*1 changing ongo- the content and context of Cindy GARCIA, Lee Plaintiff-
ing global discourse. The constitutional Appellant, by restoring violation is not cured access later, year long to the video well over a after the time when was most relevant to GOOGLE, INC., a Corpora- Delaware greatest the debate and of interest to the tion; YouTube, LLC, a California lim- public. liability company, ited Defendants-
Appellees, III. vitality “The political civil and institu Basseley Nakoula, Nakoula an individu- society depends tions our on free discus al, Bacile; Basseley aka Sam Mark .... speak freely sion and to Youssef; Basseley Nakoula; Abanob
promote diversity of
programs
ideas and
Nekola;
Hamdy;
Matthew
Ahmed
... one of the chief distinctions that sets
Nada;
Caresman;
Amal
Daniel K.
apart
regimes.”
us
from totalitarian
Ter
Kritbag Difrat;
Bushra;
Sobhi
Robert
miniello,
was vacated. reasons,
For foregoing respectfully I
dissent from our decision not to immedi-
ately rehear this case en banc on an emer-
gency basis.
D.C.; Art Karobonik, Neill and Teri New Rights, CA; Media Diego, San Erik Stall- man, Center for Democracy & Technology, D.C.; Washington, Band, and Jonathan Jonathan Band of Washington, PLLC *3 D.C., for Amici Curiae Electronic Frontier Foundation, American Civil Liberties Un- ion, Public Knowledge, Center for Democ- racy and Technology, New Rights, Media Library Association, American Association College Libraries, and Research and Association of Research Libraries. Gellis, Sausalito, CA, Catherine R. for 64, Inc., Amici Organiza- Curiae Floor and Armenta, M. Cris The Armenta Law tion for Transformative Works. ACP, CA; Angeles, Firm Los Credence Reeder, Sol, Garenne, France; Christopher Robins, Chauvigng, Kaplan, La S. and LLP, Bozeman, MT, CA; Armstrong, Angeles, Miller & Ciresi Los Jason for Plain- Kolcun, David Leichtman and Michael A. tiff-Appellant. Robins, LLP, Kaplan, Miller & Ciresi New Katyal, Christopher Neal Kumar T. York, N.Y.; Kathryn Wagner, Stacy and Handman, Perella, Dominic F. and Sean Lefkowitz, Hsu, York, and Kristine New Marotta, LLP, Hogan Lovells U.S. Wash- N.Y., for Amicus Curiae Volunteer Law- D.C.; ington, Timothy Alger and and Suni- Arts, yers for the Inc. Bali, LLP, Alto, CA, ta Perkins Coie Palo for Defendants-Appellees Google, Inc. and Bridges, Hayes, Andrew P. David L. YouTube LLC. Fritz, Kathryn Gregorian, J. and Todd R. LLP, Francisco, CA, Fenwick & West San Gratz, Page Joseph
Michael H. and C. Inc., for Amici Systems, Curiae Adobe Au- LLP, Francisco, CA, Tangrie Durie San tomattic, Inc., Facebook, Inc., Gawker Me- Netflix, for Amicus Curiae Inc. dia, LLC, Corp., Kickstar- IAC/Interactive Christopher Sprigman, Jon New York ter, Inc., Pinterest, Inc., Tumblr, Inc., and Law, University York, School of New Twitter, Inc. N.Y.; Newman, Christopher George Ma- Law, University Arlington, son School of Balasubramani, PLLC, Venkat Focal VA; Grannick, and Jennifer S. Stanford Seattle, WA; Goldman, Eric Santa Clara School, Stanford, CA, Law for Amici Curi- Law, Clara, University School of Santa ae Professors of Intellectual Property. CA, for Amici Curiae Internet Law Profes- sors. Schruers, D.C., Washington,
Matt for Computer Amicus Curiae & Communica- Law, Bostwick, Gary L. Bostwick Los Industry tions Association. CA; Lerner, Angeles, I. Intell. Jack UCI Ranieri, Clinic, Irvine, CA; Corynne McSherry Prop., Vera Arts & Tech. Foundation, Callif, Donaldson, Electronic + Frontier San Fran- Michael C. Donaldson cisco, CA; LLP, Hills, CA; Hauss, Beverly Lee D. Band- Rowland and Brian Lincoln Union, low, LLP, Gage Angeles, American Liberties Los Lanthrop Civil New & York, N.Y.; CA; Bar-Nissim, Siy Berg- Angeles, Sherwin and Rom John Los mayer, CA, Knowledge, Washington, Public for Amici Curiae International Docu- School, Los Association, Hughes, Loyola Law Independent, Film Justin
mentary CA, Amici Professors Angeles, Curiae Morgan Spurlock. Fredrik Gertten Hughes, Shyamkrishna Balganesh, Justin Laidman and Bren- Sager, L. Dan Kelli Menell, Pete and David Nimmer. Wright Tremaine Charney, Davis N. dan CA, LLP, for Amici Curiae Angeles, Los LLC; Times Communications Angeles
Los Company; Advance Scripps
The E.W.
Publications,. Inc.; The New York Times Post; the Re- Washington
Company; for Freedom of the
porters Committee Inc.; Radio, Press; National Public THOMAS, Before: SIDNEY R. Chief Association; Photographers Press National KOZINSKI, ALEX M. Judge, and *4 Newspaper Publishers Asso- the California McKEOWN, MARSHA S. MARGARET ciation; and the First Amendment Coali- RAWLINSON, B. JOHNNIE BERZON ' tion. CLIFTON, RICHARD R. CONSUELO SMITH, CALLAHAN, N. RANDY M. and Danielle Duncan Crabtree-Ireland MURGUIA, MARY H. MORGAN SAG-AFTRA, Lier, Angeles, Los S. Van WATFORD, J. CHRISTEN PAUL CA; Carpenter, Equity Thomas R. Actors’ Judges. Circuit N.Y.; Association, York, New Jennifer P. Garner, American Federation of Musicians MCKEOWN; Opinion by Judge Canada, of the United States and New WATFORD; by Judge Concurrence York, N.Y.; Luquer, Interna- Dominick by Judge Dissent KOZINSKI. Brussels, Actors, Bel- tional Federation Shaffir, Elichai for Al- gium; and Counsel OPINION Cinema, Television, and liance of Canadian McKEOWN, Judge: Circuit Artists, Toronto, Ontario, for Amici Radio Curiae Screen Actors Guild-Ameriean case, plea personal In this a heartfelt Radio Art- Federation of Television and protection juxtaposed with the limits ists; Association; Equity Ameri- Actors’ principles copyright law and fundamental can Federation of Musicians of the United speech. appeal The teaches sim- of free Canada; International Federa- States claim cannot ple lesson—a weak Actors; tion of Alliance of Canadian Cine- justify censorship- guise of author- ma, "Television, Artists; Equity and Radio ship. UK; Media, Entertainment and Arts Alli- accounts, By Cindy all Lee Garcia was (Australia ance-Equity Division & New trans- producer when a movie bamboozled Zealand); African of Ac- and South Guild acting performance formed her five-second
tors. proclama- video .part blasphemous into of a Michelman, Mohammed.1 Levy Prophet
Paul Alan and Scott tion jail in on unrelated Litigation Washing- producer Group, Public Citizen —now film, ton, D.C., a trailer of the uploaded for Amicus Public Citi- Curiae matters — Muslims, to YouTube. Mil- zen. Innocence of Table, http://www.loc. available at 1. We use the transliteration "Mohammed” manization spelling. parties this We tran- gov/catdir/cpso/roman.html, because both use an alternate that, according Library note to the American "Muhammad.” sliteration is Association-Library Congress Arabic Ro- online, medium,” in any tangible lions of viewers soon watched fixed 17 U.S.C. according 102(a), News outlets credit- Garcia. the mismatch between Garcia’s in ed the as a source of violence copyright claim and the relief sought, and Middle East. Garcia received death rejection Office’s of Garcia’s threats. application for a her brief performance, we conclude that the district in-
Asserting she holds court did not abuse its deny- discretion in fleeting performance, terest her ing Garcia’s request preliminary for the sought a preliminary requiring injunction. consequence, As a panel’s Google to remove the film from all of its mandatory injunction against Google was platforms, including YouTube. The dis- unjustified and is upon publica- dissolved injunction, finding trict court denied the opinion. tion of this likely Garcia did not establish success on the merits for claim. Background injunc-
Nor did she demonstrate that the
History
and Procedural
prevent any alleged
tion would
harm
July
Cindy
respond-
Lee Garcia
light
presence
of the film’s five-month
on
casting
ed to a
call for a film titled Desert
A
panel
Internet.
divided
of our court
Warrior, an action-adventure thriller
set
reversed,
labeled her copyright claim as
ancient Arabia. Garcia was cast in a cam-
debatable,”
“fairly
but then
a man-
entered
role,
eo
for which she. earned
She
$500.
*5
datory injunction requiring Google to re-
received
pages
and reviewed a few
of
injunction
move the film. That
was later
script. Acting
professional
under a
di-
.
limited to versions of
film featuring
rector hired to oversee production, Garcia
Garcia’s performance.
spoke two
George crazy?
sentences: “Is
it,
As Garcia characterizes
“the main
daughter
Our
a
is but
child?” Her role
issue in this case
involves
vicious fren- was to deliver those lines and to “seem[ ]
zy against Ms. Garcia that the Film caused
concerned.”
among certain radical elements of the
Garcia later
discovered
writer-dir
community.”
sympathetic
Muslim
We are
(a.k.a.
Basseley
rector Mark
Youssef
Nak-
Nonetheless,
to her
claim
plight.
Bacile)
Basseley
oula
Nakoula or Sam
had
against Google
grounded
in copyright
film in
different
mind: an anti-Islam
law,
distress,
not privacy, emotional
or tort
polemic renamed Innocence Muslims.
of
law,
impose speech
and Garcia seeks to
film, featuring
production,
a crude
copyright
restrictions under
laws meant to
as,
depicts
Prophet
among
Mohammed
repress
expression.
foster rather than
free
murderer,
things,
pedophile,
other
and
theory
can be
“copy-
likened to
producers
homosexual. Film
dubbed over
right cherry picking,” which would enable
replaced
Garcia’s lines and
them with a
any
designer
contributor from a costume
asking,
your
voice
“Is
a child
Mohammed
boy
down to an extra or best
to claim
appears
molester?” Garcia
on screen for
pieces
in random bits and
of a
only five seconds.
unitary
picture
satisfying
motion
without
requirements
Copyright
of the
Act.
call,
year
casting
Almost a
after the
Putting
Hollywood
aside the rhetoric of
uploaded
June
Youssef
a 13-minute-
dramatics,
hijinks and the dissent’s
this
trailer of Innocence
and-51-second
of
must be decided on the law.
case
YouTube,
video-sharing
Muslims to
Inc.,
light
by Google,
owned
which
Copyright
require-
Act’s
website
than one
“original
authorship
global
ments of
of
boasts
audience of more
work[ ]
a likelihood of
had “not shown
cause she
month.2 After was
per
billion visitors
Arabic,
September
the merits.” On
into
fomented
success on
translated
East,
voluntarily
and media
dismissed her
outrage across the Middle
Garcia
pro-
violent
linked it to numerous
reports
court suit.
state
subject
The film also has been
tests.
later,
turned to federal
day
Garcia
One
controversy
purported
over its
political
States
filed suit
United
court. She
11, 2012, at-
September
to the
connection
for the Central District
District Court
tack on the United States Consulate
Google and
again
named
California
Libya.
Benghazi,
alleged
Youssef as codefendants.
attack, an
Benghazi
after the
Shortly
infringement against both defen-
any-
cleric issued a fatwa
Egyptian
claims
revived her state law
dants and
Muslims,
with Innocence
one associated
fraud, unfair business
against Youssef for
Youth in Amer-
calling upon the “Muslim
libel,
and intentional infliction
practices,
director,
Europe” to “kill the
iea[ ]
emotional distress.
everyone
and the actors and
producer!,]
this film.” Gar-
helped
promoted
who
temporary
moved for a
re-
Garcia then
multiple death threats.
cia received
straining order and for an order to show
preliminary
cause on a
—but
Garcia asked
Legal wrangling ensued.
sought
claim.
on the
She
film, asserting
it was
Google to remove
hosting Innocence
Google
to bar
from
her
speech
hate
and violated
state
Google-
Muslims on YouTube or
other
privacy
and to control her like-
rights
run website.
Google
also sent
five take-
ness. Garcia
Digital
under the
Millenium
down notices
district,court
30, 2012, the
On November
Act,
claiming
U.S.C.
preliminary
Garcia’s motion for a
denied
YouTube’s
of Innocence
broadcast
matter,
court
injunction. As an initial
infringed
her
Muslims
not demon-
ha[d]
concluded
“Garcia
*6
performance.”
“audio-visual
dramatic
requested
the
relief would
strated
Google declined to remove the film.
harm,” because, by
any alleged
prevent
19, 2012,
September
Garcia first
On
had
on the
point,
trailer
been
Youssef,
Google,
sued
and other unnamed
for five months. Nor did Garcia
Internet
Angeles Supe-
in Los
production assistants
on the
establish a likelihood of success
complaint alleged
Her
a com-
rior Court.
particular,
In
the district court
merits.
wrongdoing
and assorted
pendium of torts
found that the nature Garcia’s
Google,
against
under California law. As
unclear,
could
interest was
and even she
privacy,
for invasion of
Garcia made claims
copyright,
granted
establish such a
she
light,
violating
pub-
false
and
her
implied
film directors an
license'
“dis-
licity.
brought
the same claims
She
performance as a contribution
tribute her
fraud, unfair
against Youssef and added
incorporated into the indivisible whole
slander,
practices,
business
and intentional
the Film.”
infliction of emotional distress. The state
panel
A divided
of our court reversed.
“tempo-
for a
court denied Garcia’s motion
a half
the film
year
More than a
after
rary restraining order and for an order to
panel majority
first
preliminary injunction,”
uploaded,
be- was first
show cause re
Statistics,
2015).
May
https://
2. See YouTube.com Press
visited
(last
www.youtube.com/yt/press/statistics.html
order, giving required
issued a secret
takedown
for a mandatory preliminary in-
Google twenty-four
junction
hours to remove all
because she
unlikely
was
to suc-
copies of Innocence Muslims from You-
ceed on her copyright claim.
Id. at 941
(N.R.
Google-controlled plat-
Smith,
Tube and other
J., dissenting). Specifically,
panel embargoed
forms. The
disclosure of Garcia
likely
was not
to prove
per-
until it
opinion.
order
issued its
“work,”
formance was a
nor would she
panel later amended the order to allow likely meet the copyright requirements of
post any
YouTube to
version of the film
fixation,
authorship and
among other
performance.
that did not include Garcia’s
shortcomings with her claim.
Id. at 946.
“[bjecause
sum,
In
the facts
do not
In its later-issued opinion,
panel
ma-
‘clearly favor’ issuing preliminary injunc-
jority reversed the district court and
Garcia,
tion to
the district court did not
granted
preliminary injunction.
'Garcia’s
abuse its discretion in denying Garcia’s
Inc.,
Google,
Garcia v.
requested relief.” Id. at 940.
Inc.,
Google,
amended
Garcia v.
(9th Cir.2014). Despite
F.3d 929
charac-
granted rehearing
We
en banc.3 Garcia
terizing
“fairly
Inc.,
claim
Google,
Cir.2014).
concluded that likely prevail Garcia was on her copyright claim as to her individual I. The District Court’s Decision Innocence Muslims. Garcia sued legal under a slew of theo- at F.3d contrast to the district ries, but she moved for a preliminary in- finding court’s factual of an implied license junction just on one of them: copy- Youssef, from Garcia to panel opinion Hence, right claim. is the held that the ran in opposite license appeal. basis for the allega- Garcia’s tort direction: implicitly granted ‘Youssef tions—and claimed harm resulting from perform [Garcia] license to his screen- torts, those such as emotional distress —do play,” and that Garcia grant did not Yous- figure analysis. into our implied sef an license to incorporate her begin We with the basics. performance into the film. Id. 935-38.
Finally, panel that, majority held be- The district denying court’s order her, cause of the death threats preliminary injunc Garcia’s motion for a Garcia had established irreparable harm tion is reviewed for abuse of discretion. equities and the public interest fa- Cottrell, Alliance the Wild Rockies v. *7 injunction. an vored Id. at 938-40. The (9th 1127, Cir.2011). 632 F.3d 1131 Be opinion did not address the First Amend- deferential, cause our review is will “[w]e consequences mandatory ment of the take- not ‘got reverse the district court where it injunction, down beyond stating that right,’ the law even we ‘would have First Amendment protect copy- does not result,’ long arrived at a different so as the right infringement. clearly district court did not err in its Judge (internal N.R. Smith dissented. He wrote factual determinations.” Id. cita omitted). that Garcia had not high met the burden tion tors; proceedings, organizations; nonprofit In connection with en banc we media and groups. received thirteen amicus helpful briefs from broad The briefs were under- to our array parties, including copy- of interested standing implications of this case from scholars; content, right and Internet law points In- various of view. We thank amici for service, technology providers; ternet and participation. ac- their 740 (and removing) keep action—to remove empha has Supreme Court an injunctions are Muslims from YouTube and preliminary Innocence
sized “extraordinary remedy auspices, never awarded under its whenever other sites 7, NRDC, 555 U.S. uploaded. v. right.” and whomever the was Winter (2008). 365, 24, 249 172 L.Ed.2d in mandatory 129 S.Ct. treated as a This relief is correctly identified that court junction, responsible The district it “orders a because ” satisfy must Winter’s four-factor Marlyn ‘take action.’ Nutraceu party to seeking preliminary' “A plaintiff ticals, test. Inc. v. Mucos Pharma GmbH & (1) likely that: is (9th Cir.2009) (cita must show she Co., 873, 571 F.3d (2) merits, likely is on the she omitted). to succeed cautioned, a tion As we have irreparable harm in the absence to suffer mandatory injunction “goes beyond well (3) relief, the balance of preliminary simply maintaining quo penden- the status (4) favor, injunc tips her equities particularly te lite disfavored.”4 [and] v. public is in the interest.” Farris tion Cal., 1313, Stanley v. 13 F.3d Univ. S.of (9th Cir.2012) Seabrook, 677 F.3d (9th Cir.1994) (internal omit citations Winter, (citing 555 U.S. S.Ct. ted). deny The “district court should such 365). clearly fa relief ‘unless the facts and law ” party.’ (quoting moving vor Id. The first factor under Winter is the States, Anderson v. United 612 F.2d on the important likely most success — (9th Cir.1979)). terms, man plain Obama, Aamer v. 742 F.3d merits. injunctions not datory should issue (D.C.Cir.2014) (“We begin with Apartment “doubtful cases.” Park Vill. important factor: whether first and most Trust, Tenants Ass’n v. Mortimer Howard have established a likelihood of petitioners (9th Cir.2011); 1150, 1160 636 F.3d merits.”). Because it is success on the “a inquiry, plaintiff threshold when has see, As we shall the district court did failed to show the likelihood of success on concluding not abuse its discretion in merits, we ‘need not consider the re likely not her Garcia was succeed on ” maining three Ass’ [Winter elements].’ n claim—much less that the law Que et du des Eleveurs de Canards d’Oies clearly compel suppression facts of a (9th Harris, bec v. 729 F.3d Cir. politically significant controversial 2013) (quoting Corp. DISH Network film. F.C.C., 771, 776-77 Cir. 2011)). A. doubly Garcia’s burden here is demand- question The central is whether the
ing: mandatory Because Garcia seeks a clearly law and facts favor Garcia’s claim injunction, she must establish the law acting in her five-second clearly position, and facts favor appears as it in Innocence likely simply that she is to succeed. Muslims. The answer is no. This conclu plaintiff sion does not mean that a like Why? requested injunc that she required Google options tion to take affirmative Garcia is without *8 last, quo gation Muslims was 4. "The status means the uncontested was Innocence of preceded pending viewing status which the controver uploaded on You to available for Dep’t sy.” N.D. ex rel. v. Haw. Parents by preliminary injunction Tube. The issued of Educ., 1112 n. 6 Cir. panel majority disrupted quo that status 2010) (internal quotation citation marks Google by ordering to remove the film. omitted). quo preceding The status this liti injunction against an sual sought categorized couldn’t have work as a motion theories, legal picture or on other and is parties different derivative of the script. right publicity of and defamation.5 Garcia is the author of like the none of this and copyright makes no claim to the film or to Act, “[cjopyright Copyright Under the Instead, script.6 Garcia claims that original subsists ... works of protection her performance five-second itself merits authorship any tangible fixed medium copyright protection. [including] pic- ... motion expression 102(a). scheme, § That fixation In the statutory tures.” U.S.C. face of this “by authority surprise must be done or under the comes as no during this liti- § gation, Copyright the author.” 17 U.S.C. 101. Bench- Office found that standard, statutory marked this was not a copyright- clearly rejected the law does not favor Garcia’s able work when it her position. application. Copyright The Office ex- plained that its “longstanding practices do left “works of purposefully The statute not allow a claim by an individu- provide for some authorship” undefined al actor or perform- actress his or her flexibility. Copyright See Nimmer on ance picture.” contained within a motion Nevertheless, § provi- 2.03. several other Thus, copyright registration pur- “[f]or An provide guidance. sions useful audiovi- poses, picture a motion is a single inte- sual work is one that consists of “a series grated Assuming work.... Ms. Garcia’s images intrinsically of related which are contribution was limited acting per- to her intended to be shown” machines or formance, register we cannot perform- equipment, plus “accompa- other electronic apart picture.” ance from the motion turn, § nying sounds.” 17 101. In U.S.C. picture” expert a “motion is an “audiovisual credit this opinion We of the consisting Copyright charged series of related Office—the office with work[] which, succession, images when shown administration and enforcement of the motion, an impart impression together registration.7 laws and See In- hale, sounds, Tobacco, Inc., accompanying any.” with Id. Inc. v. Starbuzz (9th Cir.2014). embody These two definitions work F.3d 1041-42 Copyright position here: Innocence Muslims is ah audiovi- Office’s well-reasoned road, twist, may pri- 5.Down have a also another odd one of Garcia’s signing claim. contract She recalls some mary objections falsely rests on the words document, though kind of she cannot find a dubbing. attributed to her via But cannot she copy. position We take no on this claim. Nor claim in words she neither au- perform- we consider do whether Garcia’s spoke. thored nor That leaves Garcia with a ance was a made hire. work for See beef, legitimate though and serious one § (defining made hire" U.S.C. "work that can be vindicated under the rubric of "prepared by employee as work within the copyright. or, scope employment" of his or her where parties sign agreement, both a work written notes, question 7. As Nimmer when "the “specially ordered commissioned ... as a or dispute copyrightabilty forms core part picture aof motion see also input Copy- parties, ... from the between hire, 201(b) (in case of work made for governmental agency that Office—the employer person for whom the work is special determining possesses expertise in author, prepared subject express is the copyright protection bounds of be [can]— otherwise). agreement pro- In district court great 2 Nimmer on value.” ceedings, parties disputed whether Garcia § 7.16[B][3][b][vi]. signed agreement, a work-made-for-hire appeal. the issue is not before us on *9 742 (internal 202 at 1233 in be useful.”9 F.3d ‘body experience of a
“reflects
omitted).
animating
marks
Our
quotation
and liti
to which courts
judgment
formed
”
of “work”
concern was
this definition
guidance.’
resort for
may properly
gants
protection for
Southco,
fragment copyright
would
Kanebridge Corp., 390
Inc. v.
banc)
(3d Cir.2004) (en
many
X
unitary film Malcolm
into
n. 5
F.3d
286
J.)
Hendon,
pieces:
little
(Alito,
Yates v.
541
(quoting
1, 3,
contributions theory law would unitary a interdependent parts of or legal morass we warned result whole,” “joint the work becomes work” splintering Aalmuhammed — with two or more authors. U.S.C. “works,” many movie into different even added). unequivo- (emphasis independent fixation. the absence of film. cally joint authorship of the disclaims claimed, put, Google as it Simply “make[s] copyrights.”. cheese of Swiss Aalmuhammed, we concluded Take, example, large mini- films with defining upon a “work” based “some proverbial ... “cast of thousands” creativity originality mal level of cast—the Rings.11 as Benr-Hur or Lord too broad and indeterminate to —such would be Although suggestion the ultimate issue in Aalmu- dissent's that this case is 8.The governed by Beijing Treaty pertained joint authorship, on somehow hammed misplaced. essential, is Se Audiovisual Performances just definition of "work” was as e present, treaty case, Dissent at 38-39. At is analysis. our to the 202 F.3d 1233- yet aspirational at best. It has to take effect 34; Metro-Goldwyn-Mayer see also Richlin because six countries have ratified or Pictures, Inc., Cir. treaty thirty acceded to the short of the 2008) —well (relying reasoning on Aalmuhammed in to enter into force. See World Intel needs authorship, the court must that to determine Organization, Summary Property lectual examined). determine the “work” to be first Beijing Treaty on Audiovisual Peiform (2012), www.wipo.int/ available at ances originated 10. The term "cast of thousands” treaties/en/ip/beijmg/summary_beijing.html referring Hollywood "[ajdvertising come-on 13, 2015). (last May Although the visited background players in a to the crowds of signed treaty United States it has epic Dictio- spectacular film.” Blumenfeld’s not been ratified the U.S. Senate. Article (Hal nary Acting and Show Business II, requires the Constitution Section 2009). Corp. Leonard majority concurrence of a two-thirds of that body. reference to the fact The dissent’s Ben-Hur, Ben-Hur, Office, 11. For information on see from the Patent and sheet Trademark IMDb, http://www.imdb.com/title/tt0052618/ Copyright legal which unlike the Office lacks (last 2015), and Ben-Hur: A visited Jan. interpret authority administer Christ, IMDb, Trivia, Act, http://www. similarly inapposite. Tale See (last visited ttOO Dissent at 751. imdb.com/title/ 16641/trivia *10 Assocs., a cast epic Ben-Hur advertised censes. See The silent 908 F.2d at Effects 125,000 Lord the people. Indeed, the of 559-60. the district court found of 20,000 tramped extras Rings trilogy, granted just Youssef such an alongside Frodo around Middle-Earth implied incorporate license to her per- Wood). by Elijah Treat- Baggins (played formance into the film.12 But legal these ing every acting performance as inde- niceties do not necessarily dictate wheth- logis- pendent work would not be er something protected by is copyright, nightmare, financial it would turn tical and licensing has its limitations. As film- mantra: cast of thousands into new warn, makers low-budget rarely films use copyright of thousands. if licenses. Even filmmakers diligently speculative hypotheti- spins The dissent set, everyone obtain licenses for on the copyright protection cals about for book contracts a panacea. Third-party are not outtakes, chapters, games, movie baseball distributors, content like YouTube and Hendrix concerts. See Dissent at Jimi Netflix, easy won’t have access to li- the 749-50, sounds a hyperbole 751. This censes; litigants may dispute their terms Substituting outrage alarm. moral false and scope; and actors and other content language legal analysis, and colorful contributors can terminate licenses after the dissent mixes and matches thirty years. five See U.S.C. works, concepts such as collective deriva- 203(a)(3). § Untangling complex, dif- works, fixation, requirement tive of ficult-to-access, and often phantom chain recordings. statutory The and sound defi- tens, hundreds, of title to or even thou- application preci- nitions and their counsel sands of standalone copyrights is a task sion, See, e.g., not convolution. U.S.C. that could tie the distribution chain in 101, 103, 114, §§ 201. The citation to Ef- knots. filming group And scenes like a Associates, Cohen, Inc. v. fects public parade, or the 1963 March on Cir.1990) (9th (Kozinski, J.), particu- is Washington, pose huge would burden There, larly puzzling. party neither dis- each of the thousands of marchers could puted plaintiffs copyright, and the independent claim an copyright. plaintiff independently special- fixed the footage effects and licensed it to the film- yet claim faces anoth- makers. id. at 556 n. 2 See statutory er barrier: She never fixed her medium, in a acting performance tangible reality
The
is that contracts and the
(“A
§
required by
as
17 U.S.C.
work is
govern
work-made-for-hire doctrine
much
tangible
expression
‘fixed’ in a
medium of
Hollywood
big-budget
copy
phono-
when its embodiment
or
production
world. See 1 Nimmer on
6.07[B][2],
record, by
authority
Absent these for-
or under the
author,
malities,
implied
sufficiently permanent
courts have looked to
li-
or stable
jan. 30, 2015).
implied
per
For information on Lord
non-exclusive
license to use her
Rings,
Rings:
see Lord
The Fellow
Although
formance in the film.
Garcia asked
IMDb,
ship
Ring,
http://www.imdb.com/
content,
Youssef about Desert Warrior’s
she in
Jan. 21,
(last
2015),
visited
title/tt0120737/
way
perform
no
conditioned the use of her
Rings:
Fellowship
and Lord
representations.
ance on
On this
Youssef's
Trivia,' IMDb,
Ring,
http://www.imdb.com/
record, we
cannot disturb
district court's
(last
visited Jan.
title/tt0120737/trivia
finding
clearly
erroneous. Pom Wonderful
2015).
Hubbard,
F.3d
LLC v.
1122-23
Cir.2014)
aside,
(noting
findings
that factual
re
Any copyright
claim
the district
error).
granted
court found that Garcia
Youssef a
viewed for clear
danger Garcia claims cannot be dis-
grave
perceived, reproduced,
*11
it to be
permit
and
the entire lawsuit.
permeates
counted
period
for a
otherwise communicated.
duration.”) (emphasis
transitory
more than
blush, irreparable
At
harm looks
first
Court,
added). According
Supreme
to the
strongest argument. Garcia
like Garcia’s
actually cre
party who
author is the
“the
seriously
fatwa
understandably takes
is,
work,
person
who
that
ates the
family,
and
and threats
her
fixed, tangible
into a
an idea
translates
difficulty
do we. The
with Garcia’s
and so
copyright protec
expression entitled
claim is that there is a mismatch between
Non-Violence v.
Creative
Cmty.
tion.”
claim
copyright
her substantive
2166, 104
730, 737, 109
Reid,
S.Ct.
remedy through an
dangers
hopes
490 U.S.
she
(1989).
nothing preliminary
Garcia did
in-
injunction.
L.Ed.2d 811
Garcia seeks
law,
copyright
privacy,
junction under
the sort.13
fraud,
light
any
or
other
false
tort-based
worse,
or for
Youssef
his
For better
Hence,
harm
cause of action.
Garcia’s
crew “fixed” Garcia’s
copyright namely,
from
harm
must stem
—
medium,
film
physical
tangible
whether
an
legal
to her
interests as
author. Salin-
might
However one
digital
or in
form.
(2d
68,
Colting,
v.
607 F.3d
81 & n. 9
ger
performance,
she
characterize Garcia’s
Cir.2010) (“The relevant harm is the harm
this,
top
role in fixation. On
played no
parties’ legal
that
... occurs to the
inter-
agreed
that she never
to the
Garcia claims
...”).
ests.
rendition
how she
film’s ultimate
was
or.
un-
Looking
purpose
copyright
to the
Muslims,
in Innocence
so she
portrayed
disjunction
Garcia’s case
derscores
hardly argue that
or her
can
of the
presents. Article
Section 8
U.S.
“by or under [her]
cameo in it was fixed
provides
copyrights “pro-
that
Constitution
authority.” 17 U.S.C. 101.
Progress of Science and useful
mote the
sum,
no
In
the district court committed
Hence,
the “Framers
intended
arts.”
analysis.
Issuance
error in its
engine
itself to be the
of free
mandatory
preliminary
of the
By establishing a marketable
expression.
fairly
requires
possible
more than
copy-
expression,
to the use of one’s
claim;
requires
showing
debatable
economic incentive to
right supplies the
“clearly
Garcia. See
favor[s]”
Harper
and disseminate ideas.”
&
create
Stanley,
stance with a II. The Panel’s court could consider collateral conse- February panel majority In quences part irreparable of its harm injunction: following “Google, issued the analysis remedy. and U.S.C. copies Inc. shall take down all of ‘Inno- injunc- (providing may grant that the court and cence of Muslims’ from YouTube.com may to pre- tions “as deem reasonable Google’s any platforms from other under infringement copy- vent or restrain control, steps and take all reasonable right”). But such a case is not before us. prevent uploads further of ‘Innocence after, injunc- platforms.”
Garcia waited months to seek an
Muslims’ to those
Soon
up-
panel
tion after Innocence Muslims was
amended the order
state
2012;
post-
July
prohibition
preclude
loaded to
she did the
did “not
YouTube
of ‘Innocence
emergency
ing
display
not seek
relief when the film
version
Cindy
infringement
least
on
does not include
tolerable
First
of Muslims’
NBC,
rights,”
performance.”
Amendment
Hunt
Lee Garcia’s
(9th Cir.1989) (citation
F.2d
omit-
more
first order was
Although the
ted), and Garcia cannot overcome the his-
cast the court
the second
sweeping,
heavy presumption against
torical and
The amend-
film editor.
uneasy role of
such,
restraints with a thin
claim
au-
Google
assumed
ment
mattered
in a
performance.
five-second
the content of someone
thority
change
film. To no one’s sur-
copyrighted
else’s
The amended
issued Febru-
the same:
the end result was
prise,
ary
immediately
2014 is dissolved
You-
film remained removed from
entire
has no force or effect.
Tube.
order was unwarranted
The takedown
Conclusion
law,
as a matter of
as we
and incorrect
stage
proceedings,
At this
of the
we
gave
It
short
explained
have
above.
also
question
have no reason to
Garcia’s claims
to the First Amendment values
shrift
duped by
unscrupulous
that she was
mandatory injunction censored
stake. The
greatly
filmmaker and has suffered
from
significant
suppressed
politically
her disastrous
with the
association
Inno-
upon
unprece-
a dubious and
film—based
Nonetheless,
film.
cence Muslims
doing,
theory
copyright.
dented
so
court
district
did
abuse its discretion
public
ability
panel deprived
pre-
it denied Garcia’s
for a
when
motion
firsthand,
judge
for them-
to view
liminary injunction
the copyright
under
*14
selves,
an
a film at the center of
interna-
laws.
tional uproar.
AFFIRMED.
copy
Although the intersection between
Amendment is much-
right and the First
WATFORD,
concurring
Judge,
Circuit
debated,14
that
Supreme
Court teaches
in
judgment:
immune
“categorically
is not
craft
rules of
don’t. have to
new
We
Amend
challenges
from
under the First
appeal.
copyright law to resolve this
We
Eldred,
123 S.Ct.
ment.”
537 U.S.
just have to follow the law we established
omitted).
(internal citation
To be
controversy, on the
years ago,
few
without
sure,
garden-variety
not a case of
this is
majori-
subject
irreparable
harm. The
seeking
such as
copyright infringement,
my
in
ty’s decision to do more is a mistake
copyrighted computer
the use of
restrain
view,
what
just
and not
much of
because
of a
panel’s
code. The
takedown order
may
majority says
about
public
film of
interest to the
is
substantial
at 749-51. We are
wrong.
be
See Dissent
prior
speech.
restraint of
Alex
classic
no more
usually well advised to decide
States,
544, 550,
ander v.
509 U.S.
United
to,
resolving rou-
(1993)
than
even when
we need
125 L.Ed.2d
S.Ct.
likely
of those we’re
appeals typical
tine
restraining
per
orders and
(“Temporary
should be all the
in the future. We
see
court orders that
injunctions
i.e.,
manent
—
resolving
appeal
more cautious when
actually
speech
forbid
activities—are clas
restraints.”).
one,
more
that could not be
like this
case
Prior
examples
prior
sic
infringement
far as
atypical
and the
as
pose
restraints
the “most serious
Volokh,
Bauer,
See,
(2010);
Lemley
Eugene
e.g., Joseph
Mark A.
&
P.
Comrades, Combatants,
Injunctions
Speech
in Intellec-
Freedom
the First Amendment:
Cases,
(1998).
Allies?,
Uneasy
Property
48 Duke L.J.
67 Wash. & Lee L.Rev. 831
tual
undoubtedly
film
re-
The
will
highly charged
that is
YouTube.
one
go and
actions
main accessible on the Internet for all who
the risk of
boot. Because
sides to
on both
longer
if YouTube no
wish to see it even
is
in these circumstances
making bad law
requested
hosts it. Bottom line: Garcia’s
should aim to decide
high, we
particularly
change
anything
won’t
about the
can, leaving the task of
narrowly we
as
as
part,'
content of the
or the
however
in
rules for a case
new
crafting broad
limited,
played
making.
she
its
necessary to do so.
actually
it is
which
Schauer, Do Cases Make
See Frederick
course,
in making
Garcia’s role
Of
Law?,
L.Rev.
73 U. Chi.
Bad
completely
film has been
misunderstood.
(2006).
actually
of-
highly
never
uttered
She
speaks
words her character
fensive
here,
narrowly
to decide
we chosen
Had
film.
had no idea that the scenes
She
affirmed the district court’s
have
we could
appeared would later be used as
which she
injunction by focus-
preliminary
of a
denial
diatribe,
an anti-Islam
and she
part of
irreparable
prong.
harm
ing solely on
message.
the film’s
Cor-
strongly opposes
showing
burden of
bore the
Garcia
misperceptions might well
recting these
injury
likely
is
in the absence
“irreparable
the threat Garcia
eliminate or reduce
injunction. Winter v.
requested
of’ the
faces,
already
has
taken numerous
but she
Council, Inc., 555 U.S.
Natural Res. Def.
just
publicly
that. She has
steps to do
7, 22, 129
The
work,
copyright
footage
a
interest in the
every
then
take
retained
is not a
cia’s scene
of,
it
of
film.
Rings
though
part
even
became
every
say, Lord
of
scene
of
556-58;
Ries,
work,
by Id. at
see also Oddo v.
protected
a
and thus not
(9th Cir.1984).
F.2d
633-34
The ma-
clips
unless and until the
be-
copyright,
jority
distinguish
If
tries to
Associ-
the final movie.
some
part
come
Effects
by arguing
footage
were to run off ates
that the
there was
dastardly crew member
Morannon,
separately
that
work[ ]
[was]
the Battle of
“standalone
copy
with
Maj
display
incorporated
free to
it for
fixed and
into a film.”
dastard would be
Op.
performance
final
744 n. 13. But Garcia’s
part
until it was made
profit
course,
take-outs,
And,
“separately
incorporat-
fixed and
the was also
movie.
scenes,
Why
special
effects never
ed into” Innocence Muslims.
then
alternative
used,
things
“featuring great gobs
all
those
would be fair
are the seven shots
things
yogurt oozing
none of these
would of alien
out of a defunct
game because
in
majority’s
factory” interspersed
Stuff,
under the
definition.
The
be “works”
559, any
chapter
about a draft
of a novel? F.2d at
more a “standalone work”
And what
chapter
performance?
in
than
copyright
Is there no
the draft
Garcia’s
Youssef
gets
published
required
any part
included in the
wasn’t
to use
unless
film;
in
part
gets
of the draft
includ-
he could have
book? Or
ed,
clip
no
in the rest of it?
sold the video
to someone else. The
is there
clip might not have had much commercial
proposition,
This is a remarkable
value,
special
but neither did the
effects
majority
remarkably
provides
which the
Nothing
scenes in
Associates.
Effects
Lee,
authority.
little
Aalmuhammed v.
says
special
Act
effects
(9th Cir.2000),
case
scenes are “works” entitled to
cites,
just
majority
says
oppo-
that the
protection but other scenes are not. And
Aalmuhammed,
site.
we considered a
what about scenes that have actors and
claim a contributor to the movie Mal-
special effects? Are those scenes entitled
joint
colm X that he was a
author of the
(as
protection
Asso-
Effects
Everyone
entire movie.
Id. at 1230.
),
they
are
copyright pro-
ciates
denied
agreed
Aalmuhammed
the relevant
tection like Garcia’s scene?
X.
only question
“work” was Malcolm The
joint
was whether the contributor was
II
author of that
went out of
work. We
our
way
emphasize
joint authorship
majority
of a
A. The
also seems to hold
question”
movie is a “different
from that Garcia is not entitled to
protection
whether a contribution to the movie can be
because she is not an author of
102(a).
According
“work” under section
Id.
1233.
the recorded scene.
to the ma-
clearly
jority,
And we
stated that a contribution
Garcia can’t be an author of her
(and
copyrightable
“played
to a movie can
no
be
thus
own scene because she
role
“work”).
performance’s]
Maj. Op.
can be a
Id. at 1232.
fixation.”
[her
majority’s newfangled
definition of
directly contrary
quarter-
performer
operate
“work” is
to a
But a
need not
*17
century-old precedent
recording equipment
that has never been
to be an author of his
Associates,
questioned,
H.R.Rep. No. 94-
performance.
Inc. v. Co own
See
Effects
hen,
Cir.1990). There,
(1976);
94-473,
S.Rep.
at
No.
at
751
job
gives
away
to 2-178.5.
them.
It’s not our
to take
§
at 2-178.4
right
2.10[A][3]
all that ex-
performance,
performers
rights
from
Congress gave
Garcia’s
Without
script
convert the
script.
was a
To
isted
acquire
copy-
them. Did Jimi Hendrix
no
video,
needed to be both
into a
there
right
recordings
of his concerts be-
film-
performing it and
physically
actor
run
cause he didn’t
the recorder in addi-
performance.
Both
recording
makers
playing
guitar?
may
tion to
Garcia
in copyrighta-
can result
kinds of activities
not be as talented as Hendrix —who is?—
Copy-
1 Nimmer on
expression.
ble
See
but she’s no
protec-
less entitled to the
(discuss-
2-171
§
at 2-165 to
right
2.09[F]
Act.
Copyright
tions of the
Orioles,
Major
Inc. v.
ing Baltimore
Copyright
B. While the
Office claims
Ass’n,
Players
805 F.2d
League Baseball
“longstanding practices”
that its
don’t rec-
(7th Cir.1986)).1
performance
Garcia’s
663
interest,
ognize
degree
at
“some minimal
of crea-
had
least
Register
Copy-
doesn’t seem that the
script
from the
and Youssefs
tivity” apart
rights got
Register
the memo. The
was a
Feist,
at
111
direction. See
499 U.S.
delegation
signed
member of the U.S.
always
“[pjersonality
One’s
S.Ct. 1282.
Beijing Treaty
on Audiovisual Per-
something unique.
expresses
It
contains
Office,
formances.
Copyright
See U.S.
handwriting,
and a
singularity
its
even
Annual Report
Register
Copy-
in it
very
grade
modest
of art has
some-
(2012).
Treaty
rights
recog-
8
would
thing which is one man’s alone.” Bleistein
rights in
performance.
nize Garcia’s
Co.,
Lithographing
v.
188 U.S.
Donaldson
provides
“performers”
It
have the
(1903).
239, 250,
298,
ment of
§
Copyright
if it
that the Nimmer on
at 6-
sign
6.07[B][2]
it would
on
believed
6-29;
Patry, Patry
F.
key
are inconsistent
28 to
William
on
Treaty’s
provisions
(2010).
fact,
In
of the
Copyright
law.
5:17
And most
with U.S.
Treaty
performers
through
as “an
that fall
the cracks
Copyright
praised
Office
protecting
given
implied
in
be found to have
an
important step forward
would
producers
and film actors
license to the film’s
to use the
performances of television
Copyright
the world.” U.S.
contribution in the ultimate film.
throughout
See Ef-
Associates,
Office,
Very
at
Beijing
NewsNet:
Audiovisual
fects
(2012),
all,
at
Treaty
http://
performers
few
would be left to sue
Performances
Ex-
have to
copyright.gov/newsneV2012/460.html.
and the ones
remain would
suing
They
in
worth their while.
cept
the Ninth Circuit.
find
be able to claim the valuable
wouldn’t
Copyright
position
The
Office’s
is thus
movie,
joint
rights
authorship
And,
event,
any
at best.
in
inconsistent
an undivided share in the movie
such as
Copyright
reasoning
neither the
Office’s
right
exploit
or the
the movie for
authority
nor the
it relies on
its letter to
Copyright
themselves. See Nimmer on
any
majority’s.
than
Garcia fare
better
Rather,
§ 6.08 at 6-34 to 636.
their
copy-
Copyright
The
Office would refuse
copyright claims would be limited to the
an actor
right registration to
like Garcia
original expression they created. See
“an
an
in a
because
actor or
actress
motion
Aalmuhammed,
1232;
202 F.3d at
Effects
joint
author in
picture is either
the entire
Associates,
and distributors will claim that the majority doomsday credits might in that sky falling recognize cases claims at expense property rights copyright an individual contributor’s inter- that Congress created. Its new standard They est in material he created.2 will artificially rights by shrinks authorial hold- here, always say, says Google hold- ing performer that a must personally rec- ing in the contributor’s favor will make ord his creative in expression order to copyrights. Maj. Op. cheese” of “Swiss it, any copyright retain in spec- interest 742. ulating contrary that a might rule curb law, But under our the cre- filmmaking and internet. But burden.the original, copyrightable ators of material our in place has been for over a automatically acquire a copyright interest year; reports of the internet’s demise have in the material as soon as it is fixed. greatly exaggerated. been For the reaT exception There’s no for material created majority opin- sons stated here and during production of a film or other com- Inc., 929, Google, ion Garcia v. works, posite work. When modern such (9th Cir.2014), 933-36 I conclude that Gar- plays, produced, as films or are contribu- likely cia’s claim is to succeed. separate, tors will often create copyrighta- I’d also find Garcia has made an part process. ble works as Our ample showing irreparable harm. It’s says in- that’s at at stake. See id. 938-39. initially terests this material vest with life creators, leverage its who will then have compensation by an-
obtain contract. The bugbear
swer to the cheese” “Swiss isn’t limit can acquire copy-
for courts to who
rights simpler order to make life for
producers providers. and internet service parties rights
It’s for the to allocate their Associates,
by contract. See Effects Google
F.2d at 557. makes oodles of dol- by enabling upload
lars
its users to
almost
Community
"employee.”
Computer
2. Ditto in
Creative Non-Vio-
tion of
Brief of the
&
for
Reid,
Equipment
et
lence v.
490 U.S.
109 S.Ct.
Business
Manufacturers’ Ass'n
4-5,
(1989),
Cmty.
Support
L.Ed.2d
which
al. in
at
concerned
Petitioners
Reid,
scope
made
Id. at
Creative Non-Violence v.
490 U.S.
“work
for hire.”
(1989) (No.
representing, among