ” refers “to a hired party in a conventional employment relationship,” and the question of employment is analyzed under traditional principles of agency. Reid,
The dissent believes Garcia was an employee primarily because ‘Youssef controlled] both the manner and means of making the film, including the scenes featuring Garcia” and Youssef “was engaged in the business of film making at the time.” Dissent at 946. But there’s no evidence in the record that Youssef directed the film or that he controlled the manner in which any part of the film — much less Garcia’s scene — was shot. In fact, Youssef has claimed only that he wrote the screenplay.
There’s nothing in the record to suggest that Youssef was in the “regular business” of making films. Reid,
3. Implied License
A non-exclusive license may be implied from conduct and arises where a plaintiff “ereate[s] a work at defendant’s request and hand[s] it over, intending that defendant copy and distribute it.” Effects Assocs.,
Any such license must be construed broadly. If the scope of an implied license was exceeded merely because a film didn’t meet the ex ante expectation of an actor, that license would be virtually meaningless. See Food Consulting Grp., Inc. v. Azzalino,
Nevertheless, even a broad implied license isn’t unlimited. See Oddo,
A clear sign that Youssef exceeded the bounds of any license is that he lied to Garcia in order to secure her participation, and she agreed to perform in reliance on that lie. Youssefs fraud alone is likely enough to void any agreement he had with
The situation in which a filmmaker uses a performance in a way that exceeds the bounds of the broad implied license granted by an actor will be extraordinarily rare. But this is such a case. Because it is, Garcia has demonstrated that she’s likely to succeed on the merits of her claim. Winter,
B. Irreparable Harm
Garcia argues that she suffers irreparable harm both because of the ongoing infringement of her copyright and because that infringement subjects her to continuing, credible death threats. Irreparable harm isn’t presumed in copyright cases. Perfect 10, Inc. v. Google, Inc.,
The district court found that Garcia failed to make this required showing, primarily because she didn’t bring suit until several months after “Innocence of Muslims” was uploaded to YouTube. It’s true that a “long delay before seeking a preliminary injunction implies a lack of urgency and irreparable harm.” Oakland Tribune, Inc. v. Chronicle Publ’g Co.,
The harm Garcia complains of is real and immediate. See City of L.A. v. Lyons,
Beyond establishing that she faces an imminent harm, Garcia must show a “sufficient causal connection” between that harm and the conduct she seeks to enjoin such that the injunction would effectively curb the risk of injury. Perfect 10,
She’s made such a showing. Youssefs unauthorized inclusion of her performance in “Innocence of Muslims” undisputedly led to the threats against Garcia. Google argues that any harm arises solely out of
It is not irrelevant that the harm Garcia complains of is death or serious bodily harm, which the dissent fails to mention. Death is an “irremediable and unfathomable” harm, Ford v. Wainwright,
C. Balance of the Equities and The Public Interest
Youssef lied to Garcia about the project in which she was participating. Her performance was used in a way that she found abhorrent and her appearance in the film subjected her to threats of physical harm and even death. Despite these harms, and despite Garcia’s viable copyright claim, Google refused to remove the film from YouTube. It’s hard to see how Google can defend its refusal on equitable grounds and, indeed, it doesn’t really try. Instead, it argues that an injunction would be inequitable because of the overwhelming public interest in the continued hosting of “Innocence of Muslims” on YouTube.
The problem with Google’s position is that it rests entirely on the assertion that Garcia’s proposed injunction is an unconstitutional prior restraint of speech. But the First Amendment doesn’t protect copyright infringement. Cf. Eldred v. Ashcroft,
Because Garcia has demonstrated a likelihood of success on her claim that “Innocence of Muslims” infringes her copyright, Google’s argument fails. The balance of equities therefore clearly favors Garcia
This is a troubling case. Garcia was duped into providing an artistic performance that was used in a way she never could have foreseen. Her unwitting and unwilling inclusion in “Innocence of Muslims” led to serious threats against her life. It’s disappointing, though perhaps not surprising, that Garcia needed to sue in order to protect herself and her rights.
But she has sued and, more than that, she’s shown that she is likely to succeed on her copyright claim, that she faces irreparable harm absent an injunction and that the balance of equities and the public interest favor her position. The district court abused its discretion in finding otherwise.
REVERSED AND REMANDED.
Notes
. Although Garcia’s suit also named the film’s producers, only Google, which owns YouTube, answered the complaint.
. The dissent suggests that we must defer to the district court’s statement that "the nature of [Garcia's] copyright interest is not clear.” But we defer to a lower court’s decision, not its equivocation.
It's worth noting what the district court’s three-page order doesn’t do: It doesn’t decide whether Garcia has a copyright interest in her performance, whether her performance is a "work,” whether Garcia is the "author” of her performance or whether her performance is a work for hire. Nor does it address the balance of the equities or the public interest, despite the fact that a district court must "weigh in its analysis the public interest implicated by [an] injunction, as Winter now requires.” Stormans, Inc. v. Selecky,
. Neither party raised the issue of whether the author of a dramatic performance must personally fix his work in a tangible medium. Because the question is not properly before us, we do not decide it. The parties are free to raise it in the district court on remand.
. Our decision today does not "read[] the authorship requirement out of the Copyright Act and the Constitution.” Dissent at 943. An author “in a constitutional sense” is one " ‘to whom anything owes its origin; originator; maker.’ ” Feist Publ’ns,
. Neither party claims that Garcia signed a work for hire agreement. In the district court, Google produced an agreement, purportedly signed by Garcia, that transferred all of her rights in her performance to the film’s producers. Garcia responded by submitting the declaration of a handwriting expert opining that Garcia’s signature had been forged. The district court didn't address the agreement or its authenticity.
. Construing such implied licenses narrowly would also undermine our joint authorship jurisprudence. Most actors don't qualify as joint authors. See Aalmuhammed, 202 F.3d at 1232-33. Yet, if any actor who doesn’t like the final version of a movie could keep it from being released, he’d have more control over the film than a joint author. See 1 Nimmer on Copyright § 6.10[A][l][a], at 6-36 (''[A] joint owner may exploit the work himself, without obtaining the consent of the other joint owners.”).
. Contrary to the dissent’s suggestion, Garcia's declaration doesn’t establish that the film has been "widely discussed and disseminated.” Dissent at 947. It states only that Garcia reached out to the media to let the world know that she ”d[id] not condone the film.” We reject the dissent’s uncharitable argument that Garcia should be penalized for attempting to protect her life and reputation by distancing herself from “Innocence of Muslims." We also reject Google’s preposterous argument that any harm to Garcia is traceable to her filing of this lawsuit. Any publicity generated by Garcia’s lawsuit is a necessary product of her attempt to protect herself and her legal rights after Google refused to do so.
. Concurrent with this opinion, we have issued an order directing Google to take down all copies of “Innocence of Muslims” from YouTube and any other platforms within its control and to take all reasonable steps to prevent further uploads. This temporary injunction shall remain in place until the district court is able to enter a preliminary injunction consistent with our opinion.
Dissenting Opinion
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.,
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.,
This standard’s importance must be appreciated in conjunction with the general standard with which this court reviews a district court’s decision to deny preliminary injunctive relief: “abuse of discretion.” Alliance for the Wild Rockies v. Cottrell,
Given this standard, the majority errs in requiring Google to pull the film from YouTube — at this stage of the litigation. The district court did not abuse its discretion in concluding that the law and facts did not clearly favor Garcia. Instead, the majority makes new law in this circuit in order to reach the result it seeks. We have never held that an actress’s performance could be copyrightable. Indeed, “[tjhere is little case law or statutory authority as to the position of performers as authors of an audiovisual work under U.S. law.” F. Jay Dougherty, Not a Spike Lee Joint? Issues in the Authorship of Motion Pictures under U.S. Copyright Law, 49 UCLA L.Rev. 225, 300 (2001).
II. Application of the Winter Factors
“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc.,
A. Garcia’s Likely Success on the Merits of Her Copyright Claim
The district court concluded that it was unclear whether Garcia had a copyright interest in her acting performance. The district court’s discretionary conclusion hardly appears illogical or implausible.
1. Copyright Interest
A protected interest under the Copyright Act must be an “original work[ ] of authorship fixed in any tangible medium of expression....” 17 U.S.C. § 102(a). Garcia does not clearly have a copyright interest in her acting performance, because (1) her acting performance is not a work, (2) she is not an author, and (3) her acting performance is too personal to be fixed.
a. Work
To be protected, Garcia’s acting performance must be a “work.” Id. Congress has listed examples of copyrightable works, like architectural works, motion pictures, literary works, and pictorial or sculptural works. Id. The nature of these works is significantly different from an actress’s individual performance in a film, casting doubt on the conclusion that the latter can constitute a work. See Microsoft Corp. v. C.I.R.,
Section 101 of the Act is also instructive, because it differentiates a work from the performance of it. It defines “perform a ‘work’ ” to mean “to recite, render, play, dance or act it.” 17 U.S.C. § 101 (empha
Consistent with section 101, section 102(b) outlines that which is not given copyright protection. It states: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” Id. 74-
In sum, a motion picture is a work. Id. at § 102(a). A segment independently produced and then incorporated into a motion picture is also a work. See, e.g., Effects Assocs., Inc. v. Cohen,
b. Authorship
Like the work requirement, the Copyright Act also premises copyright protection on authorship. 17 U.S.C. § 102(a). Authorship is also a constitutional copyright requirement. See U.S. Const. Art. I, § 8, cl. 8; Burrow-Giles Lithographic Co. v. Sarony,
The Aalmuhammed court explained that “[t]he word [author] is traditionally used to mean the originator or the person who causes something to come into being.” Id. at 1232. In other words, the author is the “person with creative control.” Id. Thus, “an author ‘superintends’ the work by exercising control.” Id. at 1234 (quoting Burrow-Giles,
In concluding that Aalmuhammed was not a joint author of the film, Malcolm X, the court found that he (1) “did not at any time have superintendence of the work,” (2) “was not the person “who ... actually formed the picture by putting the persons in position, and arranging the place,’ ” (3) could not “benefit” the work “in the slightest unless [the director] chose to accept [his recommendations],” and (4) made “valuable contributions to the movie,” but that alone was “not enough for co-authorship of a joint work.” Aalmuhammed,
Garcia’s contribution is less significant than Aalmuhammed’s. She conceded in her complaint and affidavit that she had no creative control over the script or her performance. Youssef provided the script, the equipment, and the direction. As a result, Garcia was not the originator of ideas or concepts. She simply acted out others’ ideas or script. Her brief appearance in the film, even if a valuable contribution to the film, does not make her an author. Indeed, it is difficult to understand how she can be considered an “inventive or master mind” of her performance under these facts.
The majority dismisses Aalmuhammed as inapposite, instead bolstering its conclusion with reference to acting manuals and treatises. See maj. op. at 934-35. In so doing, it goes too far in attempting to distinguish Aalmuhammed. First, the Aalmuhammed court articulated general principles of authorship that it pulled from the Supreme Court case, Burrow-Giles Lithographic Co. v. Sarony,
We hold that authorship is required under the statutory definition of a joint work, and that authorship is not the same thing as making a valuable and copyrightable contribution. We recognize that a contributor of an expression may be deemed to be the “author” of that expression for purposes of determining whether it is independently copyrightable.
Aalmuhammed,
Even the commentators agree that Aal-muhammed not only applies to Garcia’s claim, but also forecloses her realization of
The majority lauds an actress’s creative role in a film, maj. op. at 934, but the practical impact of its decision must not be ignored. Garcia’s role in the film is minimal. Yet the majority concludes that she somehow created a work Congress intended to protect under the Copyright Act. Considering the number of contributors who inject the same or a greater amount of creativity into a film, the majority’s omission of any inquiry into authorship indeed creates “an impenetrable thicket of copyright.” Maj. op. at 936. Meanwhile, though Aalmuhammed’s interpretation of the Copyright Act has been debated in academic circles, “it adopts a standard that promotes clarity in the motion picture industry.” Lee, Entertainment and Intellectual Property Law § 12:7.
Because Garcia does not qualify as an author under Aalmuhammed, the law and facts do not clearly favor protecting her acting performance under the Copyright Act.
c. Fixation
Lastly, the subject matter protected by the Copyright Act must also be “fixed in [a] tangible medium of expression....” 17 U.S.C. § 102(a). Copyright preemption cases are instructive on the question of fixation.
For preemption purposes, the courts generally agree that “the scope of the subject matter of copyright law is broader than the protection it affords.” Montz v. Pilgrim Films & Television, Inc.,
In Midler v. Ford Motor Co., Bette Mi-dler sued Ford for misappropriating her voice in a commercial.
Jules Jordan Video, Inc. v. 144942 Canada, Inc.,
The subject matter in Jules Jordan and Laws concerned entire copyrighted works — video and music recordings. Differently, Midler involved the imitation of a singer’s voice. Combined, these cases show that, just as the singing of a song is not copyrightable, while the entire song recording is copyrightable, the acting in a movie is not copyrightable, while the movie recording is copyrightable.
A musical recording involves many moving parts, including the tune, lyrics, instrumental musicians, vocalists, and a production team that edits and prepares the final song. While the ultimate product is copyrightable, Ninth Circuit precedent dictates that a vocalist’s singing of the song is not copyrightable. See Midler,
Just as “an actor does far more than speak words on a page,” maj. op. at 934, so too does a vocalist. Indeed, one might say that otherwise, “every schmuck” is a vocalist, “because everyone ... knows how to read.” Id. (quoting Sanford Meisner & Dennis Longwell, Sanford Meisner on Acting 178 (1987)) (quotation marks omitted). An actress like Garcia makes a creative contribution to a film much like a vocalist’s addition to a musical recording. Garcia did not write the script; she followed it. Garcia did not add words or thoughts to the film. She lent her voice to the words and her body to the scene. Her creativity came in the form of facial expression, body movement, and voice. Similarly, a singer’s voice is her personal mobilization of words and musical notes to a fluid sound. Inflection, intonation, pronunciation, and pitch are the vocalist’s creative contributions. Yet, this circuit has determined that such, though perhaps creative, is too personal to be fixed. See Midler,
Under this line of cases, an actress’s performance in a film is more like the personal act of singing a song than the complete copyrighted works in Laws and Jules Jordan. As a result, it does not seem copyrightable. Thus, the law and
Considering work, authorship, and fixation, Garcia has not demonstrated how the facts and law clearly favor her claim of a copyrightable interest in her acting performance.
2. Work for Hire Doctrine
Even if the majority were correct in finding a copyrightable interest 'in Garcia’s acting performance, preliminary injunctive relief would be unwarranted. The district court did not address the application of the work for hire doctrine. Yet, the law and facts do not clearly show that Garcia was not working for hire.
“In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title.... ” 17 U.S.C. § 201(b). “A ‘work made for hire’ is a work prepared by an employee within the scope of his or her employment....” Id. at § 101. Therefore, “[i]n determining whether a hired party is an employee under the general common law of agency, we consider the hiring party’s right to control the manner and means by which the product is accomplished.” Reid,
Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.
Id. at 751-52,
The work for hire doctrine “is important in the analysis of motion picture authorship because in the United States most contributions to a motion picture are created as works made for hire.” Dougherty, Not a Spike Lee Joint?, 49 UCLA L.Rev. at 238. Here, Garcia conceded in her complaint and affidavit that Youssef “managed all aspects of production,” controlling both the manner and means of making the film, including the scenes featuring Garcia. Further, this “central” factor is not the only one supporting a work for hire finding here. The bulk of the other factors also suggest that Garcia is an employee. Yous-sef provided the instrumentalities and tools, dictated the filming location, decided when and how long Garcia worked, and was engaged in the business of film making at the time. Additionally, Garcia did not hire or pay assistants. Contrary to the majority’s conclusion, maj. op. at 12-14, the facts and law do not clearly favor
In Reid, the Court decided a sculptor was not an employee, even though Community for Creative Non-Violence “directed enough of Reid’s work to ensure that he produced a sculpture that met their specifications.” Reid,
In sum, the majority gives zero deference to the district court’s position on the likelihood for success factor. To justify its opinion, the majority must show the district court abused its discretion in determining the law and facts did not clearly show Garcia was likely to succeed on the merits. This, the majority has failed to do.
B. Irreparable Harm
The district court decided that because “[t]he Film was posted for public viewing on YouTube” five months prior to Garcia bringing suit, she “has not demonstrated that the requested preliminary relief would prevent any alleged harm.” The majority has failed to demonstrate how the district court abused its discretion in so holding.
Indeed, the district court’s application of the law to the facts of this case here was not an abuse of discretion. A “[p]laintiffs long delay before seeking a preliminary injunction implies a lack of urgency and irreparable harm.” Oakland Tribune, Inc. v. Chronicle Publ’g Co.,
Further, by Garcia’s own admission, the film has been widely discussed and disseminated; Garcia admits in her affidavit that she “went public and advised the world through media that [she] did not condone the film.” Thus, while Garcia has provided undisputed evidence of past threats and injuries, she has failed to link her allegations of future harm to potential future viewings of the film on YouTube. See Perfect 10 v. Google, Inc.,
Therefore, it is not illogical or implausible to conclude that the law and facts do not clearly demonstrate how Garcia will suffer continued irreparable harm caused by the presence of the film on YouTube. See Small v. Operative Plasterers’ and Cement Masons’ Int'l Ass’n Local 200,
C. Balancing the Equities
When considering the propriety of preliminary injunction relief, “a stronger showing of one element may offset a weaker showing of another.” Alliance for the Wild Rockies,
However, the balance of the equities does not clearly favor Garcia. A court must “balance the interests of all parties and weigh the damage to each.” Stormans, Inc. v. Selecky,
Google argues that the balance of the equities does not clearly favor Garcia, because “[a] court order requiring removal from YouTube of the Film or any portion thereof would impose a substantial burden on free expression, without preventing any future harm to Appellant.” Garcia is only faced with potential infringement of her potential copyright interest pending a final disposition of this lawsuit. Further, she is not completely without fault in these circumstances. If she valued her acting performance to the extent she now claims, why didn’t she protect her performance by contract? The facts evidence that she acted for three days and was paid $500 dollars. Balancing the harm faced by both Garcia and Google, the law and facts do not clearly favor Garcia.
In its basis concerning the balance of the equities, the majority discusses Yous-sef s reproachable conduct. Maj. op. at 939. However, Youssef is not a party to this appeal, and Google was not a party to any of Youssef s actions.
Therefore, the balance of the equities does not clearly favor Garcia.
D. Public Interest
“In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.” Johnson v. Couturier,
The public’s interest in a robust First Amendment cannot be questioned. See Sammartano v. First Judicial Dist. Court,
But the case at bar does not present copyright infringement per se. Instead (in an unprecedented opinion), the majority concludes that Garcia may have a copy
Thus, the law and facts do not clearly demonstrate how granting a preliminary injunction in Garcia’s favor would serve the public interest.
III. Conclusion
The Stanley standard counseling extreme caution when considering granting a mandatory preliminary injunction is premised on principles of judicial restraint. Instead, the majority abandons restraint to procure an end (ordering the film be taken down) by unsuitable means (the Copyright Act).
. As this is the relevant standard of review, the district court’s application of it is hardly "equivocation.” See maj. op. at 933 n. 2. Furthermore, the amended portions of the majority opinion only confirm that the law and facts do not clearly favor Garcia: “Nothing we say today precludes the district court from concluding that Garcia doesn't have a copyrightable interest, or that Google prevails on any of its defenses.” Maj. op. at 935. Where the law and facts must clearly favor Garcia in order for her to prevail, the majority’s equivocation cements its error.
. The majority relies solely on a showing of originality to conclude Garcia has a copyrightable interest in her acting performance, maj. op. at 934 (citing Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,
. Furthermore, Garcia’s interest in her acting performance may best be analyzed as a joint work with Youssef, considering she relied on Youssef's script, equipment, and direction. See 17 U.S.C. § 101 ("A 'joint work’ is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.”).
. The majority opinion cannot coexist with this statement. See maj. op. at 934.
. The majority’s sole reliance on Feist Publications to conclude that an acting performance is copyrightable, maj. op. at 934-35, gives insufficient weight to the constitutional and statutory authorship requirement. In Feist Publications, the specific question was not of authorship but of originality. See
. The majority opinion dismisses the line of copyright preemption precedent. Maj. op. at 935 ("Midler isn’t a copyright case at all — it’s a right of publicity case that happens to discuss copyright in the context of preemption.”). However, these cases feature the same judges interpreting the same Copyright Act, whether the question is one of copyright infringement or copyright preemption. Thus, the majority’s distinction is without difference; it fails to overcome the fact that subject matter underlying a non-preempted state law claim, like that in Midler, is clearly without the Copyright Act’s protection. See Montz,
. This is not the case where an independently authored clip is used in a film, as in Effects Assocs.,
. The majority’s amended opinion also attempts to hedge its conclusion that Garcia has a copyright interest in her acting performance by avoiding counter arguments it failed to address, because they were not raised by the parties. Maj. op. at 935, 939. Yet, the majority could consider these arguments sua sponte "under exceptional circumstances, where substantial public interests are involved, or where to not do so would be unduly harsh to one or both of the parties.” United States v. Hoyt,
. While the majority may dispute which person was actually directing the film, it cannot overcome Garcia's own admissions in her complaint that substantiate these facts; she was not in control.