much-anticipated en banc review of Garcia v Google was released
on Monday, with the result a reversal of last
February’s controversial opinion from Judge Alex
Kozinski of the Ninth Circuit.
Judge Margaret McKeown made the majority’s view
in the first paragraph of the majority opinion: "In this
case, a heartfelt plea for personal protection is juxtaposed
with the limits of copyright law and fundamental principles of
free speech. The appeal teaches a simple lesson – a
weak copyright claim cannot justify censorship in the guise of
A movie producer transformed Cindy Lee Garcia’s
five-second acting performance for a film titled Desert Warrior
into part of a blasphemous video proclamation against the
Prophet Mohammed. Innocence of Muslims was credited as a source
of violence in the Middle East, and Garcia received death
The en banc court held that the district court did not abuse
its discretion in denying Garcia’s motion for a
mandatory preliminary injunction because the law and facts did
not clearly favour her claim to a copyright in her acting
performance as it appeared in Innocence of Muslims. The en banc
court credited the expert opinion of the Copyright Office,
which had refused to register Garcia’s performance
apart from the film. The en banc court also held that in the
context of copyright infringement, the only basis upon which
the preliminary injunction was sought, Garcia failed to make a
clear showing of irreparable harm to her interests as an
The reversal received warm praise.
proclaimed it a victory for free speech.
"The opinion makes short work of the original copyright
analysis, noting that, for better or for worse, the filmmaker
created the only copyrightable work at issue," said EFF.
"Indeed, the opinion observes, 'treating every acting
performance as an independent work would not only be a
logistical and financial nightmare, it would turn cast of
thousands into a new mantra: copyright of
The foundation also noted the court said that Garcia cannot
show irreparable harm of the type that copyright law
Matt Schruers at the Disruptive Competition Project
in a blog post welcomed the rejection of an effort to use
copyright to suppress the distribution of a controversial
"The court’s opinion today recognized that the
plaintiff could not and did not have a copyright in her
five-second, otherwise-unfixed performance," he said. "As the
court put it, the activities surrounding Garcia’s
unwitting participation in the film may leave her 'with a
legitimate and serious beef, though not one that can be
vindicated under the rubric of copyright.’ (A
released today observed that compelling YouTube to take
down the video based on threats was a prior restraint of speech
prohibited by the First Amendment.)"
The Art Law Report blog declared "order restored".
"This case reminds me in many ways of the Jenack
case (concerning disclosure of the seller in an auction under
New York law), in that it created an interregnum that no one
expected and which threatened to upend he status quo," wrote
Sullivan & Worcester partner Nicholas
in a post on the Art Law Report blog. "Those expectations
have now been restored."
However, some bemoaned the long time it took for the Ninth
Circuit to come to a conclusion most viewed as obvious.
"It’s now 15 months later, and the Ninth Circuit
has finally issued its decision – a ruling that
experts had been anticipating from day one," wrote Tom Rubin
in a blog post for the Center for Internet and Society at
Stanford. "The court may have reversed its injunction, but at
this late date it cannot undo the damage that was done to our
Constitution. The First Amendment was left to atrophy while the
clock ticked away."
Rubin noted that Judge Reinhardt in a separate opinion had
called his court’s lack of urgency "violence done
to the First Amendment." Judge Reinhardt said "the exercise of
freedom that was lost pending en banc proceedings cannot be
But not all were cheering. Judge Kozinski stuck to his guns.
In a strongly-worded dissent he said his order should not have
"Garcia’s dramatic performance met all of the
requirements for copyright protection: It was copyrightable
subject matter, it was original and it was fixed at the moment
it was recorded. So what happened to the copyright?" he asked.
"At times, the majority says that Garcia’s
performance was not copyrightable at all. And at other times,
it seems to say that Garcia just didn’t do enough
to gain a copyright in the scene. Either way, the majority is
wrong and makes a total mess of copyright law, right here in
the Hollywood Circuit."
Foley & Hoag partner David Kluft has a good round-up of
the en banc opinion
on the Trademark & Copyright Law blog. He also notes
that this may not be the last we hear of the case.
"This may be the end of the line for Garcia’s
attempts to take down the video, but we’ve thought
that several times before," wrote Kluft. "Garcia still has the
right to seek a rehearing (within 14 days) and/or to file a
petition for a Writ of Certiorari with the Supreme Court of the
Sullivan & Worcester partner Nicholas
O’Donnell also noted this. "Interestingly, while
the result certainly telegraphs the probable outcome of the
case, the appeal concerned only the injunction," he said. "I
would certainly expect the defendants to move to dismiss
relying on this opinion, but the case is not actually over
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