In February 2014, a divided panel of the Ninth Circuit issued an order granting Cindy Lee Garcia’s motion for a preliminary injunction in Garcia v Google.  On appeal from a district courts denial of the motion, the Ninth Circuit opinion caused waves when it held that Garcia has met her burden and demonstrated that she was likely to succeed on her claims of copyright infringement.

Garcia was originally offered a role in a film titled “Desert Warrior.”  She was paid $500 to perform four pages of script which was filmed over 5 days.  However, “Desert Warrior” was never made.  Instead, Garcia’s brief performance was dubbed over and appeared on YouTube in the trailer for a film entitled “The Innocence of Muslims.”  This anti-Muslim film which originally appeared on YouTube sparked outrage throughout the Middle East after its translation to Arabic, culminating in an Egyptian cleric issuing a Fatwa against all those involved in the creation of the film.  Garcia, who was receiving numerous credible death threats, notified YouTube that Innocence of Muslims violated her copyright interest, and requested YouTube take it down under the Digital Millennium Copyright Act.  YouTube refused, and Garcia sued.  The District Court refused to grant Garcia’s request for an injunction, holding that she had failed to establish a likelihood of success on the merits of her copyright claim.  The Ninth Circuit reversed, holding that not only had Garcia demonstrated a likelihood of success, but that she also satisfied all the other required elements.

The Ninth Circuit granted en banc review, and overruled the holding of the panel.  Concerned with fragmentation of copyright and its possible impacts, the en banc court held that Garcia had not satisfied the requirements to establish a likelihood of success on the merits and that she was therefore not entitled to a preliminary injunction.  Going further, the court held that despite suffering significant harm, Garcia had not suffered the type of harm necessary to satisfy the “irreparable harm” requirement of preliminary injunctions.  Copyright, in the eyes of the court, is designed to encourage authors to distribute their work, through providing them a safe harbor to economically exploit their work for profit.  Garcia’s attempt to “censer through copyright” did not fit this purpose, and therefore was not the type of harm the court looked to in establishing irreparable harm.

Though this en banc decision in many ways restores the status quo, Garcia’s plight presents many questions for the future of copyright.  In the face of similar issues, should congress include some “moral right” for authors, as exists in foreign jurisdictions.  Alternatively, is there some requirement for a “right to be forgotten” as was recently established in the European Courts.  Regardless of other policy outcomes, the “Hollywood Circuit” has now made its position clear: whatever rights performers have in their public image, they do not have copyright solely due to the inclusion of their works in a film.

 

Wayman Stodart

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