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Garcia v. Google, Inc.

Garcia v. Google, Inc.

United States Court of Appeals for the Ninth Circuit

June 26, 2013, Argued and Submitted, Seattle, Washington; February 26, 2014, Filed

No. 12-57302

Opinion

 [*1261]  [***1800]   KOZINSKI, Chief  [**3] Judge:

While answering a casting call for a low-budget amateur film doesn't often lead to stardom, it also rarely turns an aspiring actress into the subject of a fatwa. But that's exactly what happened to Cindy Lee Garcia when she agreed to act in a film with the working title "Desert Warrior."

The film's writer and producer, Mark Basseley Youssef—who also goes by the names Nakoula Basseley Nakoula and Sam Bacile—cast Garcia in a minor role. Garcia was given the four pages of the script in which her character appeared and paid approximately $500 for three and a half days of filming. "Desert Warrior" never materialized. Instead, Garcia's scene was used in an anti-Islamic film titled "Innocence of Muslims." Garcia first saw "Innocence of Muslims" after it was uploaded to YouTube.com and she discovered that her brief performance had been partially dubbed over so that she appeared to be asking, "Is your Mohammed a child molester?"

 [*1262]  These, of course, are fighting words to many faithful Muslims and, after the film aired on Egyptian television, there were protests that generated worldwide news coverage. An Egyptian cleric issued a fatwa, calling for the killing of everyone involved with the film,  [**4] and Garcia soon began receiving death threats. She responded by taking a number of security precautions and asking that Google remove the video from YouTube.

In all, Garcia filed eight takedown notices under the Digital Millenium Copyright Act. See generally 17 U.S.C. § 512. When Google resisted, she supplied substantive explanations as to why the film should be taken down. Google still refused to act, so Garcia applied for a temporary restraining order seeking removal of the film from YouTube, claiming that the posting of the video infringed her copyright in her performance.2 The district court treated the application as a motion for a preliminary injunction, and denied it because Garcia had delayed in bringing the action, had failed to demonstrate "that the requested preliminary relief would prevent any alleged harm" and was unlikely to succeed on the merits because she'd granted Youssef an implied license to use her performance in the film.

I. Discussion

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743 F.3d 1258 *; 2014 U.S. App. LEXIS 3694 **; 109 U.S.P.Q.2D (BNA) 1799 ***; Copy. L. Rep. (CCH) P30,570; 42 Media L. Rep. 1309

CINDY LEE GARCIA, Plaintiff-Appellant, v. GOOGLE, INC., a Delaware Corporation; YOUTUBE, LLC, a California limited liability company, Defendants-Appellees, and NAKOULA BASSELEY NAKOULA, an individual, AKA Sam Bacile; MARK BASSELEY YOUSSEF; ABANOB BASSELEY NAKOULA; MATTHEW NEKOLA; AHMED HAMDY; AMAL NADA; DANIEL K. CARESMAN; KRITBAG DIFRAT; SOBHI BUSHRA; ROBERT BACILY; NICOLA BACILY; THOMAS J. TANAS; ERWIN SALAMEH; YOUSSEFF M. BASSELEY; MALID AHLAWI, Defendants.

Subsequent History: As Corrected February 28, 2014.

Later proceeding at Garcia v. Google, Inc., 2014 U.S. App. LEXIS 17588 (9th Cir. Cal., Mar. 6, 2014)

Later proceeding at Garcia v. Google, Inc., 749 F.3d 1093, 2014 U.S. App. LEXIS 4907 (9th Cir., 2014)

Amended by Garcia v. Google, Inc., 766 F.3d 929, 2014 U.S. App. LEXIS 13711 (9th Cir. Cal., 2014)

Reprinted as amended at Garcia v. Google, Inc., 766 F.3d 929, 2014 U.S. App. LEXIS 13709 (9th Cir. Cal., 2014)

Prior History:  [**1] Appeal from the United States District Court for the Central District of California. D.C. No. 2:12-cv-08315-MWF-VBK. Michael W. Fitzgerald, District Judge, Presiding.

Garcia v. Nakoula, 2012 U.S. Dist. LEXIS 192948 (C.D. Cal., Nov. 30, 2012)

Disposition: REVERSED AND REMANDED.

CORE TERMS

film, hire, authorship, Copyright Act, creative, district court, implied license, infringement, preliminary injunction, irreparable harm, public interest, words, injunction, copyright protection, license, script, actress's, threats, movie, scene, song, motion picture, contributions, vocalist, factors, argues, subject matter, principles, quotation, merits

Civil Procedure, Appeals, Standards of Review, Abuse of Discretion, Injunctions, Grounds for Injunctions, General Overview, Remedies, Preliminary & Temporary Injunctions, De Novo Review, Copyright Law, Scope of Copyright Protection, Ownership Interests, Joint Authors & Works, Constitutional Copyright Protections, Copyright Clause, Subject Matter, Statutory Copyright & Fixation, Original Works of Authorship, Protected Subject Matter, Literary Works, Audiovisual Works & Motion Pictures, Motion Pictures, Works Made for Hire, Business & Corporate Compliance, Infringement Actions, Defenses, Implied Licenses, Irreparable Harm, Civil Infringement Actions, Injunctions, Constitutional Law, Fundamental Freedoms, Freedom of Speech, Scope, First Amendment Considerations, Copyright Infringement Actions