Garcia v. Google - 9th Circuit En Banc Video of Oral Arguments -UPDATED

Garcia v. Google, Inc. (Innocence of Muslims) Oral Arguments En Banc 12/15/14

UPDATED 5/19/15

On May 18, 2015 the Ninth Circuit Court of Appeals sitting en banc affirmed the district court’s denial of Cindy Lee Garcia’s motion for a preliminary injunction requiring Google, Inc., to remove the film Innocence of Muslims from all of its platforms, including YouTube.

Garcia’s theory can be likened to copyright cherry picking.
— En Banc Opinion

This decision dissolved the prior Ninth Circuit three-judge panel’s amended takedown injunction against the posting or display of any version of Innocence of Muslims that included Garcia’s performance. The en banc court held that the injunction was unwarranted and incorrect as a matter of law and was a prior restraint that infringed the First Amendment values at stake.

While Garcia argued she owned a copyright interest in her individual performance, the Court explained "Garcia's theory can be likened to 'copyright cherry picking,' which would enable any contributor from a costume designer down to an extra or best boy to claim copyright in random bits and pieces of a unitary motion picture without satisfying the requirements of the Copyright Act."

Keep reading for more on the historical background.

En Banc Opinion:  Garcia v. Google, Inc., No. 12-57302, (9th Cir., opinion Issued  May 18, 2015).

3 Panel Opinion:  Garcia v. Google, Inc., 766 F. 3d 929 (9th Cir. 2014).

More court documents curated by the Electronic Frontier Foundation.

Original Post - Does an actor own the copyright in her performance?

Does an actor own a separate copyright in his or her acting performance?  That's the long and the short of what is being argued before the Ninth Circuit Court of Appeals. 

The facts of the case are distressing as the actress in question was tricked.  She signed a waiver and release to act in a movie named the "Desert Warrior."  She realizes after a 15 minute video goes viral and she receives death threats, that her performance was actually included in the film "The Innocence of Muslims."

Suing Google

She files a lawsuit against Google, Inc. in 2012 after they refused to take down the video from YouTube.  In 2014, the district court denied Garcia an injunction because the said she held no copyright in her performance.  Simply put, a prior case, Aalmuhammed v. Lee, held that a film is to be treated as a unitary whole and there's no individual copyright protection in the performance.

The Ninth Circuit disagreed in February 2014 and granted Ms. Garcia her relief to get the video off YouTube. There were multiple amendments to the opinion between February and November with the lead judge of the three-judge panel stating "an actor's performance, when fixed, is copyrightable if it evinces some minimal degree of creativity."

Bad Facts Can Make Bad Law

This case is tough because it seems the threats against Ms. Garcia's life were, and continue to be, very real.  But, is this a situation where bad facts make bad law?  Can an actor really own a separate copyrightable performance from the whole of a film?

As of Monday, December 15, 2014 the case was heard by all of the Ninth Circuit Court of Appeals judges. 

Take some time to watch the hearing and let me know what you think in the comments.