FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

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.

No. 12-57302

D.C. No.

2:12-cv-08315-

MWF-VBK

ORDER AND

AMENDED

OPINION

Appeal from the United States District Court

for the Central District of California

Michael W. Fitzgerald, District Judge, Presiding
2 GARCIA V. GOOGLE, INC.

Argued and Submitted

June 26, 2013—Seattle, Washington

Filed February 26, 2014

Amended July 11, 2014

Before: Alex Kozinski, Chief Judge, Ronald M. Gould

and N. Randy Smith, Circuit Judges.

Opinion by Chief Judge Kozinski;

Dissent by Judge N.R. Smith

SUMMARY*

Copyright / Preliminary Injunction

The panel filed (1) an order amending a previous opinion

and dissent and stating that a petition for rehearing en banc

remained pending, (2) an amended opinion, and (3) an

amended dissent in an appeal from the district court’s denial

in a copyright case of a preliminary injunction requiring the

removal from YouTube.com of an anti-Islamic film that used

a performance that the plaintiff made for a different film.

Reversing the district court’s denial of the preliminary

injunction, the panel concluded that the plaintiff established

a likelihood of success on the merits of her claim of

infringement of her performance within the film because she

proved (1) that she likely had a protectible interest in the

performance and (2) that the filmmaker did not own an

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
GARCIA V. GOOGLE, INC. 3

interest as a work for hire and exceeded any implied license

to use the plaintiff’s performance.

The panel held that the plaintiff established the likelihood

that irreparable harm would result if an injunction did not

issue because she was subject to death threats and took action

as soon as she began receiving the threats. The plaintiff also

established sufficient causal connection between the

infringement of her copyright and the harm she alleged.

The panel also held that the balance of the equities and

the public interest weighed in favor of injunctive relief.

Dissenting, Judge N.R. Smith wrote that the facts and law

did not clearly favor issuing a mandatory preliminary

injunction to the plaintiff. He wrote that the plaintiff did not

establish a likelihood that she had a copyrightable interest in

her acting performance, nor did she clearly show that the

performance was not a work made for hire. In addition, the

district court did not abuse its discretion in its ruling on

irreparable harm, and the balance of the equities and the

public interest did not favor the issuance of a preliminary

injunction.

COUNSEL

M. Cris Armenta (argued), The Armenta Law Firm APC, Los

Angeles, California and Credence Sol, Chauvigng, France,

for Plaintiff-Appellant.

Timothy L. Alger (argued) and Sunita Bali, Perkins Coie

LLP, Palo Alto, California, for Defendants-Appellees.
4 GARCIA V. GOOGLE, INC.

ORDER

The opinion and dissent filed February 26, 2014, and

reported at 743 F.3d 1258, are amended to conform to the

attached Amended Opinion andAmended Dissent, 12-57302. 

No further petitions for rehearing will be entertained. The

petition for rehearing en banc remains pending.

OPINION

KOZINSKI, Chief 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?”
GARCIA V. GOOGLE, INC. 5

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, 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 Millennium 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.1 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

While we review the denial of a preliminary injunction

for abuse of discretion, Alliance for the Wild Rockies v.

Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011), the “legal

premises underlying a preliminary injunction” are reviewed

de novo. A&M Records, Inc. v. Napster, Inc., 284 F.3d 1091,

1 Although Garcia’s suit also named the film’s producers, only Google,

which owns YouTube, answered the complaint.
6 GARCIA V. GOOGLE, INC.

1096 (9th Cir. 2002). In granting or denying a preliminary

injunction, the district court must consider four factors: a

plaintiff’s likely success on the merits, the likelihood that

irreparable harm will result if an injunction doesn’t issue, the

balance of equities and the public interest. Winter v. Natural

Res. Def. Council, 555 U.S. 7, 20 (2008). The district court

found against Garcia on the first two factors and didn’t

consider the last two.2

A. Likelihood of Success on the Merits

Garcia doesn’t claim a copyright interest in “Innocence of

Muslims” itself; far from it. Instead, she claims that her

performance within the film is independently copyrightable

and that she retained an interest in that copyright. To succeed

on this claim, Garcia must prove not only that she likely has

an independent interest in her performance but that Youssef

doesn’t own any such interest as a work for hire and that he

doesn’t have an implied license to use her performance.

2 The dissentsuggests that we must defer to the district court’s statement

that “the nature of [Garcia’s] copyright interest is not clear.” But we defer

to a lower court’s decision, not its equivocation.

It’s worth noting what the district court’s three-page order doesn’t do: 

It doesn’t decide whether Garcia has a copyright interest in her

performance, whether her performance is a “work,” whether Garcia is the

“author” of her performance or whether her performance is a work for

hire. Nor does it address the balance of the equities or the public interest,

despite the fact that a district court must “weigh in its analysis the public

interest implicated by [an] injunction, as Winter nowrequires.” Stormans,

Inc. v. Selecky, 586 F.3d 1109, 1138 (9th Cir. 2009).
GARCIA V. GOOGLE, INC. 7

1. An Independent Copyright Interest

A film is typically conceived of as “a joint work

consisting of a number of contributions by different

‘authors.’” 1 Melville B. Nimmer & David Nimmer, Nimmer

on Copyright § 6.05 at 6–14 (1990). Garcia argues that she

never intended her performance to be part of a joint work, and

under our precedent she doesn’t qualify as a joint author. See

Aalmuhammed v. Lee, 202 F.3d 1227, 1231–36 (9th Cir.

2000). The dissent claims that “Garcia’s interest in her acting

performance may best be analyzed as a joint work with

Youssef.” Dissent 25 n.3. But work is joint only if the

authors involved in its creation intend that it be so. See 17

U.S.C. § 101. Garcia expressly disclaims such intent and

there is no evidence that Youssef intended to create a joint

work. We thus have no basis for finding a joint intent on this

record.

But just 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. Whether an

individual who makes an independently copyrightable

contribution to a joint work can retain a copyright interest in

that contribution is a rarely litigated question. See Thomson

v. Larson, 147 F.3d 195, 206 (2d Cir. 1998) (dismissing

similar argument on procedural grounds); see also David

Nimmer, Address, Copyright in the Dead Sea Scrolls:

Authorship and Originality, 38 Hous. L. Rev. 1, 186–87 &

n.942 (2001). Nothing in the Copyright Act suggests that a

copyright interest in a creative contribution to a work simply

disappears because the contributor doesn’t qualify as a joint

author of the entire work. 17 U.S.C. § 102(a) (“Copyright

protection subsists . . . in original works of authorship fixed

in any tangible medium . . . .”). Where, as here, the artistic
8 GARCIA V. GOOGLE, INC.

contribution is fixed, the key question remains whether it’s

sufficiently creative to be protectible.3

Google argues that Garcia didn’t make a protectible

contribution to the film because Youssef wrote the dialogue

she spoke, managed all aspects of the production and later

dubbed over a portion of her scene. But an actor does far

more than speak words on a page; he must “live his part

inwardly, and then . . . give to his experience an external

embodiment.” Constantin Stanislavski, An Actor Prepares

15, 219 (Elizabeth Reynolds Hapgood trans., 1936). That

embodiment includes body language, facial expression and

reactions to other actors and elements of a scene. Id. at

218–19. Otherwise, “every shmuck . . . is an actor because

everyone . . . knows how to read.” Sanford Meisner &

Dennis Longwell, Sanford Meisner on Acting 178 (1987).

An actor’s performance, when fixed, is copyrightable if

it evinces “some minimal degree of creativity . . . ‘no matter

how crude, humble or obvious’ it might be.” Feist Publ’ns,

Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991)

(quoting 1 Nimmer on Copyright § 1.08[C][1]). That is true

whether the actor speaks, is dubbed over or, like Buster

Keaton, performs without any words at all. Cf. 17 U.S.C.

§ 102(a)(4) (noting “pantomimes and choreographic works”

are eligible for copyright protection). It’s clear that Garcia’s

performance meets these minimum requirements.

3 Neither party raised the issue of whether the author of a dramatic

performance must personally fix his work in a tangible medium. Because

the question is not properly before us, we do not decide it. The parties are

free to raise it in the district court on remand.
GARCIA V. GOOGLE, INC. 9

Aalmuhammed isn’t to the contrary because it does not, as

the dissent would have it, “articulate[] general principles of

authorship.” Dissent 27. Aalmuhammed only discusses what

is required for a contributor to a work to assert joint

ownership over the entire work: “We hold that authorship is

required under the statutory definition of a joint work, and

that authorship is not the same thing as making a valuable and

copyrightable contribution.” 202 F.3d at 1232. 

Aalmuhammed plainly contemplates that an individual can

make a “copyrightable contribution” and yet not become a

joint author of the whole work. Id. For example, the author

of a single poem does not necessarily become a co-author of

the anthology in which the poem is published. It makes sense

to impose heightened requirements on those who would

leverage their individual contribution into ownership of a

greater whole, but those requirements don’t apply to the

copyrightability of all creative works, for which only a

“minimal creative spark [is] required by the Copyright Act

and the Constitution.” Feist Publ’ns, 499 U.S. at 363.4

Nor does Midler v. Ford Motor Co., 849 F.2d 460 (9th

Cir. 1988), speak to the problem before us. First, of course,

Midler isn’t a copyright case at all—it’s a right of publicity

case that happens to discuss copyright in the context of

preemption, not infringement. Second, Midler discusses the

copyrightabilityof a performer’s voice—not her performance. 

4 Our decision today does not “read[] the authorship requirement out of

the Copyright Act and the Constitution.” Dissent 28. An author “in a

constitutional sense” is one “‘to whom anything owes its origin;

originator; maker.’” Feist Publ’ns, 499U.S. at 346 (quotingBurrow-Giles

Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884)). In other words, the

creator of copyrightable artistic expression is an author. Which is why,

for example, Sinéad O’Connor can claim a copyright in her performance

of “Nothing Compares 2 U” even though the song was written by Prince.
10 GARCIA V. GOOGLE, INC.

See 849 F.2d at 462. A performer’s voice is analogous to her

image, which we’ve said “is not a work of authorship” under

the Copyright Act. Downing v. Abercrombie & Fitch,

265 F.3d 994, 1004 (9th Cir. 2001). But that doesn’t answer

the question of whether the artist’s creativity, expressed

through her voice or image, is protected by copyright. Just

because someone’s voice—its particular timbre and

quality—can’t be copyrighted, doesn’t mean that a

performance made using that voice can never be protected. 

In fact, many vocal performances are copyrighted. See, e.g.,

Laws v. Sony Music Entm’t, Inc., 448 F.3d 1134, 1141 (9th

Cir. 2006).

Recognizing that Garcia may have a copyright interest in

her performance isn’t the end of the inquiry. A screenplay is

itself a copyrightable creative work and a film is a derivative

work of the screenplay on which it is based. See Gilliam v.

Am. Broad. Cos., 538 F.2d 14, 20 (2d Cir. 1976); see also

17 U.S.C. § 101; 2 Nimmer on Copyright § 2.10[A] n.8. 

Where, as here, an actor’s performance is based on a script,

the performance is likewise derivative of the script, such that

the actor might be considered to have infringed the

screenwriter’s copyright. And an infringing derivative work

isn’t entitled to copyright protection. See 17 U.S.C. § 103(a);

see also U.S. Auto Parts Network, Inc. v. Parts Geek, LLC,

692 F.3d 1009, 1016 (9th Cir. 2012).

Of course, by hiring Garcia, giving her the script and

turning a camera on her, Youssef implicitly granted her a

license to perform his screenplay. See Effects Assocs., Inc. v.

Cohen, 908 F.2d 555, 558–59 (9th Cir. 1990). This doesn’t

mean that Garcia owns a copyright interest in the entire

scene: She can claim copyright in her own contribution but

not in “preexisting material” such as the words or actions
GARCIA V. GOOGLE, INC. 11

spelled out in the underlying script. 17 U.S.C. § 103(b); see

also U.S. Auto Parts Network, Inc., 692 F.3d at 1016. Garcia

may assert a copyright interest only in the portion of

“Innocence of Muslims” that represents her individual

creativity, but even if her contribution is relatively minor, it

isn’t de minimis. See Feist, 499 U.S. at 359, 363. We need

not and do not decide whether every actor has a copyright in

his performance within a movie. It suffices for now to hold

that, while the matter is fairly debatable, Garcia is likely to

prevail based on the record and arguments before us.

Nothing we say today precludes the district court from

concluding that Garcia doesn’t have a copyrightable interest,

or that Google prevails on any of its defenses. We note, for

example, that after we first issued our opinion, the United

States Copyright Office sent Garcia a letter denying her

request to register a copyright in her performance. Because

this is not an appeal of the denial of registration, the

Copyright Office’s refusal to register doesn’t “preclude[] a

determination” that Garcia’s performance “is indeed

copyrightable.” OddzOn Prods., Inc. v. Oman, 924 F.2d 346,

347 (D.C. Cir. 1991). But the district court may still defer to

the Copyright Office’s reasoning, to the extent it is

persuasive. See Inhale, Inc. v. Starbuzz Tobacco, Inc.,

739 F.3d 446, 448–49 (9th Cir. 2014).

After we first published our opinion, amici raised other

issues, such as the applicability of the fair use doctrine, see

17 U.S.C. § 107, and section 230 of the Communications

Decency Act, see 47 U.S.C. § 230. Because these defenses

were not raised by the parties, we do not address them. The

district court is free to consider them if Google properly

raises them.
12 GARCIA V. GOOGLE, INC.

As the above discussion makes clear, any analysis of the

rights that might attach to the numerous creative

contributions that make up a film can quickly become

entangled in an impenetrable thicket of copyright. But it

rarely comes to that because copyright interests in the vast

majority of films are covered by contract, the work for hire

doctrine or implied licenses. See F. Jay Dougherty, Not a

Spike Lee Joint? Issues in the Authorship of Motion Pictures

Under U.S. Copyright Law, 49 UCLA L. Rev. 225, 238,

317–18, 327–33 (2001). Here, Google argues that Garcia’s

performance was a work made for hire or, alternatively, that

she granted Youssef an implied license to use her

performance in “Innocence of Muslims.”

2. Work For Hire

Under the work for hire doctrine, the rights to Garcia’s

performance vested in Youssef if Garcia was Youssef’s

employee and acted in her employment capacity or was an

independent contractor who transferred her interests in

writing. See 17 U.S.C. §§ 101, 201(b); see also Cmty. for

Creative Non-Violence v. Reid, 490 U.S. 730, 751 (1989).

The “term ‘employee’” refers “to a hired party in a

conventional employment relationship,” and the question of

employment is analyzed under traditional principles of

agency. Reid, 490 U.S. at 743, 751. Garcia’s case is a good

example of why it is difficult to categorize an actor,

particularly one in a small role, as a conventional employee. 

Youssef hired Garcia for a specific task, she only worked for

three days and she claims she received no health or other

traditional employment benefits. See id. at 751–52. As

we’ve recognized, this difficulty is why 17 U.S.C. § 101

“specifically addresses the movie . . . industr[y], affording
GARCIA V. GOOGLE, INC. 13

moviemakers a simple, straightforward way of obtaining

ownership of the copyright in a creative contribution—

namely, a written agreement.” Effects Assocs., 908 F.2d at

558. Youssef didn’t obtain a written agreement,5and Garcia

simply doesn’t qualify as a traditional employee on this

record.

The dissent believes Garcia was an employee primarily

because “Youssef controll[ed] both the manner and means of

making the film, including the scenes featuring Garcia” and

Youssef “was engaged in the business of film making at the

time.” Dissent 34. But there’s no evidence in the record that

Youssef directed the film or that he controlled the manner in

which any part of the film—much less Garcia’s scene—was

shot. In fact, Youssef has claimed only that he wrote the

screenplay.

There’s nothing in the record to suggest that Youssef was

in the “regular business” of making films. Reid, 490 U.S. at

752. He’d held many jobs, but there’s no indication he ever

worked in the film industry. And there’s no evidence he had

any union contracts, relationships with prop houses or other

film suppliers, leases of studio space or distribution

agreements. The dissent would hold that Youssef was in the

“regular business” of filmmaking simply because he made

“Innocence of Muslims.” But if shooting a single amateur

5 Neither party claims that Garcia signed a work for hire agreement. In

the district court, Google produced an agreement, purportedly signed by

Garcia, that transferred all of her rights in her performance to the film’s

producers. Garcia responded by submitting the declaration of a

handwriting expert opining that Garcia’s signature had been forged. The

district court didn’t address the agreement or its authenticity.
14 GARCIA V. GOOGLE, INC.

film amounts to the regular business of filmmaking, every

schmuck with a videocamera becomes a movie mogul.

3. Implied License

A non-exclusive license maybe implied from conduct and

arises where a plaintiff “create[s] a work at defendant’s

request and hand[s] it over, intending that defendant copy and

distribute it.” Effects Assocs., 908 F.2d at 558. We’ve found

an implied license where the plaintiff’s contribution to a film

or other work would otherwise be worthless or of “minimal

value.” Id. at 559; see also Oddo v. Ries, 743 F.2d 630, 634

(9th Cir. 1984). That is the case here. Garcia auditioned for

a role in a particular film, was paid for her performance and

had every reason to believe Youssef would eventually release

the film. Without an implied license, the performance for

which she was paid would be unusable. Therefore, we agree

with Google that Garcia granted Youssef an implied license.

Any such license must be construed broadly. If the scope

of an implied license was exceeded merely because a film

didn’t meet the ex ante expectation of an actor, that license

would be virtually meaningless. See Foad Consulting Grp.,

Inc. v. Azzalino, 270 F.3d 821, 837–38 (9th Cir. 2001)

(Kozinski, J., concurring). A narrow, easily exceeded license

could allow an actor to force the film’s author to re-edit the

film—in violation of the author’s exclusive right to prepare

derivative works. See 17 U.S.C. § 106(2). Or the actor could

prevent the film’s author from exercising his exclusive right

to show the work to the public. See 17 U.S.C. § 106(4). In

other words, unless these types of implied licenses are
GARCIA V. GOOGLE, INC. 15

construed very broadly, actors could leverage their individual

contributions into de facto authorial control over the film.6

Nevertheless, even a broad implied license isn’t

unlimited. See Oddo, 743 F.2d at 634. Garcia was told she’d

be acting in an adventure film set in ancient Arabia. Were

she now to complain that the film has a different title, that its

historical depictions are inaccurate, that her scene is poorly

edited or that the quality of the film isn’t as she’d imagined,

she wouldn’t have a viable claim that her implied license had

been exceeded. But the license Garcia granted Youssef

wasn’t so broad as to cover the use of her performance in any

project. Here, the problem isn’t that “Innocence of Muslims”

is not an Arabian adventure movie: It’s that the film isn’t

intended to entertain at all. The film differs so radically from

anything Garcia could have imagined when she was cast that

it can’t possibly be authorized by any implied license she

granted Youssef.

A clear sign that Youssef exceeded the bounds of any

license is that he lied to Garcia in order to secure her

participation, and she agreed to perform in reliance on that

lie. Youssef’s fraud alone is likely enough to void any

agreement he had with Garcia. See 26 Samuel Williston &

Richard A. Lord, A Treatise on the Law of Contracts § 69:4

(4th ed. 2003). But even if it’s not, it’s clear evidence that his

inclusion of her performance in “Innocence of Muslims”

6 Construing such implied licenses narrowly would also undermine our

joint authorship jurisprudence. Most actors don’t qualify as joint authors. 

See Aalmuhammed, 202 F.3d at 1232–33. Yet, if any actor who doesn’t

like the final version of a movie could keep it from being released, he’d

have more control over the film than a joint author. See 1 Nimmer on

Copyright § 6.10[A][1][a], at 6–36 (“[A] joint owner may exploit the work

himself, without obtaining the consent of the other joint owners.”).
16 GARCIA V. GOOGLE, INC.

exceeded the scope of the implied license and was, therefore,

an unauthorized, infringing use.

The situation in which a filmmaker uses a performance in

a way that exceeds the bounds of the broad implied license

granted by an actor will be extraordinarily rare. But this is

such a case. Because it is, Garcia has demonstrated that she’s

likely to succeed on the merits of her claim. Winter, 555 U.S.

at 20.

B. Irreparable Harm

Garcia argues that she suffers irreparable harm both

because of the ongoing infringement of her copyright and

because that infringement subjects her to continuing, credible

death threats. Irreparable harm isn’t presumed in copyright

cases. Perfect 10, Inc. v. Google, Inc., 653 F.3d 976, 980–81

(9th Cir. 2011). Therefore, Garcia must show that the

damage to her reputation and threats against her life

constitute irreparable harm.

The district court found that Garcia failed to make this

required showing, primarily because she didn’t bring suit

until several months after “Innocence of Muslims” was

uploaded to YouTube. It’s true that a “long delay before

seeking a preliminary injunction implies a lack of urgency

and irreparable harm.” Oakland Tribune, Inc. v. Chronicle

Publ’g Co., 762 F.2d 1374, 1377 (9th Cir. 1985). But this is

so because a preliminary injunction is based “‘upon the

theory that there is an urgent need for speedy action’” and by

“‘sleeping on its rights a plaintiff demonstrates [a] lack of’”

urgency. Lydo Enters., Inc. v. City of Las Vegas, 745 F.2d

1211, 1213 (9th Cir. 1984) (quoting Gillette Co. v. Ed

Pinaud, Inc., 178 F. Supp. 618, 622 (S.D.N.Y. 1959)). 
GARCIA V. GOOGLE, INC. 17

There’s no dispute that, here, Garcia took legal action as soon

as the film received worldwide attention and she began

receiving death threats—in other words, as soon as there was

a “need for speedy action.” Id. Because the need for

immediate action didn’t arise until she was threatened, Garcia

wasn’t dilatory in bringing the lawsuit.

The harm Garcia complains of is real and immediate. See

City of L.A. v. Lyons, 461 U.S. 95, 111 (1983). She has

provided unrefuted evidence that the threats against her are

ongoing and serious, she has already been forced to take

significant security precautions when traveling and she

moved to a new home and relocated her business as a safety

measure. Although past injuries aren’t sufficient to establish

irreparable harm for purposes of an injunction, id. at 103,

Garcia has amply demonstrated that, absent an injunction,

she’ll continue to suffer concrete harms—whether in the form

of ongoing security requirements or actual harm to her

person.

Beyond establishing that she faces an imminent harm,

Garcia must show a “sufficient causal connection” between

that harm and the conduct she seeks to enjoin such that the

injunction would effectively curb the risk of injury. Perfect

10, 653 F.3d at 981–82. Despite her understandable focus on

the threats against her life, Garcia has brought a copyright

action. Therefore, she needs to show that the harm she

alleges is causally related to the infringement of her

copyright.

She’s made such a showing. Youssef’s unauthorized

inclusion of her performance in “Innocence of Muslims”

undisputedly led to the threats against Garcia. Google argues

that any harm arises solely out of Garcia’s participation in
18 GARCIA V. GOOGLE, INC.

“Innocence of Muslims” and not out of YouTube’s continued

hosting of the film. But Garcia has shown that removing the

film from YouTube will help disassociate her from the film’s

anti-Islamic message and that such disassociation will keep

her from suffering future threats and physical harm. 

Although Google asserts that the film is so widespread that

removing it from YouTube will have no effect, it has

provided no evidence to support this point.7 Taking down the

film from YouTube will remove it from a prominent online

platform—the platform on which it was first displayed—and

will curb the harms of which Garcia complains.

It is not irrelevant that the harm Garcia complains of is

death or serious bodily harm, which the dissent fails to

mention. Death is an “irremediable and unfathomable” harm, 

Ford v. Wainwright, 477 U.S. 399, 411 (1986), and bodily

injury is not far behind. To the extent the irreparable harm

inquiry is at all a close question, we think it best to err on the

side of life.

C. Balance of the Equities and The Public Interest

Youssef lied to Garcia about the project in which she was

participating. Her performance was used in a way that she

7 Contrary to the dissent’s suggestion, Garcia’s declaration doesn’t

establish that the film has been “widely discussed and disseminated.” 

Dissent 36. It states only that Garcia reached out to the media to let the

world know that she “d[id] not condone the film.” We reject the dissent’s

uncharitable argument that Garcia should be penalized for attempting to

protect her life and reputation by distancing herself from “Innocence of

Muslims.” We also reject Google’s preposterous argument that any harm

to Garcia is traceable to her filing of this lawsuit. Any publicity generated

by Garcia’s lawsuit is a necessary product of her attempt to protect herself

and her legal rights after Google refused to do so.
GARCIA V. GOOGLE, INC. 19

found abhorrent and her appearance in the film subjected her

to threats of physical harm and even death. Despite these

harms, and despite Garcia’s viable copyright claim, Google

refused to remove the film from YouTube. It’s hard to see

how Google can defend its refusal on equitable grounds and,

indeed, it doesn’t really try. Instead, it argues that an

injunction would be inequitable because of the overwhelming

public interest in the continued hosting of “Innocence of

Muslims” on YouTube.

The problem with Google’s position is that it rests

entirely on the assertion that Garcia’s proposed injunction is

an unconstitutional prior restraint of speech. But the First

Amendment doesn’t protect copyright infringement. Cf.

Eldred v. Ashcroft, 537 U.S. 186, 219–220 (2003). “First

Amendment protections are ‘embodied in theCopyright Act’s

distinction between copyrightable expression and

uncopyrightable facts and ideas,’ and in the ‘latitude for

scholarship and comment’ safeguarded by the fair use

defense.” Golan v. Holder, 132 S. Ct. 873, 890 (2012)

(quoting Harper & Row Publishers, Inc. v. Nation Enters.,

471 U.S. 539, 560 (1985)). Google hasn’t raised fair use as

a defense in this appeal, see page 11 supra, so we do not

consider it in determining its likelihood of success. This does

not, of course, preclude Google from raising the point in the

district court, provided it properly preserved the defense in its

pleadings.

Because Garcia has demonstrated a likelihood of success

on her claim that “Innocence of Muslims” infringes her

copyright, Google’s argument fails. The balance of equities

therefore clearly favors Garcia and, to the extent the public

interest is implicated at all, it, too, tips in Garcia’s direction.
20 GARCIA V. GOOGLE, INC.

* * *

This is a troubling case. Garcia was duped into providing

an artistic performance that was used in a way she never

could have foreseen. Her unwitting and unwilling inclusion

in “Innocence of Muslims” led to serious threats against her

life. It’s disappointing, though perhaps not surprising, that

Garcia needed to sue in order to protect herself and her rights.

But she has sued and, more than that, she’s shown that

she is likely to succeed on her copyright claim, that she faces

irreparable harm absent an injunction and that the balance of

equities and the public interest favor her position. The

district court abused its discretion in finding otherwise.

REVERSED AND REMANDED8

N.R. SMITH, Circuit Judge, dissenting

Because the facts and law do not “clearly favor” issuing

a preliminary injunction to Garcia, the district court did not

abuse its discretion in denying Garcia’s requested relief. As

a result, I must dissent.

8 Concurrent with this opinion, we have issued an order directing Google

to take down all copies of “Innocence of Muslims” from YouTube and

any other platforms within its control and to take all reasonable steps to

prevent further uploads. This temporary injunction shall remain in place

until the district court is able to enter a preliminary injunction consistent

with our opinion.
GARCIA V. GOOGLE, INC. 21

I. Standard of Review

The majority opinion omits applying the requisite

standard of review that is especially pertinent to Garcia’s

requested relief. Mandatory preliminary injunctions, similar

to the one issued today, are “particularly disfavored.” Stanley

v. Univ. of S. Cal., 13 F.3d 1313, 1320 (9th Cir. 1994).

Different from the usual “prohibitory injunction,” a

“mandatory injunction goes well beyond simply maintaining

the status quo pendente lite.” Id. (internal quotation marks

omitted). As an example, requiring a university to reappoint

a faculty member whose contract had expired constitutes a

mandatory injunction. Id.; see also, e.g., Marlyn

Nutraceuticals, Inc. v. Mucos Pharma GmbH &Co., 571 F.3d

873, 879 (9th Cir. 2009) (“[T]he affirmative step of recalling

[a] product” is also a mandatory injunction.). In the instant

dispute, Garcia requests relief through a mandatory

injunction. Rather than asking to maintain the status quo

pending litigation, Garcia demands Google immediately

remove a film from YouTube. Therefore, her request must be

“subject to a higher degree of scrutiny because such relief is

particularly disfavored under the law of this circuit.”Stanley,

13 F.3d at 1320. This higher degree of scrutiny requires

courts to be “extremely cautious” and “deny such relief

unless the facts and law clearly favor the moving party.” Id.

at 1319–20 (internal quotation marks omitted, emphasis

added). Indeed, mandatory injunctions “are not issued in

doubtful cases.” Anderson v. United States, 612 F.2d 1112,

1115 (9th Cir. 1979) (internal quotation marks omitted).

This standard’s importance must be appreciated in

conjunction with the general standard with which this court

reviews a district court’s decision to deny preliminary
22 GARCIA V. GOOGLE, INC.

injunctive relief: “abuse of discretion.” Alliance for the Wild

Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). As

a result, the majority may only reverse if it were illogical or

implausible, United States v. Hinkson, 585 F.3d 1247,

1263–64 (9th Cir. 2009), for the district court to conclude that

the law and facts did not clearly favor Garcia, Stanley,

13 F.3d at 1320.1

Given this standard, the majority errs in requiring Google

to pull the film from YouTube—at this stage of the litigation.

The district court did not abuse its discretion in concluding

that the law and facts did not clearly favor Garcia. Instead,

the majority makes new law in this circuit in order to reach

the result it seeks. We have never held that an actress’s

performance could be copyrightable. Indeed, “[t]here is little

case law or statutory authority as to the position of

performers as authors of an audiovisual work under U.S.

law.” F. Jay Dougherty, Not a Spike Lee Joint? Issues in the

Authorship of Motion Pictures under U.S. Copyright Law,

49 UCLA L. Rev. 225, 300 (2001).

II. Application of the Winter Factors

“A plaintiff seeking a preliminary injunction must

establish that he is likely to succeed on the merits, that he is

likely to suffer irreparable harm in the absence of preliminary

1 As this is the relevant standard of review, the district court’s

application of it is hardly “equivocation.” See maj. op. at 6 n.2.

Furthermore, the amended portions of the majority opinion only confirm

that the law and facts do not clearly favor Garcia: “Nothing we say today

precludes the district court from concluding that Garcia doesn’t have a

copyrightable interest, or that Google prevails on any of its defenses.”

Maj. op. at 11. Where the law and facts must clearly favor Garcia in order

for her to prevail, the majority’s equivocation cements its error.
GARCIA V. GOOGLE, INC. 23

relief, that the balance of equities tips in his favor, and that an

injunction is in the public interest.” Winter v. Natural Res.

Def. Council, Inc., 555 U.S. 7, 20 (2008).

A. Garcia’s Likely Success on the Merits of Her

Copyright Claim

The district court concluded that it was unclear whether

Garcia had a copyright interest in her acting performance.

The district court’s discretionary conclusion hardly appears

illogical or implausible.

1. Copyright Interest

A protected interest under the Copyright Act must be an

“original work[] of authorship fixed in any tangible medium

of expression. . . .” 17 U.S.C. § 102(a). Garcia does not

clearly have a copyright interest in her acting performance,

because (1) her acting performance is not a work, (2) she is

not an author, and (3) her acting performance is too personal

to be fixed.2

a. Work

To be protected, Garcia’s acting performance must be a

“work.” Id. Congress has listed examples of copyrightable

works, like architectural works, motion pictures, literary

works, and pictorial or sculptural works. Id. The nature of

these works is significantly different from an actress’s

2 The majority relies solely on a showing of originality to conclude

Garcia has a copyrightable interest in her acting performance, maj. op. at

8 (citing Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345

(1991)), but the Constitution and the Copyright Act require much more.
24 GARCIA V. GOOGLE, INC.

individual performance in a film, casting doubt on the

conclusion that the latter can constitute a work. See Microsoft

Corp. v. C.I.R., 311 F.3d 1178, 1184–85 (9th Cir. 2002)

(“The doctrine of noscitur a sociis counsels that words should

be understood by the company they keep.”).

Section 101 of the Act is also instructive, because it

differentiates a work from the performance of it. It defines

“perform a ‘work’” to mean “to recite, render, play, dance or

act it.” 17 U.S.C. § 101 (emphasis added). Given this

provision, it is difficult to understand how Congress intended

to extend copyright protection to this acting performance.

While Congress distinguishes the performance from the work

itself, the majority blurs this line. Its position contemplates

something very different from amalgamating independently

copyrightable interests into a derivative work. See id. at

§ 103(b).

Consistent with section 101, section 102(b) outlines that

which is not given copyright protection. It states: “In no case

does copyright protection for an original work of authorship

extend to any idea, procedure, process, system, method of

operation, concept, principle, or discovery, regardless of the

form in which it is described, explained, illustrated, or

embodied in such work.” Id. at § 102(b). An acting

performance resembles the “procedure” or “process” by

which “an original work” is performed. Id. Therefore, “[i]n

no case does copyright protection” extend to an acting

performance, “regardless of the form in which it is described,

illustrated, or embodied in” the original work. Id.

In sum, a motion picture is a work. Id. at § 102(a). A

segment independently produced and then incorporated into

a motion picture is also a work. See, e.g., Effects Assocs., Inc.
GARCIA V. GOOGLE, INC. 25

v. Cohen, 908 F.2d 555, 556 (9th Cir. 1990). However, the

Copyright Act does not clearly place an acting performance

within its sphere of copyrightable works. As a result, the law

and facts do not clearly favor finding a copyrightable interest

in Garcia’s acting performance.

b. Authorship

Like the work requirement, the Copyright Act also

premises copyright protection on authorship. 17 U.S.C.

§ 102(a). Authorship is also a constitutional copyright

requirement. See U.S. Const. Art. I, § 8, cl. 8; Burrow-Giles

Lithographic Co. v. Sarony, 111 U.S. 53, 56 (1884).

Aalmuhammed v. Lee is the most relevant case in this circuit

on the question of authorship. 202 F.3d 1227 (9th Cir. 2000).

Though the Aalmuhammed court discussed authorship in the

context of joint authors of a film (which Garcia does not

claim to be), it articulated general principles of authorship

that assist in analyzing Garcia’s interest in her acting

performance.3

The Aalmuhammed court explained that “[t]he word

[author] is traditionally used to mean the originator or the

person who causes something to come into being.” Id. at

1232. In other words, the author is the “person with creative

control.” Id. Thus, “an author ‘superintends’ the work by

exercising control.” Id. at 1234 (quoting Burrow-Giles,

 

3 Furthermore, Garcia’s interest in her acting performance may best be

analyzed as a joint work with Youssef, considering she relied on

Youssef’sscript, equipment, and direction. See 17 U.S.C. § 101 (“A ‘joint

work’ is a work prepared by two or more authors with the intention that

their contributions be merged into inseparable or interdependent parts of

a unitary whole.”).
26 GARCIA V. GOOGLE, INC.

111 U.S. at 61) (alteration omitted). Another framing by the

court defined an author as “‘he to whom anything owes its

origin.’” Id. at 1233 (quoting Burrow-Giles, 111 U.S. at 58).

An author might also be “‘the inventive or master mind’ who

‘creates, or gives effect to the idea.’” Id. at 1234 (quoting

Burrow-Giles, 111 U.S. at 61). Indeed, authorship “requires

more than a minimal creative or original contribution to the

work.” Id. at 1233 (citing Burrow-Giles, 111 U.S. at 58)

(emphasis added).4 These principles comport with the

“general rule,” that “the author is the party who actually

creates the work, that is, the person who translates an idea

into a fixed, tangible expression entitled to copyright

protection.” Commty. for Creative Non-Violence v. Reid,

490 U.S. 730, 737 (1989).

In concluding that Aalmuhammed was not a joint author

of the film, Malcolm X, the court found that he (1) “did not at

any time have superintendence of the work,” (2) “was not the

person ‘who . . . actually formed the picture by putting the

persons in position, and arranging the place,” (3) could not

“benefit” the work “in the slightest unless [the director] chose

to accept [his recommendations],” and (4) made “valuable

contributions to the movie,” but that alone was “not enough

for co-authorship of a joint work.” Aalmuhammed, 202 F.3d

at 1235.

Garcia’s contribution is less significant than

Aalmuhammed’s. She conceded in her complaint and

affidavit that she had no creative control over the script or her

performance. Youssef provided the script, the equipment, and

the direction. As a result, Garcia was not the originator of

 

4 The majority opinion cannot coexist with this statement. See maj. op.

at 8.
GARCIA V. GOOGLE, INC. 27

ideas or concepts. She simply acted out others’ ideas or script.

Her brief appearance in the film, even if a valuable

contribution to the film, does not make her an author. Indeed,

it is difficult to understand how she can be considered an

“inventive or master mind” of her performance under these

facts.

The majority dismisses Aalmuhammed as inapposite,

instead bolstering its conclusion with reference to acting

manuals and treatises. See maj. op. at 8–9. In so doing, it goes

too far in attempting to distinguish Aalmuhammed. First, the

Aalmuhammed court articulated general principles of

authorship that it pulled from the Supreme Court case,

Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53

(1884). See, e.g., Aalmuhammed, 202 F.3d at 1233 (“BurrowGiles is still good law. . . .”). Burrow-Giles has nothing to do

with joint works; instead, the Court interpreted “author” as

featured in Article I, Section 8, Clause 8 of the U.S.

Constitution. See 111 U.S. at 56. Second, the majority’s one

quotation from Aalmuhammed, maj. op. at 9, is taken out of

context. The very next line in that opinion makes clear that

copyright protection is premised on authorship, whether the

work is joint or otherwise:

We hold that authorship is required under the

statutory definition of a joint work, and that

authorship is not the same thing as making a

valuable and copyrightable contribution. We

recognize that a contributor of an expression

may be deemed to be the “author” of that

expression for purposes of determining

whether it is independently copyrightable.
28 GARCIA V. GOOGLE, INC.

Aalmuhammed, 202 F.3d at 1232. Finally, Section 102(a) of

the Copyright Act and Article I, Section 8, Clause 8 of the

U.S. Constitution both premise copyright protection on

authorship. Therefore, not only does the majority decline to

apply the most relevant precedent in this circuit on the

question before it, it also reads the authorship requirement out

of the Copyright Act and the Constitution.5

Even the commentators agree that Aalmuhammed not

only applies to Garcia’s claim, but also forecloses her

realization of a copyrightable interest in her acting

performance. See, e.g., Dougherty, Not a Spike Lee Joint?, 49

UCLA L. Rev. at 306 (“Under the judicially enhanced joint

work requirements,” an actress’s performance would be

“physically inseparable from other cinematic contributions.”

(citing Aalmuhammed, 202 F.3d at 1232)); Lee,

Entertainment and Intellectual Property Law § 12:7 (2013)

(“Under [Aalmuhammed], . . . individual contributors will

rarely qualify as joint authors”).

The majority lauds an actress’s creative role in a film,

maj. op. at 8, but the practical impact of its decision must not

be ignored. Garcia’s role in the film is minimal. Yet the

majority concludes that she somehow created a work

Congress intended to protect under the Copyright Act.

Considering the number of contributors who inject the same

or a greater amount of creativity into a film, the majority’s

omission of any inquiry into authorship indeed creates “an

5 The majority’s sole reliance on Feist Publications to conclude that an

acting performance is copyrightable, maj. op. at 8–9, gives insufficient

weight to the constitutional and statutory authorship requirement. In Feist

Publications, the specific question was not of authorship but of originality.

See 499 U.S. at 347.
GARCIA V. GOOGLE, INC. 29

impenetrable thicket of copyright.” Maj. op. at 12.

Meanwhile, though Aalmuhammed’s interpretation of the

Copyright Act has been debated in academic circles, “it

adopts a standard that promotes clarity in the motion picture

industry.” Lee, Entertainment and Intellectual Property Law

§ 12:7.

Because Garcia does not qualify as an author under

Aalmuhammed, the law and facts do not clearly favor

protecting her acting performance under the Copyright Act.

c. Fixation

Lastly, the subject matter protected by the Copyright Act

must also be “fixed in [a] tangible medium of

expression. . . .” 17 U.S.C. § 102(a). Copyright preemption

cases are instructive on the question of fixation.

For preemption purposes, the courts generally agree that

“the scope of the subject matter of copyright law is broader

than the protection it affords.” Montz v. Pilgrim Films &

Television, Inc., 649 F.3d 975, 979 (9th Cir. 2011) (en banc);

see U.S. ex rel Berge v. Bd. of Trs. of Univ. of Ala., 104 F.3d

1453, 1463 (4th Cir. 1997). In other words, the subject matter

underlying a state law claim preempted by the Copyright Act

may nevertheless not be protected by the Copyright Act. By

implication, subject matter supporting a non-preempted state

law claim is definitely not protected by the Copyright Act. A

number of cases from this circuit discuss subject matter akin
30 GARCIA V. GOOGLE, INC.

to an acting performance and prove useful on the question of

fixation.6

In Midler v. Ford Motor Co., Bette Midler sued Ford for

misappropriating her voice in a commercial. 849 F.2d 460,

462 (9th Cir. 1988). Although Ford properly had a license

from the song’s copyright holder, it paid someone to imitate

Midler in singing the song Midler made famous. Id. Although

ultimately holding for Ford, the court rejected its argument

that Midler’s claim was preempted by copyright law. “A

voice is not copyrightable. The sounds are not ‘fixed.’ What

is put forward . . . here is more personal than any work of

authorship.” Id.; see also Sinatra v. Goodyear Tire & Rubber

Co., 435 F.2d 711 (9th Cir. 1970).

In Laws v. Sony Music Entertainment, we distinguished

Midler from its facts in holding that the plaintiff’s claim was

preempted by the Copyright Act, because “Sony was not

imitating ‘Very Special’ as [the plaintiff] might have sung it.

Rather, it used a portion of ‘Very Special’ as sung by [the

plaintiff].” 448 F.3d 1134, 1141 (9th Cir. 2006). Where Sony

had a license to the entire song, its use of a portion of it under

that license could not be attacked outside the copyright laws.

Id.

6 The majority opinion dismisses the line of copyright preemption

precedent. Maj. op. at 9 (“Midler isn’t a copyright case at all—it’s a right

of publicity case that happens to discuss copyright in the context of

preemption.”). However, these cases feature the same judges interpreting

the same Copyright Act, whether the question is one of copyright

infringement or copyright preemption. Thus, the majority’s distinction is

without difference; it fails to overcome the fact that subject matter

underlying a non-preempted state law claim, like that in Midler, is clearly

without the Copyright Act’s protection. See Montz, 649 F.3d at 979.
GARCIA V. GOOGLE, INC. 31

Jules Jordan Video, Inc. v. 144942 Canada, Inc.,

617 F.3d 1146 (9th Cir. 2010), is like Laws. Defendants in

Jules Jordan copied (without authorization) pornographic

DVDs produced and copyrighted by Jules Jordan Video, then

reproduced, counterfeited, and sold their copies to third

parties. Id. at 1153. Because Jules Jordan held a copyright in

the original DVDs, this court found that the Copyright Act

preempted its state law right of publicity claim against

Defendants.

The subject matter in Jules Jordan and Laws concerned

entire copyrighted works—video and music recordings.

Differently, Midlerinvolved the imitation of a singer’s voice.

Combined, these cases show that, just as the singing of a song

is not copyrightable, while the entire song recording is

copyrightable, the acting in a movie is not copyrightable,

while the movie recording is copyrightable.7

A musical recording involves many moving parts,

including the tune, lyrics, instrumental musicians, vocalists,

and a production team that edits and prepares the final song.

While the ultimate product is copyrightable, Ninth Circuit

precedent dictates that a vocalist’s singing of the song is not

copyrightable. See Midler, 849 F.2d at 462. An acting

performance depends upon similar moving parts: a script,

multiple actors’ and actresses’ performances, guidance from

directors and staff, and editing and other production

preparation. The movie is ultimately copyrightable. See

 

7

 This is not the case where an independently authored clip is used in a

film, as in Effects Assocs., 908 F.2d at 557–58. Rather, this analogy

assumes facts similar to the instant case: an actress acting out a script she

did not write under the direction of someone else who provides all of the

instruments, tools, and leadership.
32 GARCIA V. GOOGLE, INC.

17 U.S.C. § 102(a). But one actress’s individual acting

performance in the movie, like a vocalist singing a song, “is

more personal than any work of authorship.” Midler,

849 F.2d at 462. As a result, it is not fixed. See id.

Just as “an actor does far more than speak words on a

page,” maj. op. at 8, so too does a vocalist. Indeed, one might

say that otherwise, “every schmuck” is a vocalist, “because

everyone . . . knows how to read.” Id. (quoting Sanford

Meisner & Dennis Longwell, Sanford Meisner on Acting 178

(1987)) (quotation marks omitted). An actress like Garcia

makes a creative contribution to a film much like a vocalist’s

addition to a musical recording. Garcia did not write the

script; she followed it. Garcia did not add words or thoughts

to the film. She lent her voice to the words and her body to

the scene. Her creativity came in the form of facial

expression, body movement, and voice. Similarly, a singer’s

voice is her personal mobilization of words and musical notes

to a fluid sound. Inflection, intonation, pronunciation, and

pitch are the vocalist’s creative contributions. Yet, this circuit

has determined that such, though perhaps creative, is too

personal to be fixed. See Midler, 849 F.2d at 462.

Under this line of cases, an actress’s performance in a

film is more like the personal act of singing a song than the

complete copyrighted works in Laws and Jules Jordan. As a

result, it does not seem copyrightable. Thus, the law and facts

do not clearly support Garcia’s claim that her acting

performance is protected under the Copyright Act.
GARCIA V. GOOGLE, INC. 33

Considering work, authorship, and fixation, Garcia has

not demonstrated how the facts and law clearly favor her

claim of a copyrightable interest in her acting performance.8

2. Work for Hire Doctrine

Even if the majority were correct in finding a

copyrightable interest in Garcia’s acting performance,

preliminary injunctive relief would be unwarranted. The

district court did not address the application of the work for

hire doctrine. Yet, the law and facts do not clearly show that

Garcia was not working for hire.

“In the case of a work made for hire, the employer or

other person for whom the work was prepared is considered

the author for purposes of this title. . . .” 17 U.S.C. § 201(b).

“A ‘work made for hire’ is a work prepared by an employee

within the scope of his or her employment. . . .” Id. at § 101.

Therefore, “[i]n determining whether a hired party is an

employee under the general common law of agency, we

consider the hiring party’s right to control the manner and

means by which the product is accomplished.” Reid, 490 U.S.

at 751.

8 The majority’s amended opinion also attempts to hedge its conclusion

that Garcia has a copyright interest in her acting performance by avoiding

counter arguments it failed to address, because they were not raised by the

parties. Maj. op. at 11, 19. Yet, the majority could consider these

arguments sua sponte “under exceptional circumstances, where substantial

public interests are involved, or where to not do so would be unduly harsh

to one or both of the parties.” United States v. Hoyt, 888 F.2d 1257, 1258

(9thCir. 1989). The majority’s failure to even engage this inquiry, instead

quickly dismissing arguments against its view, confirms its error.
34 GARCIA V. GOOGLE, INC.

Among the other factors relevant to this

inquiry are the skill required; the source of the

instrumentalities and tools; the location of the

work; the duration of the relationship between

the parties; whether the hiring party has the

right to assign additional projects to the hired

party; the extent of the hired party’s discretion

over when and how long to work; the method

of payment; the hired party’s role in hiring

and paying assistants; whether the work is

part of the regular business of the hiring party;

whether the hiring party is in business; the

provision of employee benefits; and the tax

treatment of the hired party.

Id. at 751–52 (internal citations omitted). Though “[n]o one

of these factors is determinative,” id. at 752, the hiring party’s

control “is the central inquiry here.” JustMed, Inc. v. Byce,

600 F.3d 1118, 1125 (9th Cir. 2010).

The work for hire doctrine “is important in the analysis of

motion picture authorship because in the United States most

contributions to a motion picture are created as works made

for hire.” Dougherty, Not a Spike Lee Joint?, 49 UCLA L.

Rev. at 238. Here, Garcia conceded in her complaint and

affidavit that Youssef “managed all aspects of production,”

controlling both the manner and means of making the film,

including the scenes featuring Garcia. Further, this “central”

factor is not the only one supporting a work for hire finding

here. The bulk of the other factors also suggest that Garcia is

an employee. Youssef provided the instrumentalities and

tools, dictated the filming location, decided when and how

long Garcia worked, and was engaged in the business of film

making at the time. Additionally, Garcia did not hire or pay
GARCIA V. GOOGLE, INC. 35

assistants. Contrary to the majority’s conclusion, maj. op. at

12–14, the facts and law do not clearly favor finding that

Garcia was not working for hire.9

In Reid, the Court decided a sculptor was not an

employee, even though Community for Creative NonViolence “directed enough of Reid’s work to ensure that he

produced a sculpture that met their specifications.” Reid,

490 U.S. at 752. However, “all the other circumstances

weigh[ed] heavily against finding an employment

relationship.” Id. This case differs considerably from Reid.

The central factor of control and many other factors “weigh

heavily” for finding an employment relationship.

In sum, the majority gives zero deference to the district

court’s position on the likelihood for success factor. To

justify its opinion, the majority must show the district court

abused its discretion in determining the law and facts did not

clearly show Garcia was likely to succeed on the merits. This,

the majority has failed to do.

B. Irreparable Harm

The district court decided that because “[t]he Film was

posted for public viewing on YouTube” five months prior to

Garcia bringing suit, she “has not demonstrated that the

requested preliminary relief would prevent any alleged

harm.” The majority has failed to demonstrate how the

district court abused its discretion in so holding.

9 While the majority may dispute which person was actually directing

the film, it cannot overcome Garcia’s own admissions in her complaint

that substantiate these facts; she was not in control.
36 GARCIA V. GOOGLE, INC.

Indeed, the district court’s application of the law to the

facts of this case here was not an abuse of discretion. A

“[p]laintiff’s long delay before seeking a preliminary

injunction implies a lack of urgency and irreparable harm.”

Oakland Tribune, Inc. v. Chronicle Publ’g Co., 762 F.2d

1374, 1377 (9th Cir. 1985). The district court gave significant

weight to Garcia’s delay in filing suit, even given Garcia’s

explanation for her delay. See maj. op. at 16–17. This is not

illogical or implausible. Were Garcia really trying to protect

her purported copyright interest in her acting performance,

one would expect her to have brought this action immediately

after learning of the alleged infringing behavior. Considering

“[t]he relevant harm is the harm that . . . occurs to the parties’

legal interests,” Garcia has failed to explain her delay in

terms of harm to her alleged copyright interest. See Salinger

v. Colting, 607 F.3d 68, 81 & n.9 (2d Cir. 2010) (“[T]he

justification of the copyright law is the protection of the

commercial interest of the artist/author. It is not to coddle

artistic vanity or to protect secrecy, but to stimulate creation

by protecting its rewards.” (internal quotation marks

omitted)).

Further, by Garcia’s own admission, the film has been

widely discussed and disseminated; Garcia admits in her

affidavit that she “went public and advised the world through

media that [she] did not condone the film.” Thus, while

Garcia has provided undisputed evidence of past threats and

injuries, she has failed to link her allegations of future harm

to potential future viewings of the film on YouTube. See

Perfect 10 v. Google, Inc., 653 F.3d 976, 982 (9th Cir. 2011);

Ctr. for Food Safety v. Vilsack, 636 F.3d 1166, 1173 (9th Cir.

2011).
GARCIA V. GOOGLE, INC. 37

Therefore, it is not illogical or implausible to conclude

that the law and facts do not clearly demonstrate how Garcia

will suffer continued irreparable harm caused by the presence

of the film on YouTube. See Small v. Operative Plasterers’

and Cement Masons’ Int’l Ass’n Local 200, 611 F.3d 483,

494 (9th Cir. 2010).

Rather than focusing on the logic or plausibility of the

district court’s decision, the majority substitutes its own

explanation of why Garcia’s delay should not be held against

her. Maj. op. at 16–18. However, the weight attached by the

district court to certain facts when measuring irreparable

harm is not for this court to second guess. See Earth Island

Inst. v. Carlton, 626 F.3d 462, 475 (9th Cir. 2010).

C. Balancing the Equities

When considering the propriety of preliminary injunction

relief, “a stronger showing of one element may offset a

weaker showing of another.” Alliance for the Wild Rockies,

632 F.3d at 1131. The district court applied this concept in

concluding preliminary injunctive relief was unwarranted

without considering the balance of the equities or the public

interest.

However, the balance of the equities does not clearly

favor Garcia. A court must “balance the interests of all parties

and weigh the damage to each.” Stormans, Inc. v. Selecky,

586 F.3d 1109, 1138 (9th Cir. 2009).

Google argues that the balance of the equities does not

clearly favor Garcia, because “[a] court order requiring

removal from YouTube of the Film or any portion thereof

would impose a substantial burden on free expression,
38 GARCIA V. GOOGLE, INC.

without preventing any future harm to Appellant.” Garcia is

only faced with potential infringement of her potential

copyright interest pending a final disposition of this lawsuit.

Further, she is not completely without fault in these

circumstances. If she valued her acting performance to the

extent she now claims, why didn’t she protect her

performance by contract? The facts evidence that she acted

for three days and was paid $500 dollars. Balancing the harm

faced by both Garcia and Google, the law and facts do not

clearly favor Garcia.

In its basis concerning the balance of the equities, the

majority discusses Youssef’s reproachable conduct. Maj. op.

at 18–19. However, Youssef is not a party to this appeal, and

Google was not a party to any of Youssef’s actions.

Therefore, the balance of the equities does not clearly

favor Garcia.

D. Public Interest

“In exercising their sound discretion, courts of equity

should pay particular regard for the public consequences in

employing the extraordinary remedy of injunction.” Johnson

v. Couturier, 572 F.3d 1067, 1082 (9th Cir. 2009) (quoting

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7,

24(2008)) (emphasis added). In fact, “‘the court may in the

public interest withhold relief until a final determination of

the rights of the parties, though the postponement may be

burdensome to the plaintiff.’” Stormans, 586 F.3d at 1139

(quoting Weinberger v. Romero-Barcelo, 456 U.S. 305,

312–313 (1982)).
GARCIA V. GOOGLE, INC. 39

The public’s interest in a robust First Amendment cannot

be questioned. See Sammartano v. First Judicial Dist. Court,

303 F.3d 959, 974 (9th Cir. 2002). Opposite this vital public

interest is Garcia’s allegation of copyright infringement.

Properly enforcing the Copyright Act is also an important

public interest. See Small v. Avanti Health Sys., LLC,

661 F.3d 1180, 1197 (9th Cir. 2011). Indeed, if Google were

actually infringing Garcia’s copyright, the First Amendment

could not shelter it. See Eldred v. Ashcroft, 537 U.S. 186,

219–20 (2003).

But the case at bar does not present copyright

infringement per se. Instead (in an unprecedented opinion),

the majority concludes that Garcia may have a copyright

interest in her acting performance. Maj. op. at 10. As a result,

Google’s contention, that issuing a preliminary injunction on

these facts may constitute a prior restraint of speech under the

First Amendment, identifies an important public interest.

Thus, the law and facts do not clearly demonstrate how

granting a preliminary injunction in Garcia’s favor would

serve the public interest.

III. Conclusion

The Stanley standard counseling extreme caution when

considering granting a mandatory preliminary injunction is

premised on principles of judicial restraint. Instead, the

majority abandons restraint to procure an end (ordering the

film be taken down) by unsuitable means (the Copyright Act).