American Bar Association
Media Alerts
Media Alerts - Garcia v. Google, Inc. and YouTube, LLC - Ninth Circuit
Decrease font size
Increase font size
April 1, 2014
  Garcia v. Google, Inc. and YouTube, LLC - Ninth Circuit
Headline: Ninth Circuit Reverses Denial of Request for Preliminary Injunction Requiring the Removal of an Anti-Islamic Film from YouTube.Com.

Area of Law: Civil Law, First Amendment

Issues Presented: Whether the district court's denial of the plaintiff's request for a preliminary injunction, requiring the removal of an Anti-Islamic film which used plaintiff's performance intended for a different film, was an abuse of discretion.

Brief Summary: Appellant, Cindy Lee Garcia, appealed the denial of her application for a temporary restraining order seeking removal of an Anti-Islamic film from YouTube. Appellant claimed that the posting of the video infringed her copyright in her performance.

The Ninth Circuit panel reversed the district court's denial of the preliminary injunction, finding that the appellant established a likelihood of success on the merits and showed irreparable harm would result if the injunction was not issued, that the balances of equities favored the appellant, and that the public interest weighed in favor of injunctive relief.

To read the full opinion, please visit: http://cdn.ca9.uscourts.gov/da.../12-57302_opinion.pdf

Extended Summary: Appellant, Cindy Lee Garcia, agreed to act in a film with the working title "Desert Warrior." The film's writer and producer, Mark Basseley Youssef, cast appellant in a minor role. Appellant was paid $500 for three and a half days of filming of what appellant believed was an Arabian adventure movie. Although the film never materialized, appellant's scene in the film was used in an anti-Islamic film titled, "Innocence of Muslims." "Innocence of Muslims" was uploaded onto YouTube and appellant discovered that her performance in "Desert Warrior" had been partially dubbed over so that appellant appeared to ask, "Is your Mohammed a child molester?" The film's appearance on Egyptian television sparked protests, generating worldwide news coverage. An Egyptian cleric issued a fatwa, calling for the killing of everyone involved in the "Innocence of Muslims" film. Appellant soon began receiving death threats.

Appellant filed eight takedown notices under the Digital Millennium Copyright Act 17 U.S.C. § 512. However, Google refused to act. Appellant then applied for a temporary restraining order against Google and YouTube, seeking removal of the film from YouTube, on the grounds that the posting of the film infringed her copyright in her performance. The district court treated the application as a motion for preliminary injunction and denied it. The district court held that appellant delayed in bringing the action, failed to demonstrate that preliminary relief would prevent any alleged harm, and that appellant was unlikely to succeed on the merits.

The panel reviewed the denial of the preliminary injunction for abuse of discretion. In granting a preliminary injunction, four factors must be considered: plaintiff's likelihood of success on the merits, likelihood that irreparable harm will result if the injunction is not issued, the balances of equities and the public interest.

First, the panel considered appellant's copyright interest and the likelihood of success on the merits. Appellant claimed that her performance in the film was independently copyrightable and that she retained an interest in that copyright. The panel noted that appellant must prove that she had an independent interest in her performance, Youssef did not own any such interest as a work for hire, and Youssef did not have an implied license to use her performance. The panel held that, although appellant was not a "joint author" of the film, nothing in the Copyright Act suggested that a copyright interest in a creative contribution disappears because a contributor was not considered a "joint author." As such, appellant may assert a copyright interest in the portion of "Innocence of Muslims" that represents her individual creativity. Furthermore, the under the work for hire doctrine, appellant's rights in her performance vested in Youssef if appellant was Youssef's employee and acted in her employment capacity. However, the panel held that appellant did not qualify as a traditional employee and nothing in the record suggest Youssef was in the "regular business" of making films. Additionally, the panel found that, although appellant granted Youssef an implied license for her contribution to the film, Youssef exceeded the bounds of the implied license, as the film differed radically from anything appellant could have imagined.

Next, the panel considered whether appellant would suffer irreparable harm if the injunction were not issued. The district court found that appellant failed to make this requiring showing because she delayed in bringing her claim for several months. However, panel found that she took action as soon as she began receiving death threats, when a need for speedy action was required. The panel therefore held that harm was real and immediate. Furthermore, there was a causal relationship between the infringement of appellant's copyright and the harm. As such, appellant demonstrated that, absent an injunction, she would continue to suffer concrete harms.

Lastly, the panel considered the balance of equities and the public interest. Here, the panel noted that Youssef lied to appellant about the project she participated in. Appellant's performance was used in a way that subjected her to threats of harm and death. Despite appellant's viable copyright claim and the harms, Google refused to remove the film from YouTube. The panel held that it was difficult to see how Google could defend its refusal on equitable grounds and that "it doesn't really try [arguing instead] that an injunction would be inequitable because of the overwhelming public interest in the continued hosting of "Innocence of Muslims" on YouTube. Furthermore, Google's public interest argument that the proposed injunction was unconstitutional as prior restraint of speech was not successful. The panel held that the First Amendment does not protect copyright infringement. Therefore, the balance of equities and the public interest weighed in favor of injunctive relief.

Because all four factors were met, the Ninth Circuit panel held that the district court abused its discretion in denying injunctive relief, and reversed and remanded.

To read the full opinion, please visit: http://cdn.ca9.uscourts.gov/da.../12-57302_opinion.pdf

Panel: Judges Kozinksi, Gould and Smith

Date of Issued Opinion: 2/26/2014

Docket Number: 12-57302

Decided: Reversed and Remanded.

Case Alert Author: Kimberly Whang

Counsel: M. Cris Armenta, The Armenta Law firm APC, Los Angeles, California and Credence Sol, Chauvigng, France, for the Plaintiff; Timothy L. Alger and Sunita Bali, Perkins Coie LLP, Palo Alto, California for the Defendants.

Author of Opinion: Chief Judge Kozinski

Case Alert Circuit Supervisor Headline: Ninth Circuit Reverses Denial of Request for Preliminary Injunction Requiring the Removal of an Anti-Islamic Film from YouTube.Com.

Area of Law: Civil Law, First Amendment

Issues Presented: Whether the district court's denial of the plaintiff's request for a preliminary injunction, requiring the removal of an Anti-Islamic film which used plaintiff's performance intended for a different film, was an abuse of discretion.

Brief Summary: Appellant, Cindy Lee Garcia, appealed the denial of her application for a temporary restraining order seeking removal of an Anti-Islamic film from YouTube. Appellant claimed that the posting of the video infringed her copyright in her performance.

The Ninth Circuit panel reversed the district court's denial of the preliminary injunction, finding that the appellant established a likelihood of success on the merits and showed irreparable harm would result if the injunction was not issued, that the balances of equities favored the appellant, and that the public interest weighed in favor of injunctive relief.

To read the full opinion, please visit: http://cdn.ca9.uscourts.gov/da.../12-57302_opinion.pdf

Extended Summary: Appellant, Cindy Lee Garcia, agreed to act in a film with the working title "Desert Warrior." The film's writer and producer, Mark Basseley Youssef, cast appellant in a minor role. Appellant was paid $500 for three and a half days of filming of what appellant believed was an Arabian adventure movie. Although the film never materialized, appellant's scene in the film was used in an anti-Islamic film titled, "Innocence of Muslims." "Innocence of Muslims" was uploaded onto YouTube and appellant discovered that her performance in "Desert Warrior" had been partially dubbed over so that appellant appeared to ask, "Is your Mohammed a child molester?" The film's appearance on Egyptian television sparked protests, generating worldwide news coverage. An Egyptian cleric issued a fatwa, calling for the killing of everyone involved in the "Innocence of Muslims" film. Appellant soon began receiving death threats.

Appellant filed eight takedown notices under the Digital Millennium Copyright Act 17 U.S.C. § 512. However, Google refused to act. Appellant then applied for a temporary restraining order against Google and YouTube, seeking removal of the film from YouTube, on the grounds that the posting of the film infringed her copyright in her performance. The district court treated the application as a motion for preliminary injunction and denied it. The district court held that appellant delayed in bringing the action, failed to demonstrate that preliminary relief would prevent any alleged harm, and that appellant was unlikely to succeed on the merits.

The panel reviewed the denial of the preliminary injunction for abuse of discretion. In granting a preliminary injunction, four factors must be considered: plaintiff's likelihood of success on the merits, likelihood that irreparable harm will result if the injunction is not issued, the balances of equities and the public interest.

First, the panel considered appellant's copyright interest and the likelihood of success on the merits. Appellant claimed that her performance in the film was independently copyrightable and that she retained an interest in that copyright. The panel noted that appellant must prove that she had an independent interest in her performance, Youssef did not own any such interest as a work for hire, and Youssef did not have an implied license to use her performance. The panel held that, although appellant was not a "joint author" of the film, nothing in the Copyright Act suggested that a copyright interest in a creative contribution disappears because a contributor was not considered a "joint author." As such, appellant may assert a copyright interest in the portion of "Innocence of Muslims" that represents her individual creativity. Furthermore, the under the work for hire doctrine, appellant's rights in her performance vested in Youssef if appellant was Youssef's employee and acted in her employment capacity. However, the panel held that appellant did not qualify as a traditional employee and nothing in the record suggest Youssef was in the "regular business" of making films. Additionally, the panel found that, although appellant granted Youssef an implied license for her contribution to the film, Youssef exceeded the bounds of the implied license, as the film differed radically from anything appellant could have imagined.

Next, the panel considered whether appellant would suffer irreparable harm if the injunction were not issued. The district court found that appellant failed to make this requiring showing because she delayed in bringing her claim for several months. However, panel found that she took action as soon as she began receiving death threats, when a need for speedy action was required. The panel therefore held that harm was real and immediate. Furthermore, there was a causal relationship between the infringement of appellant's copyright and the harm. As such, appellant demonstrated that, absent an injunction, she would continue to suffer concrete harms.

Lastly, the panel considered the balance of equities and the public interest. Here, the panel noted that Youssef lied to appellant about the project she participated in. Appellant's performance was used in a way that subjected her to threats of harm and death. Despite appellant's viable copyright claim and the harms, Google refused to remove the film from YouTube. The panel held that it was difficult to see how Google could defend its refusal on equitable grounds and that "it doesn't really try [arguing instead] that an injunction would be inequitable because of the overwhelming public interest in the continued hosting of "Innocence of Muslims" on YouTube. Furthermore, Google's public interest argument that the proposed injunction was unconstitutional as prior restraint of speech was not successful. The panel held that the First Amendment does not protect copyright infringement. Therefore, the balance of equities and the public interest weighed in favor of injunctive relief.

Because all four factors were met, the Ninth Circuit panel held that the district court abused its discretion in denying injunctive relief, and reversed and remanded.

To read the full opinion, please visit: http://cdn.ca9.uscourts.gov/da.../12-57302_opinion.pdf

Panel: Judges Kozinksi, Gould and Smith

Date of Issued Opinion: 2/26/2014

Docket Number: 12-57302

Decided: Reversed and Remanded.

Case Alert Author: Kimberly Whang

Counsel: M. Cris Armenta, The Armenta Law firm APC, Los Angeles, California and Credence Sol, Chauvigng, France, for the Plaintiff; Timothy L. Alger and Sunita Bali, Perkins Coie LLP, Palo Alto, California for the Defendants.

Author of Opinion: Chief Judge Kozinski

Case Alert Circuit Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 04/01/2014 06:14 PM     9th Circuit  

FuseTalk Enterprise Edition - © 1999-2018 FuseTalk Inc. All rights reserved.

Discussion Board Usage Agreement

Back to Top