# Garcia v. Google, Inc. (9th Cir. 2015)

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Appeal from the United States District Court for the Central District of California Michael W. Fitzgerald, District Judge, Presiding
Argued and Submitted En Banc December 15, 2014—Pasadena California
Filed May 18, 2015
Before: Sidney R. Thomas, Chief Judge, and Alex Kozinski, M. Margaret McKeown, Marsha S. Berzon, Johnnie B. Rawlinson, Richard R. Clifton, Consuelo M. Callahan, N. Randy Smith, Mary H. Murguia, Morgan Christen and Paul J. Watford, Circuit Judges.
Opinion by Judge McKeown; Concurrence by Judge Watford; Dissent by Judge Kozinski
SUMMARY
Copyright / Preliminary Injunction
The en banc court affirmed the district court's denial of Cindy Lee Garcia's motion for a preliminary injunction requiring Google, Inc., to remove the film Innocence of Muslims from all of its platforms, including YouTube.
A movie producer transformed Garcia's five-second acting performance for a film titled Desert Warrior into part of a blasphemous video proclamation against the Prophet Mohammed. Innocence of Muslims was credited as a source ​of violence in the Middle East, and Garcia received death threats.
The en banc court held that the district court did not abuse its discretion in denying Garcia's motion for a mandatory preliminary injunction because the law and facts did not clearly favor her claim to a copyright in her acting performance as it appeared in Innocence of Muslims. The en banc court credited the expert opinion of the Copyright Office, which had refused to register Garcia's performance apart from the film. The en banc court also held that in the context of copyright infringement, the only basis upon which the preliminary injunction was sought, Garcia failed to make a clear showing of irreparable harm to her interests as an author.
The en banc court dissolved the three-judge panel's amended takedown injunction against the posting or display of any version of Innocence of Muslims that included Garcia's performance. The en banc court held that the injunction was unwarranted and incorrect as a matter of law and was a prior restraint that infringed the First Amendment values at stake.
Concurring in the judgment, Judge Watford wrote that the majority should not have reached the issue of copyright law, but rather should have affirmed, without controversy, on the basis of Garcia's failure to establish a likelihood of irreparable harm.
Dissenting, Judge Kozinski wrote that Garcia's dramatic performance met all of the requirements for copyright protection. He wrote that her copyright claim was likely to ​succeed and that she had made an ample showing of irreparable harm.
COUNSEL
M. Cris Armenta, The Armenta Law Firm ACP, Los Angeles, California; Credence Sol, La Garenne, Chauvigng, France; and Jason Armstrong, Bozeman, Montana, for Plaintiff-Appellant.
Neal Kumar Katyal, Christopher T. Handman, Dominic F. Perella, and Sean Marotta, Hogan Lovells US LLP, Washington, D.C.; and Timothy Alger and Sunita Bali, Perkins Coie LLP, Palo Alto, California, for Defendants-Appellees Google, Inc. and YouTube LLC.
Michael H. Page and Joseph C. Gratz, Durie Tangrie LLP, San Francisco, California, for Amicus Curiae Netflix, Inc..
Christopher Jon Sprigman, New York University School of Law, New York, New York; Christopher Newman, George Mason University School of Law, Arlington, Virginia; and Jennifer S. Grannick, Stanford Law School, Stanford, California, for Amici Curiae Professors of Intellectual Property.
Matt Schruers, Washington, D.C., for Amicus Curiae Computer & Communications Industry Association.
Corynne McSherry and Vera Ranieri, Electronic Frontier Foundation, San Francisco, California; Lee Rowland and Brian Hauss, American Civil Liberties Union, New York, New York; Sherwin Siy and John Bergmayer, Public ​Knowledge, Washington, D.C.; Art Neill and Teri Karobonik, New Media Rights, San Diego, California; Erik Stallman, Center for Democracy & Technology, Washington, D.C.; and Jonathan Band, Jonathan Band PLLC of Washington, D.C., for Amici Curiae Electronic Frontier Foundation, American Civil Liberties Union, Public Knowledge, Center for Democracy and Technology, New Media Rights, American Library Association, Association of College and Research Libraries, and Association of Research Libraries.
Catherine R. Gellis, Sausalito, California, for Amici Curiae Floor 64, Inc., and Organization for Transformative Works.
Christopher S. Reeder, Robins, Kaplan, Miller & Ciresi LLP, Los Angeles, California; David Leichtman and Michael A. Kolcun, Robins, Kaplan, Miller & Ciresi LLP, New York, New York; and Kathryn Wagner, Stacy Lefkowitz, and Kristine Hsu, New York, New York, for Amicus Curiae Volunteer Lawyers for the Arts, Inc.
Andrew P. Bridges, David L. Hayes, Kathryn J. Fritz, and Todd R. Gregorian, Fenwick & West LLP, San Francisco California, for Amici Curiae Adobe Systems, Inc., Automattic, Inc., Facebook, Inc., Gawker Media, LLC, IAC/Interactive Corp., Kickstarter, Inc., Pinterest, Inc., Tumblr, Inc., and Twitter, Inc.
Venkat Balasubramani, Focal PLLC, Seattle, Washington; Eric Goldman, Santa Clara University School of Law, Santa Clara, California, for Amici Curiae Internet Law Professors.
Gary L. Bostwick, Bostwick Law, Los Angeles, California; Jack I. Lerner, UCI Intell. Prop., Arts & Tech. Clinic, Irvine, California; Michael C. Donaldson, Donaldson + Callif, LLP, ​Beverly Hills, California; Lincoln D. Bandlow, Lanthrop & Gage LLP, Los Angeles, California; and Rom Bar-Nissim, Los Angeles, California, for Amici Curiae International Documentary Association, Film Independent, Fredrik Gertten and Morgan Spurlock.
Kelli L. Sager, Dan Laidman and Brendan N. Charney, Davis Wright Tremaine LLP, Los Angeles, California, for Amici Curiae Los Angeles Times Communications LLC; The E.W. Scripps Company; Advance Publications, Inc.; The New York Times Company; The Washington Post; the Reporters Committee for Freedom of the Press; National Public Radio, Inc.; the National Press Photographers Association; the California Newspaper Publishers Association; and the First Amendment Coalition.
Duncan Crabtree-Ireland and Danielle S. Van Lier, SAG-AFTRA, Los Angeles, California; Thomas R. Carpenter, Actors' Equity Association, New York, New York; Jennifer P. Garner, American Federation of Musicians of the United States and Canada, New York, New York; Dominick Luquer, International Federation of Actors, Brussels, Belgium; and Elichai Shaffir, Counsel for Alliance of Canadian Cinema, Television, and Radio Artists, Toronto, Ontario, for Amici Curiae Screen Actors Guild–American Federation of Television and Radio Artists; Actors' Equity Association; American Federation of Musicians of the United States and Canada; International Federation of Actors; Alliance of Canadian Cinema, Television, and Radio Artists; Equity UK; Media, Entertainment and Arts Alliance–Equity Division (Australia & New Zealand); and South African Guild of Actors.
​Paul Alan Levy and Scott Michelman, Public Citizen Litigation Group, Washington, D.C., for Amicus Curiae Public Citizen.
Justin Hughes, Loyola Law School, Los Angeles, California, for Amici Curiae Professors Shyamkrishna Balganesh, Justin Hughes, Pete Menell, and David Nimmer.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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