In an opinion issued on May 18, 2015, the U.S. Court of Appeals for the Ninth Circuit has upheld a federal district court’s denial of an actress’s motion for a preliminary injunction that would have required Google to remove the film “Innocence of Muslims” from Youtube. 

The actress, Cindy Lee Garcia, alleged that a movie producer transformed her five-second acting performance into part of a blasphemous video proclamation against the Prophet Mohammed. Garcia claimed that she faced a risk of death as a result of a fatwa issued against her. 

In the majority opinion that was authored by Judge M. Margaret McKeown, the case was characterized as a “heartfelt plea for personal protection” that was “juxtaposed with the limits of copyright law and fundamental principles of free speech.” The court concluded, however, that Garcia failed to make a clear showing of irreparable harm. The majority opinion observed that Garcia’s theory of copyright law - splintering a movie into many different "works," even in the absence of an independent fixation - would make “Swiss cheese” of copyrights. The majority opinion also noted that Garcia never fixed her acting performance in a tangible medium as required under the Copyright Act. 

In a concurring opinion, Judge Paul J. Watford observed that the court should have decided the case narrowly by focusing solely on the irreparable harm prong. 

In a dissenting opinion, Judge Alex Kozinski found that Garcia made an ample showing of irreparable harm. Judge Kozinski also noted that the Beijing Treaty on Audiovisual Performances would have recognized Garcia’s rights in her performance, although the majority opinion in a footnote pointed out that the treaty has yet to take effect because not enough countries have ratified or acceded to the treaty. 

Lexis.com subscribers can access the opinion at Garcia v. Google, Inc., 2015 U.S. App. LEXIS 8105 (9th Cir. Cal. May 18, 2015). Lexis Advance subscribers can access it here: Garcia v. Google, Inc., 2015 U.S. App. LEXIS 8105 (9th Cir. Cal. May 18, 2015).

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