The copyright community has been anticipating what was made official today—the Ninth Circuit will review en banc its July decision in Garcia v. Google, Inc. Chief Judge Kozinski and 10 other Ninth Circuit judges randomly chosen will reconsider its decision granting a preliminary injunction against Google.
An anti-Islamic film “Innocence of Muslims” appeared on YouTube featuring a five-second clip of Cindy Garcia. Garcia’s performance was used in “Innocence of Muslims” even though she only consented to be in an Arabian adventure film “Desert Warrior.” “Innocence of Muslims” garnered vast negative attention and ultimately resulted in threats to Garcia. Garcia then asked Google to take down the film on YouTube under the Digital Millennium Copyright Act (DMCA). When Google did not remove “Innocence of Muslims” from YouTube, Garcia sued Google for copyright infringement.
The district court denied her motion for preliminary injunction against Google because the court found she lacked a copyright interest in the film. Garcia appealed the case, and the Ninth Circuit Court of Appeals granted a preliminary injunction against Google. The Ninth Circuit held that Garcia’s performance contained the minimal creativity to be copyrightable, suggesting she had a “performance copyright.” Judge Kozinksi wrote:
“[J]ust because Garcia isn’t a joint author of ‘Innocence of Muslims’ doesn’t mean she doesn’t have a copyright interest in her own performance within the film.”
Five months later, the Ninth Circuit amended its Garcia opinion. The Ninth Circuit’s revised opinion said that the district court could find that Garcia is not entitled to copyright in her performance because the U.S. Copyright Office rejected Garcia’s attempt to register a copyright interest in her “Innocence of Muslims” appearance. At the same time, the revised opinion did not alter the court’s discussion of Garcia’s “performance copyright,” and the injunction on the film remained.
Today’s news of an en banc review shows that the Garcia saga is far from over. Now, the Ninth Circuit is set to discuss Garcia’s copyright interest in the film and determine if the injunction against YouTube/Google should remain.