This opinion from the Ninth Circuit has created quite a stir and for good reasons, some of which are touched upon below.
Cindy Lee Garcia was cast in a minor role for a film with the working title "Desert Warrior," which she was told was an adventure film set in ancient Arabia. She received the four pages of the script in which her character appeared and was paid approximately $500 for three and a half days of filming.
But instead of being part of an Arabian adventure film, Garcia's scene (partially dubbed over) was used in the anti-Islamic film "Innocence of Muslims," which was posted on YouTube. As a result of her role in the film, Garcia received death threats. She took security precautions and filed multiple unsuccessful takedown notices under the Digital Millenium Copyright Act trying to get the video removed from YouTube.
Garcia filed a suit against Google and others (her amended complaint can be found here) and sought a temporary restraining order seeking removal of the film, claiming that posting the video infringed her alleged copyright in her performance in her scene.
The district court, treating Garcia's application as one for a preliminary injunction, denied it, concluding in part that she had delayed in seeking an injunction and that she was unlikely to succeed on the merits of her copyright claim because she gave the film's writer and producer an implied license to use her performance in the film. The district court's short decision can be found here.
In an opinion written by Chief Judge Kozinski, to which Circuit Judge Smith dissented, the Ninth Circuit reversed the district court, remanding for that court to enter a preliminary injunction. In the interim, the Ninth Circuit also issued a temporary injunction requiring Google to take down all copies of the film "from YouTube and any other platforms within its control and to take all reasonable steps to prevent further uploads."
In reversing the district court's denial of the preliminary injunction, the Ninth Circuit's majority opinion discussed two issues of particular interest: Garcia's claim of a copyright interest in her performance in the film (apparently consisting of a single scene) and the nature of the alleged irreparable harm that would result if the injunction based on her copyright claim wasn't granted.
As to the first issue, the Ninth Circuit concluded that the film wasn't a joint work of which Garcia was a joint author under the Copyright Act. But that didn't end the analysis because "a copyright interest in a creative contribution to a work [doesn't] simply disappear because the contributor doesn't qualify as a joint author of the entire work." Instead, as the majority opinion saw it, because Garcia's "artistic contribution" (i.e., her acting performance in the scene) was fixed, "the key question remains whether it's sufficiently creative to be protectible."
The Ninth Circuit concluded that Garcia's performance was sufficiently creative, rejecting Google's argument that she didn't make a protectible contribution to the film because the writer/producer wrote the dialogue, managed the production, and dubbed over a portion of her scene. The majority opinion characterized an actor's performance as "far more than speak[ing] words on a page," describing it as an "external embodiment" including "body language, facial expression and reactions to other actors and elements of a scene."
Relying on a Supreme Court opinion involving the copyrightability of telephone book white page listings, Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991), the Ninth Circuit--giving remarkably short shrift to a seemingly more complex question--concluded that Garcia's acting performance possessed the "minimal degree of creativity" necessary to be independently copyrightable.
After reaching this potentially broad conclusion--albeit only for purposes of deciding the propriety of preliminary injunctive relief in this case--the majority opinion attempted to limit it, concluding that Garcia granted the film's writer/producer a broad implied license to use her performance in the film. But despite emphasizing that such an implied license should be "construed very broadly," the use in this case exceeded the scope of the license by using it in the controversial "Innocence of Muslims" film when Garcia believed she would be appearing in an Arabian adventure film.
The second particularly interesting issue involved the requirement that Garcia demonstrate that irreparable harm would result if an injunction didn't issue. And more specifically, because the requested injunctive relief was based on her copyright infringement claim, she had to show that the harm alleged "is causally related to the infringement of her copyright."
The harm Garcia alleged, however, were the death threats she received, and presumably would continue to receive, which the majority opinion concluded was sufficient to justify a preliminary injunction on her copyright infringement claim:
[The film's writer/producer's] 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 Garcia's participation in "Innocence of Muslims" and not out of YouTube's continued hosting of the film. But Garcia has shown that removing the film from YouTube will help disassociate her from the film's anti-Islamic message and that such disassociation will keep her from suffering future threats and physical harm.
But while death threats certainly are a type of harm and even ignoring any issues as to causation, the Ninth Circuit never addresses the question whether it is the type of harm that was intended to be addressed by copyright law, or whether copyright law is the appropriate vehicle to address such harm.
Moreover, the majority opinion gives no meaningful attention to Google's First Amendment prior restraint argument, simply stating that the "First Amendment doesn't protect copyright infringement." In so doing, the opinion does not address the issue whether, by issuing an injunction requiring Google to take down the film and thereby stifling speech (even offensive, troubling speech), the injunction is contrary to the public interest.
The dissenting opinion--emphasizing that an abuse of discretion standard of review applied to the district court's decision--focuses largely on the majority opinion's conclusion that Garcia's acting performance was independently copyrightable, arguing that she did 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."
The dissenting opinion also takes issue with the majority opinion's analysis of the irreparable harm issue and notes the "public's interest in a robust First Amendment," an interest implicated by the injunction forcing Google to take down the film.
Whether one agrees or not with the dissenting opinion's reasoning on any or all of these issues, the opinion is well worth reading if only because it offers a more nuanced discussion of what would seem to be much more complex issues than is apparent from the majority opinion.
The case cite is Garcia v. Google, Inc., Appeal No. 12-57302 (9th Cir. Feb. 26, 2014).