F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

C I N D Y L E E G A R

C I A , Plaintiff-Appellant
,

v

.

G O O G L E , I

N C ., a Delaware Corporation; Y O U T U B E , L L C, a California limited liability company ,

Defendants-Appellees
,

and

N A K O U L A B A S S E L E Y N A K

O U L A , an individual, AKA Sam B acile; M A R K B A S S E L E Y Y O U S S E F ; A B A N O B B A S S E L E Y N A K

O U L A ; M A T T H E W N E K O L A ; A H M E D H A M D Y ; A M A L N A D A ; D A

N I E L K. C A R

E S M A N ; K R I T B A G D I F R

A T ; S O B H I B U S H R

A ; R O B E R T B A C I L Y ; N I C O L

A B A C I L Y ; T H O M A S J

. T A N A S ; E R W I N S A L A M E H ; Y O U S S E F F M. B A S S E L E Y ; M A L I D A H L

A W I , Defendants

. N o. 12-57302

D.C. No. 2:12-cv-08315- MW F -VB K

ORDER AND AMENDED OPI NI ON

A ppeal from the United States District Court for the Central District of California Michael W . F itz g erald, District J udg e, PresidingG A R C I A V

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Arg ued and Submitted

J une 26, 2013—Seattle, W ashing ton

F iled F ebruary

26, 2014 Amended J u ly

11, 2014

B efore: Alex Koz inski, Chief J udg e, Ronald M. Gould and N. Randy

Smith, Circuit J udg es.
Opinion by

Chief J udg e Koz inski; Dissent by

J udg e N.R. Smith

SUMMARY *

C opyright / P relim inary Injunction

The p anel f

iled (1) an order amending a previous opinion

a n d d issent and stating that a petition f or rehearing en banc remained pending
, (2) an amended o pinion, and (3 ) a n amended dissent in an appeal f rom the district court’s denial in a c opy r ig ht case of a preliminary inju n ction requiring the removal from YouTube.com of an anti-I slamic film that used a performance that the plaintiff made for a different film.

Reversing the district c o u rt’s denial of the preliminary injunction, the panel concluded that the plaintiff e stablis h ed

a likelihood of success on the merits of her claim of infring ement of her performance within the film because she proved (1) that she likely had a protectible interest in the performance and (2) that th e f ilmmaker did not own an

* T h is su m m ary co n stitu

t es n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.G A R C I A V

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interest a s a wor k f

or hire and ex ceeded any implied license to use the plaintiff’s performance.

The panel held that the plaintiff established the likelihood that irreparable h arm w ou ld result if an injunction did not issue because she was subject to d eath threats and took action

as soon as she beg an receiving the threats. The plaintiff also established sufficient causal connection betwe e n the infring ement of her copy

rig ht and the harm she alleg ed.

The panel also held that the balance of the equities a nd the public interest weig hed in favor of injunctive relief.

Dissenting
, J udg e N.R. Smith wrote that the facts and law did not clearly fa v o r issuing a mandatory preliminary injunction to the plaintiff. He w rote that the plaintiff did not establish a likelihood that she h ad a copy rig htable interest in her acting p erformance, n o r did she c l e a r l y show that the performance was not a work made for hire. I n addition, the district court did not abuse its discretio n i n its ruling on irreparable harm, and the balance of the equities and the public interest did not favor the i s s u a nce of a preliminary injunction.

COUNSEL

M. Cris Armenta (arg

ued), T h e Armenta L aw F irm APC, L os Ang eles, California a n d Credence Sol, Chauvig ng , F rance, for Plaintiff-Appellant.

Timo t h y L

. Alg er (arg

ued) and Sunita B ali, Perkins Coie L L P, Palo Alto, California, for Defendants-Appellees.G A R C I A V

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ORDER

The opinion and dissent filed F ebruary 26, 2 0 1 4
, a nd reported a t 743 F .3d 1258, are amended to conform t o the attached Amended Opinion an d A mended Dissent, 12-57302. No further petitions for rehearing will b e entertain ed. The petition for rehearing

en banc remains pending

.

OP INION

KOZ I NSKI , Chief J udg e :

W h ile answering a casting call for a low-budg et amateur film do e s n’t often lead to stardom, it also rarely turns an aspiring actress into the subject of a fatwa. B ut that’s ex actly what h appened to Cindy L ee Garcia when she ag reed t o a ct in a film with the working title “Desert W arrior.”

The film’s writer a

n d p roducer, Mark B asseley Youssef—who also g oes by t he names Nakoula B asseley Nakoula and Sam B acile—cast Garcia in a minor role. Garcia w as g iven the four pag es o f the script in w h i c h her character appeared and p aid approx imately $500 for three a nd

a half day s of f

ilming

. “Desert Warrior” never materializ ed. I nstead, Garcia’s scene was used in an anti-I slamic film titled “I nnocence of Muslims.” Garcia first saw “I nno c e nce o f M u s l ims” after it was uploaded to YouTube.com and she discovered that her brief perfo r mance had been partially dubbed o v er s o that she appeared to be asking
, “I s y our Mohammed a child molester? ”G A R C I A V

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T h e se, of course, are fig hting words to many faithf u l Muslims and, after th e film aired on Eg y ptian television, there were protests that g enerated worldwide news c overag e

. An Eg y ptian cleric issued a fatwa, ca l l i n g for the killing o f

eve r y one involved with the film, and Garcia soon b eg an receiving death threats. She responded by taking a number o f security precautions and a sking that Goog le remove the video from YouTube.

I n all, Garcia filed eig ht takedown notices under the Dig ital Millennium Copy rig ht Act. See generally 17 U .S.C. § 5 1 2

. W hen Goog le resisted, she supplied substanti v e

ex p lanations as to why the f ilm should b e taken down. Goog le still r e fused to act, so G arcia applied for a temporary restraining o rder seeking removal of the film from YouTube, claiming that the posting of the video infring ed her copy rig ht in her performance. 1 The district court treated the a pplication

as a motion for a preliminary injunct ion, and denied it because Garcia had delay ed in b ring ing the action, had failed
to demonstrate “that the requested p rel i m inary relief would prevent any alleg ed harm” a nd was unlikely to succeed on the merits because she’d g ranted Youssef a n i m plied license to use her performance in the film.

I. Discussion

W h ile we review the d enial of a preliminary injunction for abuse of discretion, Alliance for the W ild R o ck i es v. Cottrell
, 632 F .3d 1 1 27, 1131 (9th Cir. 2 011), t h e “ l e gal premises underlying a prelim i n a r y injunction” are reviewed de novo. A&

M Records, Inc. v. Napster, Inc.
, 284 F

. 3d 1091,

1 A lth o u g h Garcia’ s su it also n am ed th e f ilm ’ s p ro d u cers, o n ly Go o g le,

w h ich o w n s Yo u T u b e, an sw ered th e co m

p lain t.G A R C I A V

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1096 (9th Cir. 2002). I n g ranting or d e n y i n g a preliminary injunction, t he district court must c o nsider four f actors: a plaintiff’s likely success o n the merits, th e likelihood that irreparable harm will result if an injunction doesn’t issue, the balance of equities and the public interest. W inter v. Natural Res. D ef. Council
, 5 55 U .S. 7
, 20 (2008). The district court fou nd ag ainst 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 c opy rig ht interest in “I nnocence o f Muslims” itself; far from it. I nstead, she claims that her performance within the film is independently c opy rig htable and that she r etained an interest in that copy rig ht. T o succeed on this claim, Garcia must prove not only that she likely has

an independent interest in h er performance but t h a t 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 T h e d issen t su g g ests th at w e m u s t d ef er to th e d istrict co u rt’ s statem en t th at “ th e n atu

re o f [Garcia’ s] co p y

rig h t in terest is n o t clear.” B u t w e d ef er to a lo w er co u rt’ s d

ecisio n , n o t its eq u iv ocatio n

.

It’ s w orth n o t in g w

h at t h e d istrict co u

rt’ s th ree- p ag e o rd er d o esn ’ t do : It d o esn ’ t d ecid e w

h eth er Garc i a h as a co p y rig h t in terest in h er p erf o rm an ce, w

h eth er h er p erf

o rm an ce is a “ w o rk ,” w

h eth er Garcia is th e

“ au th o r” o f h e r p erf

o rm an ce o r w

h eth er h er perf

o rm an ce is a w o rk f

or h ire. No r d o es it ad d ress th e b alan ce o f th e eq u ities o r th e p u blic in terest, d esp ite th e f

act th at a d istrict co u rt m

u s t “ w eig h in its an aly sis th e p u b l ic in terest im

p licated b y [an ] in

j u n ctio n , as W

in ter n o w req u ires.” Sto rma n s, In c. v

. S elecky , 5 8 6 F.3 d 1 1 0 9, 1 1 3 8 (9 th Cir. 2 0 0 9 ).G A R C I A V

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1. An Independent Copyright Interest

A film is ty

pically c oncei v e d of as “a joint work

co n sisting of a number of contributions by different ‘authors.’” 1 Melville B

. Nimmer & D avid Nimmer, Nimmer

on Copyright § 6.05 at 6

– 14 (1990). Garcia arg ues that she

never intended her performance to be part of a joint work, a nd under our precedent she doesn’t qualify as a joint author. See Aalmu h ammed v. Lee
, 2 02 F .3d 1227, 1231–36 (9th Cir. 2000). The dissent claims that “Garcia’s interest in her acting performance may best be analy z ed as a joint work with Youssef.” Dissent 2 5 n.3. B ut w o r k is joint only if the authors involved in its creation intend that it be so. See 17 U.S.C. § 101. Garcia e x pressly d i s c l a i m s such intent a nd there i s n o evidence that Youssef intended to create a joint work. W e thus have no basis for finding a joint intent on this record.

B u t just because Garcia isn’t a joint a uthor of “I nnocence of Muslims ” d o e sn’t mean she doesn’t have a copy rig ht interest in her own performance within the film. W hether an individual who makes an independently copy rig htable contribution to a joint work can retain a copy rig ht interest in that contribution is a rarely litig ated question. See Thomson

v. Larson
, 147 F

. 3 d 195, 2 06 (2d Cir. 1998) (dismissing similar a rg ument on pr o ce d u ral g rounds); see also David Nimmer, Address, Copyright in the Dead Sea Scrolls: Authorship a n d O riginality
, 38 Hous. L

. Rev. 1, 1 86–87 & n.942 (2001). Nothing in the Copy rig ht Act sug g ests that a copy rig ht interest in a creative contribution to a work simply disappears b ecause the contribu t o r doesn’t qualify as a joint author of the entire work. 1 7 U.S.C. § 102(a) (“Copy rig ht protection subsists

. . . in orig inal works of a u t h o rship fix ed in any tang ible medium

. . . .”). W h ere, as h ere, the artisticG A R C I A V

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contribution is f

i x e d
, the key question remains whether it’s sufficiently

creative to be protectible. 3

Goog le arg ues that Garcia didn’t make a protectible contribution to the film b ecause Youssef wrote the dialog ue she spoke, manag ed all aspects of the production and l a t e r dubbed over a portion o f her scene. B ut an actor d o es far

more than speak w ords on a pag e; he must “ l i v e h i s part inwardly
, and then

. . . g ive to his ex p erience an e x ternal embodiment.” Constantin Stanislavski, An Actor Prepares 15, 219 (Eliz ab eth Rey

nolds Hapg o od trans., 1936). That embodiment include s body lang uag e, facial ex pression a nd reactions to o ther actors and elements of a s c e n e

. Id. at 2 1 8

– 1 9

. Otherwise, “every shmuck

. . . is an actor becau s e every one

. . . kno w s h o w to r ead.” Sanford Meisner & Dennis L o ng w ell, Sanford Meisner on Acting 178 (1987).

An actor’s performance, when fix e d
, i s c o p y r ig htable if it evinces “some minimal deg ree of creativity

. . . ‘no matter how crude, h umble or obvious’ it mig ht be.” Feist P ubl’ns, Inc. v. R u ral Tel. Serv. Co.
, 499 U.S. 340, 345 (1991) (quoting 1 Nimmer on Copyright § 1.08[ C] [ 1] ). That is true

w hether the actor speaks, is dubbed over or, like Bu s t e r Keaton, performs without any words at all. C f

. 1 7 U .S.C. § 102(a)(4) (noting

“pantomimes and choreog raphic works”

are elig ible for copy

rig h t protection). I t’s clear that Garcia’s performance meets these minimum requirements.

3 Neith er p arty raised th e i ssu e o f w h e t h e r t h e au th o r o f a d ram atic
p erf o rm an ce m

u st p erso n ally f

ix h is w o rk in a t an g ib le m ed iu m

. B ecau s e th e q u estio n i s n o t p ro perly bef o re u s, w e d o n o t d ecid e it. T h e p arties are f ree to raise it in th e d istrict co u rt o n rem an d

.G A R C I A V

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Aalmuhammed isn’t to the c o n trary because it does not, a s the dissent would h ave it, “ar t i c u late[ ] g eneral principles o f authorship.” Dissent 27. Aalmuhammed only discusses what is required for a cont r ibutor to a work to assert joint ownership over the entire work: “W e hold that authorship is required under the statutory definition of a joint w ork, a nd that authorship is not the same thing a s making a valuable a nd

c o p y r i g h t a b l e c o n t r i b u t i o n

. ” 2 0 2 F. 3 d a t 1 2 3 2

. Aalmuhammed plainly contemplates that an indivi dual c an make a “copy

r ig htable c ontribution” and y et not become a joint author of the whole work. Id. F o r ex ample, the author of a sing le poem does not necessarily become a co-author of the antholog y in which the p oem is published. I t makes sense to impos e h ei g h tened requirements on those who would leverag e their individual contribution into ownership of a g reater w hole, b ut those requi re m e n ts don’t apply to the
copy rig htability of a ll c r eative wo r k s , for which o nly a “minimal creative spark [ is] required by t he Copy rig ht A ct and the Constitution.” Feist Publ’ns , 499 U.S. at 363. 4

Nor does Midler v. Ford Motor Co.
, 8 4 9 F

. 2d 460 (9th Cir. 1988), speak to the problem before us. F irst, of course, Midler isn’t a copy

rig ht ca s e a t a ll—it’s a rig ht of publicity

c a s e that happens to discuss copy rig ht in the contex t o f preemption, not infring ement. Second, Midler discusses the
copy rig htabi l i t y o f a p e r f o rmer’s voice

—not h er performance.

4 Ou r d ecisio n to d ay d o es n ot “ read [] th e au t h o rsh ip req u irem en t o u t of th e Co p y rig h t A ct an d th e Co n s t i t u tio n .” Dissen t 2 8

. A n au th or “ in a

co n stitu tio n al sen se” is o n e “ ‘ to w h o m an y th in g o w es its o rig i n ;

o rig in ato r; m ak er.’ ” Feist Pu b l’n s , 4 9 9 U

. S

. a t 3 4 6 (q u o tin g Bu rro w-Giles Lith o gra ph ic Co

. v

. S

aro n y , 1 1 1 U.S. 5 3
, 5 8 (1 8 8 4 )). In o th er w o rd s, th e

c r e a t o r o f co p y

rig h tab le artistic ex p ressio n is an au th o r. Wh ich is w h y , f o r ex am p le, Sin éad O’ Co n n o r can claim a co p y rig h t in h er p erf

o rm an ce

o f “ No th in g C o m

p ares 2 U” ev en th o u g h th e so n g w as w ritten b y P rin ce.G A R C I A V

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See 849 F .2d at 462. A performer’s voice is analog ous to her imag e, which we’ve said “is not a w ork of authorship” under the Copy rig ht Act. Downing v

. Abercrombie & Fitch
, 265 F .3d 994, 1004 (9th Cir. 2001). B ut that doesn’t answer the question of whether the artist’s creativity
, ex pr es s e d through her voice or imag e , is p rotected by copy rig h t

. J ust because someone’s voice—its particular timbre a nd quality —can’t be copy

rig hted, doesn’t mean that a performance made using that v oice can never be protected. I n fact, many vocal performances are c opy rig hted. See, e.g. , Laws v. Sony Music Entm’t, Inc

. , 4 48 F .3d 1134, 1141 (9th Cir. 2006).

Recog niz ing that Garcia may have a copy rig ht interest in her performance isn’t the end of the inquiry

. A screenplay is itself a copy

rig htable creative work and a film is a derivative

w o rk of the screenplay on which it is based. See G illiam v

. Am. Broad. Cos.
, 538 F

. 2d 14, 20 (2d C ir. 1976); see also 1 7 U

. S

. C

. § 101; 2 Nimmer on Copyright § 2.10[ A] n.8. W h ere, as here, an actor’s performance is b a s ed o n a script, the performance is likewise d erivative of the script, such that the actor m i gh t b e considered to have infring ed the screenwriter’s copy

rig h t. And an infring ing derivative work isn’t entitled to copy

rig ht protection. See 17 U .S.C. § 103(a);

see also U.S. Auto Parts Network, I n c

. v. Parts Geek, LLC
, 692 F .3d 1009, 1016 (9th Cir. 2012).

Of co u r se, by hiring Garcia, g iving her the script a nd turning a camera on her, Youssef implicitly g ran t e d h er a license to p erform his screenplay

. See Effects Assocs., I nc. v. Cohen
, 908 F .2d 555, 558–59 ( 9 t h Cir. 1990). This d oesn’t

mean that Garcia owns a copy rig ht interest in the entire

s c e n e : She can claim c o p y rig ht in her own c ontribution but
not in “preex isting mate r i a l” such as the words or actionsG A R C I A V

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spelled out in the underly ing script. 17 U.S.C. § 103(b); see also U.S. A uto Parts Network, Inc.
, 692 F .3d at 1 0 16. Garcia
may a ssert a copy

rig ht interest only in the portion o f “I nnocence of Muslims” that represents her individual creativity
, b u t even if her contribution is relatively minor, it isn’t de minimis. See F

eist
, 499 U.S. at 359, 363. W e need not and do not decide whether every actor h as a c opy rig ht in his performance within a movie. I t suffic e s f o r now to hold that, while the matter is fairly debatable, Garcia is like l y to prevail based on the record and arg uments before us.

N o t hing we say today precludes the district court f r o m concluding that Garcia doesn’t have a c o py rig htable interest,

or that Goog le prevails on a n y o f its defenses. W e note, for

ex a mple, that after we f

irst issued o ur opinion, the U n i t ed States Copy

rig ht Office sent G arcia a letter deny ing her

r e q uest to reg ister a c opy rig ht in her p erformance. B eca u s e this is n ot an appeal of the denial o f r eg istration, the Copy rig ht Office’s refusal to reg ister d o esn’t “ preclude[ ] a determination” that Garcia’s p erform a n c e “is indeed
copy rig htable.” OddzOn Prods., Inc. v. Oman
, 924 F .2d 346, 347 (D.C. Cir. 1991). B u t the district court may still defer to the Copy

r ig h t Office’s reasoning
, to t he ex tent it is persuasive. See Inhale, Inc. v

. Starbuzz Tobacco, Inc

. , 739 F .3d 446, 448–49 (9th Cir. 2014).

After w e f

i rst published our opinion, amici raised other issues, such as the applicability of t h e f a ir u se d octrine, see 17 U.S.C. § 1 0 7, and section 230 of the Communications Decency A ct, see 47 U.S.C. § 230. B ecause these d e f e n ses

were not r aised by the p arties, we do not address them. The district court is free to c o n sider them if Goog le properly raises them.G A R C I A V

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As the above discussion makes clear, any analy sis of the rig hts th a t m i g ht a ttach to the numerous creative contributions that make up a film can quick l y become entang led in a

n impenetrable thicket o f copy rig ht. B u t it rarely comes to that because copy rig ht interests in the v a s t majority of films are covered by c ontract, the work f o r h i r e doctrine or implied licenses. See F

. J ay Doug herty
, Not a Spike Lee J

oint? Issues in the Authorship of Motion Pictures Under U .S. Copyright Law
, 49 UCL A L

. Rev. 225, 238, 317–18, 327–33 (2001). Here, Goog le arg ues that Garcia’s performance w as a work made for hire or, alternatively
, that she g ranted Youssef an implied l i c ense to use her performance in “I

nnocence of Muslims.”

2. Work F or Hire

Under the work f

or hire doctrine, t h e r i g hts to Garcia’s performance vested in Youssef if Garcia was Youssef’s employ e e and acted in her e mploy ment capac ity or was an independent contractor who transferred her inte r ests in writing

. S

ee 17 U.S.C. §§ 1 01, 2 01(b); see also Cmty. for Creative Non-Violence v. Reid , 490 U.S. 730, 751 (1989).

The “term ‘employ ee’” r efers “to a hi r ed party in a conventional employ

ment r elations h ip,” and the q uestion o f employ ment is analy

z ed under traditional p r i nciples o f
ag ency

. Reid , 490 U.S. at 743, 751. G arcia’s case is a g ood

ex ample of why it is difficult to categ oriz e an actor, particularly one in a small role, as a conventional employ ee. Youssef hired Garcia for a specific task, she only worked for three day s and she claims she r eceived no health o r other traditional employ

ment b e n e fits. See id. at 751–52. A s we’ve recog niz ed, this di f f i c u lty is why 17 U.S.C. § 101 “specifica l ly addresses the movie

. . . industr[ y ]
, a ffordingG A R C I A V

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moviemakers a simple, straig h tforward way o f obtaining ownership of the copy

r ig ht in a c r ea t i ve contribution— namely
, a w ritten ag r eement.” E f f e c t s Assocs.
, 908 F .2d at 558. Youssef didn’t o btain a written ag r eement, 5 and Garcia

s imply doesn’t qualify as a traditional employ ee on t h i s record.

The diss e n t believes Garcia was an employ ee p rimarily because “Youssef controll[ ed] both the manner and means o f making the film, including the scenes featuring Garcia” a nd Youssef “was eng a g e d in the business of film ma k ing a t the time.” Dissent 34. B ut there’s no evidence in the record that Youssef directed the film or that he controlled the manner in which a ny part of the film—much less Garcia’s scene—was shot. I n fact, Youssef h as claimed o nly th a t he wrote the screenplay

.

There’s nothing in the record to sug g est that Youssef was in the “reg

ular business” of making films. Reid
, 4 90 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 h ad
any union contracts, relationshi p s w i th prop houses or other film suppliers, lease s o f studio space or distribution
ag reements. T he dissent would hold that Youssef was in the “reg u lar business ” of filmmaking simply because h e made “I nnocence of Muslims.” B ut if shooting a si n gl e amateur

5 Neith er p arty claim s th at G arcia s ig n ed a w o rk f o r h ire ag reem en t. In th e d istrict co u rt, Go o g le p ro d u ced an ag reem en t, p u rp o rted ly sig n ed b y Garcia, th at t

ran sf erred all o f h er rig h ts i n h er p erf o rm an ce to th e f

i l m ’ s p ro d u cers. G arcia resp o n d ed b y s u b m ittin g t h e d eclaratio n of a h an d w ritin g ex pert o p i n in g th at Garcia’ s sig n atu re h ad b een f

o rg ed

. T h e d istrict co u rt d id n ’ t ad d ress th e ag reem en t o r its au th en t icity

.G A R C I A V

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film amounts to the r eg ular business of filmmaking
, every schmuck with a videocamera becomes a movie mog ul.

3. Im plied License

A non-ex clusive license may be i m p lied from conduct a

nd arises where a plaintiff “ c r e a t e [s] a work at defendant’s request and hand[ s] it over, intending that defendant copy a nd distribute it.” Effects Assocs.
, 908 F .2d at 558. We’ve f ound

an implied license where the plaintiff’s c ontribution to a film

or other work would otherwise b e w orthless 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 f

ilm, w as paid for her performance a nd had every reason to believe Youssef would e ventually release the film. W ithout an implied license, the p e r f o rmance for which she was paid would be unusable. Therefore, we ag r ee with Goog le that Garcia g ranted Youssef an implied license.

Any such license must be construed broadly

. I f the scope of an implied license w as ex ceeded merely bec a u s e a film didn’t meet the ex ante ex pectati o n o f an actor, that license would be virtually meaning less. See Foad Consulting Grp., Inc. v. Azzalino
, 270 F .3d 8 21, 837–38 (9th Cir. 2 001) (Koz inski, J
., concurring ). A narrow, easily ex c eeded license

c o u l d a llow an actor to f

o rce the film’s author to re-edit the film—in violation o f the author’s ex clusive rig ht to p repare derivative works. See 17 U.S.C. § 106(2). Or the actor could prevent the film’s author from ex ercising his ex c lusive rig ht
to show the work to the p ublic. See 17 U.S.C. § 106 (4). I n other words, unless these ty pes o f implied lice n s e s a reG A R C I A V

. G O O G L E , I

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. 15

construed very broadly
, actors could leverag e their individual contributions into de facto authorial control over the film. 6

Nevertheless, even a b r oad i m p lied license isn’t unlimited. See Oddo
, 743 F .2d at 634. Garcia was told she’d be acting in an advent ure f ilm set in ancient Arabia. W e re she n ow to c omplain that the film h as a different title, that its historical d epictions are inaccurate, t h a t h er scene is poorly edited or that the quality of the f ilm isn’t as she’d imag ined, she w ouldn’t have a v iable claim that her implied license h ad been ex ceeded. B ut the license G arcia g rante d Y o u s sef wasn’t so b road as to cover the use of her performance in a ny project. Here, the problem isn’t that “ I n nocence of Muslims” is not an Ar a b i a n a dventure movie: I t’s that the film isn’t intended to entertain at all. The film differs so radically from
any thing Garcia could have imag ined when she was cast that it can’t possibly be authoriz ed by any im p lied license she
g ranted Youssef.

A clear sig n that Yous s e f ex ceeded the bounds o f any license is that he lied to G arcia in order to secure her participation, and she ag reed to p e rf o r m in reliance on that l i e

. Youssef’s fraud alone is likely enoug h to v oi d a n y ag reement he had with Garcia. See 26 Samuel W illiston & Richard A. L ord, A Treatise on the Law of Contracts § 69:4 (4th ed. 2003). B ut even if it’s not, it’s clear evidence that his inclusion of her p erformance in “I nnocence of Mus l i m s ”

6 Co n stru i n g su ch im

p lied licen ses n arro w ly

w o u ld also u n d erm in e ou r j o in t au th o rsh i p j u risp ru d en ce. Mo st acto rs d o n ’ t q u alif y as j o in t au th o rs. S ee Aa lmu h a mmed , 2 0 2 F.3 d at 1 2 3 2

– 33 . Yet, if an y acto r w h o d o esn ’ t lik e th e f in al v ersio n o f a m o v ie co u ld k eep it f ro m b e i n g released
, h e’ d h av e m o re co n tro l o v er th e f ilm t h an a j o in t au th o r. S

ee 1 Ni mmer o n Co p yrig h t § 6 .1 0 [A ][1 ][a], at 6

– 3 6 (“ [A ] j o i n t ow n er m ay ex p l o it th e w ork h im self , w ith o u t o b tain in g th e co n sen t o f

th e o th er j oin t o w

n ers.”).G A R C I A V

. G O O G L E , I

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. 16

ex c e eded the scope of the implied license and was, therefore, an unauthoriz ed, infring ing use.

The situation in which a filmmaker uses a performance in

a way that e x ceeds the bounds o f the broad implied li cense g ranted by an actor will be ex traordinarily rare. B ut t h i s i s such a case. B e cause it is, Garcia has demonstrated that she’s likely to succeed on the merits of her claim. W inter
, 555 U.S. at 20.

B. Irreparable Harm

Garcia arg ues that she suffers irreparable harm b oth because of the o ng oing i n fring e ment of her copy r ig ht a nd because that infring ement subjects her to continuing
, credible de at h t h reats. I rreparable harm isn’t presumed in copy rig ht

cases. Perfect 10, I

nc. v. Google, Inc.
, 653 F .3d 976, 980–81 (9th Cir. 2011). Therefore, Garcia must show that the d amag e to her reputation a nd threats ag ainst her life constitute irreparable harm.

The d istrict court found that Garcia failed to m ake this required showing
, primarily because she didn’t b ring suit until several months after “I nnocence of Musli m s” was uploaded to YouTube. I t’s true that a “long d e l a y before seeking a preliminary injunction i m p l ies a lack o f urg ency and irreparable harm.” Oakland T r i b une, Inc. v. Chronicle Publ’g Co.
, 762 F .2d 1374, 1377 (9th Cir. 1 985). B ut this is

so because a preliminary injunction i s b a s ed “‘upon the theory that there is an urg ent need for speedy action’” and b y “‘sle ep i ng on its rig hts a plaintiff demonstrates [ a] lack of’”
urgency

. Lydo Enters., Inc. v. City of Las Vegas
, 745 F .2d 1211, 1213 (9th Cir. 1984) (quoting G i l lette Co. v

. E d Pinaud, I

nc. , 178 F

. Supp. 618
, 622 (S.D.N.Y. 1959)).G A R C I A V

. G O O G L E , I

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. 17

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

as the film r eceived worldwide attention and she b eg an receiving death threats—in other words, as soon as there was

a “need for speedy action.” Id. B ecause the need f o r immediate action didn’t arise until she w as threatened, Garcia wasn’t dilatory

in bring ing the lawsuit.

The harm Garcia complains o f 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 ag ainst her a re ong oing and ser i ous, she has already been forced to take sig nifi c a n t security precautions when traveling a nd she moved to a new home and relocated her business as a safety

measure. Althoug h past injuries aren’t sufficient to establish irreparable harm for purposes of an injunction, id. at 103, Garcia has amply demonstrated that, a b sent an injunction, she’ll continue to suffer c oncrete harms—whether in the form of ong oing security requirements or actu a l harm to her
person.

B e y ond e stablishing that she face s a n imminent harm, Garcia must show a “sufficient c ausal con n e c t ion” b etween that harm and the conduct she seeks to enjoin such that the injunction would e ff

ec t ively curb the risk of injury

. Perfect 10
, 653 F .3d at 981–82. Despite her understandable focus on the threats a ga i n s t her life, G arcia has broug h t a copy rig ht action. Therefore, she nee d s t o show that the h arm she al leg es is causally related to the infring ement of her
copy rig ht.

She’s made such a showing

. Youssef’s unauthoriz ed inclusion of her p erformance i n “ I nnocence of Muslims” undisputedly led to the threats ag a inst Garcia. Goog le arg ues that any harm arises solely out o f Garcia’s participation inG A R C I A V

. G O O G L E , I

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. 18

“I nnocence of Muslims” a n d not out of YouTube’s continued hosting of the film. B ut Garcia has shown that removing the film from YouTube will help disassociate her from the film’s anti-I slamic messag e and tha t such disassociation w ill keep her from suff

ering future threats and phy sical harm. Althoug h Goog le a ssert s t hat the film is so widespread that removing it from YouTube will have n o effect, it has provided no evidence to support this point. 7 Taking down the film f rom YouTube will remove it from a prominent online platform—the platform on which it was first display ed—and will curb the harms of which Garcia complains.

I t is n ot irrelevant that the ha r m Garcia complains of is death or serious bodily harm, which the dissent fails to mention. Death is an “irremediable and unfathomable” harm, Ford v. W

a inwright
, 477 U.S. 3 99, 411 (1986), and bodily injury i s n o t far behind. To the ex tent 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 P ublic Interest

Youssef lied to G arcia about the project in which she was participating

. Her performance wa s u sed in a w ay that she

7 Co n t rary to th e dissen t’ s su g g e s t io n , Garcia’ s declaratio n d o esn ’ t estab lish th at th e f

ilm h as b een “ w id ely d i s c us sed an d d i ssem i n ated .” Dissen t 36

. It states o n ly th at Garcia reach ed o u t to th e m ed i a t o l e t th e

w o rld k n ow t h at sh e “ d [id ] n o t co n d o n e th e f ilm .” W e rej ect th e d i ssen t’ s

u n ch aritab le arg u m en t t

h at Garcia sh o u ld b e p en alized f o r att em ptin g to p ro tect h er lif

e an d r ep u t atio n by distan cin g h erself f ro m “ In n o cen ce of Mu slim s.” W e also rej ect Go og le’ s p rep o stero u s arg u m en t t h at an y h arm to Garcia is traceab le to h er f ilin g o f th is law su it. A n y p u b l icity g en erated b y G arcia’ s l aw su it is a n ecessary pro d u ct o f h er attem p t to p ro tect h erself

an d h er leg al rig h ts af

ter Go o g le ref

u sed to d o so

.G A R C I A V

. G O O G L E , I

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. 19

found abhorrent and her appearance in the film subjected her
t o threats of phy sical harm a n d even death. Despite the s e harms, a nd despite Garcia’s viable copy rig ht claim, G oo g le refused to remove the film f rom YouTube. I t’s h ard to see how G oog le can defend its refusal on equitable g rounds and, indeed, it doesn’t really try

. I nstead, it arg ues t h a t an injunction would be inequitable because of the overwhelming public interest in the cont i n u e d hosting of “I nnocence o f Muslims” on YouTube.

The problem with Goog le’s position is that it rests entirely on the assertion that Garcia’s proposed injunction is

an unconstitutional p rior restraint o f s peech. B ut the F irst Amendment do e sn’t protect copy rig h t infring ement. Cf. Eldred v. Ashcroft
, 537 U.S. 186, 2 1 9–220 (2003). “F irst Amendment protections are ‘embodied in the C o p y r i g h t Act’s d i s t i n c t i o n b e t w e e n c o p y r i g h t a b l e e x p r e s s i o n a n d
uncopy r ig h table facts and ideas,’ and in t h e ‘ latitude for scholarship an d comment’ safeg uarded b y the fair use d efense.” Golan v. Holder
, 132 S. Ct. 8 7 3, 890 (2012) ( q uoting Harper & Row Publishers, Inc. v

. Nation Enters.
, 471 U .S. 539, 560 (1985)). G oogl e h a s n ’t r aised fair use a s

a defense in this appeal, see pag e 11 supra , so we do not consider it in determining its likelihood of success. This does not, of course, preclude Goog le from raising the point in the district court, provided it properly p reserved the defense in its pleading s.

B e cause Garcia has demonstrated a likelihood of success

on her claim tha t “ I n n ocence of Muslims” infring es her
copy rig ht, Goog le’s arg

ument fails. The balance of equities therefore clearly favors G arcia a nd, to the ex tent the public interest is implicated at all, it, too, tips in Garcia’s direction.G A R C I A V

. G O O G L E , I

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. 20

* * *

This is a troubling case. Garcia was duped into providing

an artistic performance that was used in a way she n ever could have foreseen. Her unwitting and unwilling inclusion in “I nnocence of Muslims” led to serious threats ag a inst her life. I t’s disappointing
, thoug h p erhaps not s u r p rising
, that Garcia needed to sue in order to protect h erself and h er rig hts.

B u t she has sued and, more than that, she’s shown that she is likely to succeed on her copy r ig ht claim, that she faces irreparable h arm absent an injunction and that the balance o f equities and the p ublic interest f a v o r her position. The district court abused its discretion in finding otherwise.

REVERSED AND REMANDED 8

N.R. SMI TH, Circuit J udg e , dissenting

B e cause the facts and law d o not “clearly favor” issuing

a preliminary injunction to Garcia, the d i s t r i c t court d id not abuse its discretion in deny ing Ga r c i a ’ s requested r elief. A s a result, I must dissent.

8 Co n cu rren t w ith th is o pin i o n , w e h av e issu ed an o rd er d irectin g Go o g le
to tak e d o w

n al l c o p i e s o f “ In n o cen ce o f Mu slim s” f ro m Yo u T u

b e an d

an y o th er p latf

o rm s w ith in its co n t

ro l an d to tak e all reaso n ab le step s to p rev en t f u rth er u p lo ad s. T h is tem

p o rary in j u n ctio n sh all rem ain in p l ace

u n til th e d istrict co u rt is ab l e to en ter a p relim in ary in j u n ctio n co n sisten t

w ith o u r o p in io n

.G A R C I A V

. G O O G L E , I

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. 21

I. Standard of

Review

The majority opinion omits a p ply ing the requisite standard of review that is es p e cially pertinent to Garcia’s requested relief. Mandatory p reliminary injunctions, simi l ar to the one issued today
, are “particularly disfavored.” S tanley v. Univ. of S. Cal. , 13 F .3d 1313, 1320 (9th Cir. 1994).

Different from the usual “prohibitory injunction,” a “mandatory injunction g oes well bey ond simply maintaining the status quo pendente lit e

. ” Id. (internal quotation marks omitted). As an e x ample, requiring a university to reappoint

a faculty member whose contract h ad e x pired constitutes a mandatory injunct i o n

. I d

. ; s e e a l

s o , e. g

. , M

arlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co.
, 5 71 F .3d 873, 879 ( 9th Cir. 2009) (“[ T ] he affirmative step of recalling [ a] pro d u ct ” is also a mandatory injunction.). I n the instant dispute, G a r cia requests relief throug h a mandatory injunction. Rather than asking to main t a i n t he status quo pending li t i g ation, Garcia demands Goog le immediately

remove a film from YouTube. Therefore, her request must be “subject to a hig h er deg ree of scrutiny because such relief is particularly disfavored under the law of this circuit.” Stanley
, 1 3 F. 3 d at 1320. This hig her deg ree of scrutiny requir e s courts to b e “ ex t r e mely cautious” and “deny such relief unless the facts and law clearly favor the moving party .” Id.
at 1319–20 (internal quotation marks omitted, emp h a sis added). I n d e e d
, mandatory injunctions “are not issued in doubtful cases.” Anderson v. U n i t e d S tates , 612 F .2d 1112, 1115 (9th Cir. 1979) (internal quotation marks omitted).

This standard’s importance mu s t be appreciated in

c onjunction with the g eneral standard with which this court reviews a d i strict court’s decision to deny preliminaryG A R C I A V

. G O O G L E , I

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. 22

injunctive relief: “abuse o f discretion.” Alliance for the W ild Rockies v. Cottrell
, 632 F .3d 1127, 1131 (9th Cir. 2011). As

a result, the majority may only reverse if it were illog ical o r implausible, U

nited S tate s v

. Hinkson
, 585 F .3d 1247, 1263–64 ( 9th Cir. 2 0 09), f or the district court to conclude that
t h e l a w and f

acts did n ot clearly favor Garcia, Stanley
, 13 F .3d at 1320. 1

Given this standard, the majority errs in requiring Goog le
to p ull the f

ilm from YouTube—at this stag e of the litig ation. The district court did n ot a buse its d iscretion i n co n c l uding that the law and facts d id not clearly fav o r G a r cia. I nstead, the majority make s n e w l aw in this circuit in order to reach the result it seeks. We have neve r held that a n actress’s performance could be copy rig htable. I n deed, “[ t] here is little

case law or statutory autho r i t y as to the position o f performers as authors o f a n a udi o visual work under U.S. law.” F . J ay

Doug herty
, Not a Spike Lee Joint? Issues in the Authorship of Motion Pictures under U.S. C opyright Law
, 49 UCL A L . Rev. 225, 300 (2001).

II. Application of

the Winter

F actors

“A p laintiff s e e king 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 th is i s th e relev an t stan d ard of rev iew
, t h e d istrict co u rt ’s
ap p licatio n o f it is h a r d l y “ eq u iv o catio n .” S ee m aj

. o p. at 6 n .2

. Fu rth erm o re, th e am en d ed p o rtio n s o f th e m aj o rity o p in io n o n ly co n f irm th at th e l aw an d f

acts d o n o t clearly f

av o r Garcia: “ No th in g w e s ay to d ay p reclu d es t

h e d istrict co u rt f

ro m co n cl u d i ng th at Garcia d o esn ’ t h av e a

c o p y rig h tab le in terest, o r t

h at Go o g le p rev ails o n an y o f its d ef en s e s

. ” Maj

. o p

. at 1 1. W h ere th e law an d f acts m u st clearly f

av o r Garcia in o rd er f o r h er to p rev ail, th e m aj o rity ’ s eq u iv o catio n cem en ts its erro r.G A R C I A V

. G O O G L E , I

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. 23

relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” W inter v. Na t u r a l Res. Def. Council, Inc. , 555 U.S. 7, 20 (2008).

A. G arci a ’ s Likely Success o n the Merits of Her Copyright Claim

The di s t rict court concluded that it was unclear whether Garcia had a c opy

rig h t interest in h er a cting per f ormance. The district court’s discretiona r y c onclusion hardly appears illog ical or implausible.

1. Copyright Interest

A protected interest u nder the Copy rig ht Act must be an “orig inal work[ ] of authorship fix ed in any tang ible medium of ex pression.

. . .” 1 7 U.S.C. § 10 2 (a). Garcia does not clearly have a copy

rig h t interest in her acting perf o r mance, because (1) her acting performance is not a wor k
, (2) she is
not an author, and (3) her acting performance is too personal to be fix ed. 2

a. Work

To be p rotected, Garcia’s acting pe r formance must be a “work.” Id

. Cong ress has listed e x am p les o f copy rig htable works, like architectural works
, m otion pictures, literary works, and pict o r i a l or sculptural works. Id

. The nature o f these w orks i s sig nificantly different from a n actress’s

2 T h e m aj o rity relies so lely on a sh o w i n g o f o rig in ality to co n clu d e Garcia h as a co p y

rig h tab le i n terest in h er actin g p erf o rm an ce, m aj

. o p

. at 8 (citin g Feist Pu b l ’ n s , I n c

. v. Ru ra l Tel. S

erv. Co

. , 4 9 9 U.S. 34 0
, 3 4 5 (1 9 9 1)), b u t th e Co n stitu

tio n an d th e Co p y

rig h t A ct req u i re m

u ch m ore.G A R C I A V

. G O O G L E , I

N C

. 24

individual performance in a f i l m , c asting 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. 2 002) (“The doctrine of noscitur a sociis counsels that words should be understood by

the company

they keep.”).

Section 1 0 1 of the Act is also instructive, because it differentiates a w ork from the performance o f i t

. I t defines “perform a ‘work’” to mean “ to r ecite, render, play
, dance o r act it .” 17 U.S.C. § 101 ( e m p h a s is added). Given this provision, it is difficult to understand h ow Cong ress intended
to ex tend copy

rig ht protection to this acting p e r formance. W h ile Cong ress disting uishes the performance from the work its elf, the majority blurs this line. I ts position contemplates something very different fr om amalg amating independently
copy rig htable interests into a derivative w o r k. S ee id. at § 103(b).

Consistent with section 101, section 102(b) outlines that which is not g iven copy

r ig ht protection. I t states: “I n n o case does copy rig ht protection for an orig inal work of authorship

ex tend to any idea, p rocedure, process, s y s t e m, method o f operation, concept, principle, or discovery
, reg ardless of the form in which it is described, ex p lained, illustrated, o r embodied in such work.” I d. at § 102(b). An acting performance r e s embles the “procedure” or “process” b y which “an orig inal w o r k” is performed. Id. Therefore, “[ i] n

no c a se does copy

rig ht p rotection” ex tend to an acting performance, “reg ardless of the form in which it is d escribed, illustrated, or embodied in” the orig inal work. Id.

I n sum, a motion picture is a work. Id. at § 102(a). A
seg ment independently produced a nd then incorporated into

a motion picture is also a work. See, e .g. , Effects Assocs., Inc.G A R C I A V

. G O O G L E , I

N C

. 25

v. Cohen
, 908 F .2d 5 5 5
, 5 56 ( 9th Cir. 1990)

. However, the Copy rig ht Act does not c learly place a n acting performan ce within its sphere of copy

rig htable works. As a r esult, the law and facts do not c learly favor finding a c opy rig htable interest in Garcia’s acting

performance.

b. Authorship

L ike the work requirement, the Copy rig ht Act also premises copy

rig ht protection on autho r ship. 17 U .S.C. § 1 0 2 (a ). Authorship is also a constitutional copy rig ht requirement. See U.S. Const. Art. I , § 8, cl. 8; Burrow-Giles Lithographic Co. v. Sarony
, 111 U.S. 5 3, 5 6 (18 8 4). Aalmuhammed v. Lee is the most relevant case in this circuit

on the q uestion of a

uthorship. 2 02 F .3d 1227 (9th Cir. 2000). Thoug h the Aalmuhammed court discussed authorship in the
contex t of joint authors of a film ( w h i c h Garcia does not claim to be), it articulated g eneral principles of authorship that assist in analy

z ing Garcia’s inter e s t in her acting performance. 3

The Aalmuhammed court ex plained that “[ t] he word [ author] is traditionally u s e d to mean the o rig inator or the
person who c au s e s something to come into being .” I d. at 1232. I n other words, the author is the “person with creative control.” Id. Thus, “an a u thor ‘ superintends’ t h e w o r k b y

ex e r cising control.” Id. at 1 234 (quoting Burrow-Giles
,

3 Fu rth erm ore, Garcia’ s in terest in h er actin g p erf o rm an ce m ay

b est b e

an aly zed as a j o in t w o rk w i th Yo u ssef
, co n sid erin g sh e relied on Yo u ssef ’ s scrip t, eq u ip m en t, an d d i rectio n

. S ee 1 7 U.S.C. § 1 0 1 (“ A ‘ j o i n t

w o r k ’ i s a w o rk p rep ared b y tw o o r m o re au th o rs w ith th e in t en ti o n t h a t th eir co n t rib u tio n s b e m erg ed in to in sep arab l e o r in terd ep en d en t p arts of

a u n itary w h o le.”).G A R C I A V

. G O O G L E , I

N C

. 26

111 U.S. a t 61) (alteration omitted). Another framing by the
court defined an auth o r a s “ ‘ h e to whom any thing owes its orig in.’” Id. at 1233 (quoting Burrow-Giles
, 111 U.S. at 5 8). An author mig ht also be “‘the inventive or master mind’ w ho ‘creates, or g ives effect to t h e idea.’” Id. a t 1234 (quoting Burrow-Giles
, 111 U.S. at 61). I ndeed, authorship “requires

more than a minimal creative or o r ig inal contri b u t i on to the work.” Id. at 1233 (citing Burrow-Giles
, 111 U.S. a t 58) (emphasis added). 4 T hese prin ciples comport with the “g eneral r

ule,” that “the author is the party wh o a ct ually
creates the work, that is, t h e person who translates an idea into a fix ed, tang ible ex pression entitled to copy rig ht protection.” Co m mty. for Creative Non-Violence v. Reid
, 490 U.S. 730, 737 (1989).

I n concluding that A almuhammed 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 n o t the
person ‘ who

. . . actually f ormed the picture by putting the
persons in position, a

n d arrang ing the p la c e , ” ( 3 ) could not “benefit” the work “in the slig h test unless [ the director] chose
to accept [ his recommendations]
, ” and (4) made “valuable contributions to the movie,” b u t t hat alone was “not enoug h for co-authorship of a joint work.” Aalmuhammed
, 202 F .3d at 1235.

Garcia’s contribution i s less sig nificant than Aa l m u hammed’s. She conceded in her complaint a nd affidavit that she had n o creative control over the script or her performance. Youssef provided the script, the e quipment, a nd the direction. As a result, Garcia was n ot the orig inator o f

4 T h e m aj o rity op in io n can n o t co ex ist w ith th is statem en t. S

ee m aj . o p

. at 8

.G A R C I A V

. G O O G L E , I

N C

. 27

ideas o r concepts. She simply acted out others’ ideas or script. Her brief appearance in the film
, ev e n if a valuable contribution to the film, does not make her a n author. I ndeed, i t is difficult to understand how she can be considere d a n “inventive or master mind” of her performance under these facts.

The majority d ismisses Aalmuhammed as inapposite, instead bolstering its c o nclusion with reference to acting manuals and treatises. See maj. op. at 8–9. I n so doing
, it g oes too far in attempting to disting uish Aalmuhammed

. F irst, the Aalmuhammed court articulated g ene ral principles o f autho rs h ip that it p u lled from the Supreme Court c ase, Burrow-G i les Lithographic Co. v. Sarony
, 111 U .S. 53 (1884). See, e .g. , Aalmuhammed
, 202 F .3d at 1233 (“BurrowGiles is still g ood law.

. . .”). Burrow-Giles h a s nothing to do with joint works; instead, the Court interpreted “author” a s 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. a t 9, is taken o ut o f
contex t. The very nex t line in that o p i n i o n makes clear that
copy rig ht protection is premised o n authorship, whether the work is joint or otherwise:

W e hold that authorship is required under the statutory definition o f a joint work, and that authorship is not t he same thing as making a valuable and copy

rig htable contribution. W e recog niz e th a t a contributor of an ex pression
may be deeme d t o be the “author” of that

ex p ression for purposes of determining whether it is independently copy rig htable.G A R C I A V

. G O O G L E , I

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. 28

Aalmuhammed
, 202 F .3d at 1232. F inally , Section 102(a) of the Copy rig ht Act and A rticle I
, S ection 8, Clause 8 o f the U.S. Constitution b o th premise copy rig ht protection on

au t horship. Therefore, not only does the majority decline to

a p p ly the most relevant precedent in this circuit on t h e question before it, it also r eads the authorship requirement out of the Copy

rig ht Act and the Constitution. 5

Even the commentators ag r e e that Aalmuhammed not

o nly applies to Garcia’s c laim, but also forecloses h e r realiz a tion of a copy

rig h table inte r e s t in her acting performance. See, e .g. , Doug herty
, Not a Spike Lee Joint?
, 49 UCL A L

. Rev. at 306 (“Under the j u dicially enhanced joint work requ i r ements,” an a ctress’s performance w ould be “phy sically inseparable from other cinematic contributions.” ( c i t i n g A a l m u h a m m e d
, 2 0 2 F. 3 d a t 1 2 3 2 )) ; L e e, Entertainment and Intellectual Prope r t y Law § 12:7 (2013) (“Under [ Aalmuhammed

]
, . . . individu a l contributors will rarely qualify

as joint authors”).

The majority lauds an a ctress’s creative role i n a film, maj. op. at 8, but the practical impact o f its decision must not be ig nored. Garcia’s role in the film is m i n i m al. Y et the majority con cludes that she somehow created a work Co n gr ess intended to p rotect under the Copy rig ht Act. Considering the number of contributors who inject the same

o r a gr eater amount o f creativity into a film, the majority ’s omission o f any inquiry into a u t h o r ship indeed creates “an

5 T h e m aj o rity ’ s so le relian ce on Feist Pu blica tio n s to co n clu d e th at an actin g p erf

o rm an ce is co py

rig h tab le, m aj

. op

. a t 8

– 9
, g iv es in su f f icien t

w eig h t to t

h e co n s titu tio n al an d statu to ry au th o rsh ip req u irem en t. In Feist Pu b lica tio n s , th e sp ecif

ic qu estio n w as n ot o f au t

h o rsh ip b u t o f o rig in ality

. S ee 4 9 9 U.S. at 3 4 7

.G A R C I A V

. G O O G L E , I

N C

. 29

impenetrable thicket of c opy rig ht.” Maj. op. at 12. Meanwhile, thoug h Aalmuhammed ’s interpretation of the Copy rig ht Act has been debated in academic circles, “it adopts a standard that promotes clarity in the motion picture industry .” L ee, Entertainment a nd Intellectual Property Law § 12:7.

B e cause Garcia does no t q ualify as an a uthor under Aalmuhammed
, the law and facts do not clearly favor protecting her acting

performance under the Copy rig ht Act.

c. F ixation

L astly
, the subject matter protected by the Copy rig ht A ct must a lso be “fix ed in [ a] tang ible m e dium o f

ex p ression.

. . .” 17 U.S.C. § 102(a). Copy rig ht pr e e m p tion cases are instructive on the question of fix ation.

F or preemption purposes, the courts g enerally ag ree that “the scope of the subject matter of copy ri gh t l a w is broader than the protection it a f

fords.” Montz v

. P i l

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

see U.S. e x rel Berge v. Bd. o

f Trs. of Univ. of

Ala.
, 104 F .3d 1453, 1463 (4th Cir. 1997). I n other w ords, the subject matter underly ing a state law c laim p reempted b y the Copy rig ht A ct may n e vertheless not be protecte d b y t h e Copy rig ht A ct. B y implication, subject matter supporting a non-preempted state law claim is definitely not protected by the Copy rig ht Act. A number of cases from this circuit discuss subject matter a kinG A R C I A V

. G O O G L E , I

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. 30

to an a cting performance and prove useful on the q uestion o f fix ation. 6

I n Midler v. Ford Motor Co.
, B ette Midler sued F ord for misappropriating her voi c e in a commercial. 849 F .2d 460, 462 (9th Cir. 1988). Alth o u gh Ford properly had a license from the song ’s copy

rig h t holder, it paid someone to imitate Midler in sing ing the song Midler made famous. Id. Althoug h ultimately holding for F ord, the cour t r ejected its arg ument that Midler’s claim was preempted by c o p y rig ht law. “A voice is not copy

rig htable. The sounds are not ‘fix ed.’ W hat is p u t forward

. . . here is more personal than any work o f authorship.” Id .; see a lso Sinatra v. Goodyear Tire & R u bber Co.
, 435 F .2d 711 (9th Cir. 1970).

I n Laws v. Sony Music Enter tainment
, we disting u ished Midler from its facts in holding that the plaintiff’s claim was preempted by the Copy

r ig ht Act, b ecause “Sony was not imitating ‘Very Special’ a s [ the plaintiff] mig ht have sung it. Rather, it used a portion of ‘Very Special’ as sung by [ the plaintiff] .” 448 F .3d 1134, 1141 (9th Cir. 2006). W here Sony had a license to the entire song , its u se of a portion of it under that license could not be attacked outside the copy rig h t laws. Id.

6 T h e m aj o rity o p in io n d ism isses t h e l i n e o f co p y rig h t p reem

p tio n p reced en t. Maj

. o p

. at 9 (“ Mid ler i sn ’ t a co p y

rig h t case at all—it’ s a rig h t

o f p u blicity case th at h a p p en s to d iscu ss co py rig h t in th e co n tex t of
p reem p tio n .”). Ho w ev er, th ese cases f eatu re th e sam e j u dg es i n terp retin g th e sam e Co p y

rig h t A ct, w

h eth e r t h e q u estio n is o n e o f co p y rig h t in f rin g em en t o r co p y

rig h t p reem

p t io n

. T h u s, t

h e m aj o rity ’ s d i stin ctio n is

w ith o u t dif

f eren ce; it f

ails to o v erco m e th e f

act th at su

b j ect m a t ter

u n d erly in g a n on -p reemp ted state l aw claim
, lik e th at in Mid ler
, is clea rly

w ith o u t th e Co p y

rig h t A ct’ s p ro tectio n

. S

ee Mo n tz , 6 4 9 F.3 d at 9 7 9

.G A R C I A V

. G O O G L E , I

N C

. 31

Jules Jordan Vide o , Inc. v. 144942 Canada, Inc.
, 617 F .3d 1146 (9th Cir. 2010), is like Laws

. Defendants i n Jules Jordan copied (without authoriz ation) pornog raphic DVDs produced and c opy rig hted by J ules J ordan Video, then reproduced, counterfeite d
, and sold their copies to third parties. Id. at 1153. B ecause J ules J o rdan held a copy rig ht in
t he o rig inal D VDs, this court found that the Copy r i g h t A ct preemp t e d its state law rig ht of publicity c laim ag ainst Defendants.

The subject matter in Jules Jordan and Laws concerned entire copy

rig hted works—video and mus ic r ecording s. Differently
, Midler involved the imitation of a sing er’s voice. Combined, these cases show that, just as the singing of a song is not copy

rig htable, while t h e entire song recording is
copy rig htable, the acting in a movie is no t copy rig htable, while the movie recording is copy r ig htable. 7

A musical recording involves many moving par t s, including the tune, ly

rics, instrumental musicians, vo c al ists, and a production team that edits and prepares the f inal song

. W h ile the ultimate product is copy ri gh t a ble, Ninth Circuit precedent dictates that a vocalist’s sing ing of the song is not
copy rig htable. See Midler
, 849 F .2d at 462. An a c t ing
p erformance depends upon similar moving parts: a script, multiple actors’ a

nd a c tresses’ performances, g uidance from directors a

nd staff, a n d e diting and other production preparation. The movie is ultima t ely copy rig htable. See

7 T h is is n ot th e case w

h ere an in d ep en d en tly au th o red clip i s u sed in a f ilm
, as in Effects Asso cs. , 9 0 8 F

. 2 d a t 5 5 7

– 58

. Rath er, th is an alo g y

assu m es f acts sim ilar to th e in stan t case: an actress actin g o u t a scrip t sh e d id n o t w rite u n d er th e d i rectio n o f s o m eo n e else w h o p ro v id es all o f th e in stru m en ts, to o ls, an d lead ersh ip

.G A R C I A V

. G O O G L E , I

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. 32

17 U.S. C

. § 1 02(a). B ut one actress’s individual acting performance in the movie, like a v ocalist sing ing a song , “is

more personal than a n y w ork of authorship.” Midler
, 849 F .2d at 462. As a result, it is not fix ed. See id.

J ust as “an actor does far more than speak w o r ds on a pag e,” maj. op. at 8, so too does a v ocalist. I ndeed, o ne mig ht
say that otherwise, “every schmuck” is a vocalist, “ because
every one

. . . knows how to read.” Id. (quoting Sanford Meisner & D ennis L ong well, Sanford Meisner on Acting 178 (1987)) ( quotation marks omitt ed). An actress like Garcia makes a creative contribution to a film much like a v ocalist’s addition to a musical recording

. G a r c i a did not w rite the script; she followed it. Garcia did not add words or thoug hts
to the fi l m

. S h e lent her voice to the words and her body to the scene. Her c reativity came i n t h e form o f facial

ex p ression, b ody movement, and voice. Similarly
, a sing er’s voice is her personal mobiliz ation o f words and musical notes to a fluid sound. I nflection, intonation, pronunciation, a nd pitch are the v o calist’s creative contributions. Yet, this circuit has determined that such, thoug h perhaps creative, is too personal to be fix ed. See Midler
, 849 F .2d at 462.

Under this l i ne of cases, a n actress’s performance in a film is more l i k e t h e personal act of sing ing a song than the complete copy

rig hted works in Laws and Jules Jordan

. As a result, it does not seem copy rig h table. T h us, the law and facts do not clearly support Garcia ’ s c laim that her acting performance is protected under the Copy rig ht Act.G A R C I A V

. G O O G L E , I

N C

. 33

Considering work, authorship, a nd fix ation, Garcia has
not demonstrated how the facts and law clear l y f av o r her claim of a copy

rig h table interest in her acting performance. 8

2. Work f

or Hire Doctrine

Even if the majority w e r e c orrect in finding a copy rig htable interest in Garcia’s acting performance, preliminary injunctive relief would be unwarran t e d

. The district court did not address the application o f the work for hire doctrine. Yet, the law and facts do not clearly show that Garcia was not working

for hire.

“I n the c ase of a w ork made for hire, the e mploy er o r other person f

or whom the work was p repared is considered the author for purposes of this title.

. . .” 17 U.S.C. § 201(b). “A ‘ work made for h ire’ is a work prepared by an employ ee within the scope of his or her employ ment.

. . .” Id. a t § 101. Therefore, “[ i] n determining whether a h ired p a rty is an employ e e under the g eneral common la w of ag e ncy , we consider the hiring party ’s rig ht to c o n t r o l the manner a nd

means by which the product is accomplished.” Reid
, 4 9 0 U.S. at 751.

8 T h e m aj o rity ’ s am en d ed o p in io n also attem p ts to h ed g e its co n clu sio n th at Garcia h as a co p y

rig h t in terest in h er actin g p erf o rm an ce b y av o id in g

co u n ter arg u m en ts it f

ailed to ad d ress, b ecau se th ey w ere n o t raised b y th e p arties. Maj

. o p

. at 1 1
, 1 9

. Yet, th e m aj o rity co ul d co n sid er th ese arg u m en ts su a sp on te “ u

n d e r e x c e p t i on al circu m stan ces, w h ere su b stan tial
p u b lic in terests are i n v o lv ed
, o r w h ere t o n o t d o so w o u ld b e u n d u ly h arsh
to o n e o r b o th o f th e p arties.” Un ited S ta tes v. Ho yt , 8 88 F.2 d 1 2 5 7
, 1 2 5 8 (9 th Cir. 1 9 89 ). T h e m aj ority ’ s f ailu re to ev en en g ag e th is i n qu iry
, in stead
q u ick ly d ism issin g arg u m en ts ag ain s t its v iew , co n f irm s its erro r.G A R C I A V

. G O O G L E , I

N C

. 34

Among the other f a ct o rs 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 b etween the parties; whether the hiring party has the rig ht to assig n additional projects to the hired party ; the ex tent of the hired p arty ’s discretion

over when and how long to work; the method of pay ment; the h i r ed party ’ s role in hiring and p ay ing assistants; whether t h e work is part of the reg ular b u siness of the hiring party ; whether th e h iring party is in b usiness; the provision of e mp l o y e e b enefits; and the tax treatment of the hired party

.

Id

. a t 751–52 ( internal citations omitted). Thoug h “[ n] o o ne of these factors is determinative,” id. at 7 5 2, the hiring party ’s

c o n t rol “is the central inquiry here.” JustMed, Inc. v. B y ce , 600 F .3d 1118, 1125 (9th Cir. 2010).

The work for hire doctrine “ is important in the a naly sis o f motion picture authorship because in the United States most contributions to a motion pict u re are created a s works made f o r h i re.” Doug herty
, Not a Spike Lee Joint?
, 4 9 UCL A L

. Rev. at 238. Here
, G a r c i a c onceded in her c omplaint a nd affidavit that Yousse f “ m a nag ed all aspects of production,” controlling both the manner and means of makin g t h e film, including the scenes f

eaturing Garcia. F urther, this “ central” factor is not the only one supporting a work for hire finding here. The bulk of the other factors also sug g est that Garcia is

an employ ee. Youssef p rovided the instrumentali t i e s a nd tools, dictated the filmin g location, decided when and h ow long Garcia worked, and was eng ag ed in the business o f film making a t the time. Additionally
, G a r cia did not hire or payG A R C I A V

. G O O G L E , I

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. 35

assistants. Contrary to the majority ’s conclusion, maj. op. at 1 2–14, the facts and law do not clearly favor finding th at Garcia was not working

for hire. 9

I n Reid
, the Court decided a sculptor was n ot an employ e e, even thoug h Community for Creative NonV iolence “directed enoug h of Reid’s work to ensure t h a t h e produced a sculpture that met their specifications

. ” Reid
, 490 U.S. at 752. However, “all t h e o t her circumstances

w e i gh [ e d ] h e a v i l y a g a i n s t f i n d i n g a n e m ploy

m e n t relationship.” Id. T his cas e differs considerably from Reid

. The c e n t r a l factor of control and many o ther factors “weig h heavily ” for

finding an employ

ment relationship.

I n sum, the majority g ives z ero de f e rence to the district court’s position on the likelihood f o r success factor. T o 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 c ourt decided that because “[ t] he F ilm was posted for public viewing on YouTube” five months p rior to Garc i a bring ing suit, she “has not d emonstrated that the requested preliminary relief would prevent any al l eg ed harm.” The majority has f aile d t o d emonstrate h o w the district court abused its discretion in so holding

.

9 W h ile th e m aj o rity m ay d isp u te w h ich perso n w as actu ally d i r e c t i ng th e f ilm
, it can n o t o v e r c o m e Garcia’ s o w n ad m issio n s in h er co m

p lain t th at su b stan tiate th ese f

acts; sh e w as n o t in

co n t ro l.G A R C I A V

. G O O G L E , I

N C

. 36

I n d e e d
, the d istrict court’s application of the law to th e facts of this case he r e was not an abuse o f discretion. A “[ p] laintiff’s long delay before seeking a preliminary injunction implies a lack of urg e ncy and irreparable harm.” Oakland Tribune, Inc. v. Ch r o n icle Publ’g Co.
, 7 62 F .2d 1374, 1377 (9th Cir. 1 985). The district court g ave sig nificant weig ht to G arcia’s delay in filing suit, even gi v en Garcia’s

ex p lanati o n f

o r her delay

. See maj. op. a t 16–17. This is not illog ical or implausible. W ere Garcia really try ing to protect her purpor t e d copy

rig ht interest in her acting performance,

one would ex p ect her to have broug ht this action immediately after learning of the alleg ed infring ing behavior. Considering “[ t] he relevant harm is the harm that

. . . occurs to the parties’ leg al interests,” Garcia has f ailed to ex plain her d elay i n terms of harm to her alleg ed copy rig ht interest. See Salinger

v. Colting
, 607 F .3d 68, 81 & n.9 (2d Cir. 2010) (“[ T] he justification of the copy rig ht law is the protec t i o n o f the commercial interest of the a rtist/author. I t is not to coddle artistic vanity o r to protect secrecy , but to stimulate creation by protect i n g its r ewards.” (internal quotation marks omitted)).

F urther, by Garcia’s own admission, t h e f ilm has been widely discu s sed and disseminated; Garcia admits in her affidavit that she “went public a n d advised the world throug h media that [ she] did n ot condone the film.” Thus, while Garcia has provided undisputed evidence of past threats and injuries, she has failed to link h er a l l eg a tions of future harm
to potential f

uture viewing s of the film on YouTube. See Perfect 10 v. G oogle, Inc.
, 6 53 F

. 3d 976, 982 (9th Cir. 2 011); Ctr. for Food Safety v

. Vilsack
, 636 F .3d 1166, 1173 (9th Cir. 2011).G A R C I A V

. G O O G L E , I

N C

. 37

Therefore, it is not i llog ical or implausible to conclude that the law and f

acts do not clearly demonstrate how Garcia will suffer continued irreparable harm c a used by the presence

o f the film o n YouTube. See Small v. Operative P laster er s ’ and Cement Masons’ Int’l As s ’n Local 200
, 6 11 F .3d 483, 494 (9th Cir. 2010).

Rather t h a n focusing o n the log ic or plausibility of the district c our t ’ s decision, the majority substitutes its o wn

ex p lanation o f why Garcia’s delay should not be held ag ainst her. Maj. op. at 16–18. However, the weig h t attached by the district court to certain facts when measuring i rreparable harm is not for t h i s c o u r t to second g u ess. See Earth Island Inst. v. Carlton , 626 F .3d 462, 475 (9th Cir. 2010).

C. Balancing the Equities

W h en c onsidering the propriety of preliminary injunction relief, “a strong er showing of one e lement m a y o ffset a weaker showing of another.” Alliance f o r t h e W ild Rockies
, 632 F .3d at 1131. The district c ourt a p p l i e d this concept in concluding p reliminary injunctive relief was unw arranted without considering the b alance of the equities or the public interest.

However, th e balance of the equities does not clearly favor Garcia. A court must “balance the interests of a ll parties and weig h the damag e to each.” S tormans, Inc. v. Selecky
, 586 F .3d 1109, 1138 (9th Cir. 2009).

Goog le arg ues that the b alance of the equities d o es n ot clearly favor Garcia, b e c ause “[ a] court order requiring

re m o v a l from YouTube of the F ilm o r any portion thereof would impose a substantial bur d e n o n free ex pression,G A R C I A V

. G O O G L E , I

N C

. 38

without p reventing any future h arm to Appellant.” Garcia is only faced w i t h potential infring ement of her potential
copy rig ht interest p ending a final disposition of this lawsuit. F urther, she is not compl et e l y without fault in these circumstances. I f she v alued h er acting performance t o the

ex tent she now claims, why d i d n’t she protect her performance by contract? The facts evidence that sh e acted for three day s and was p aid $500 dollars. B alancing the harm faced by both Garcia and Goo gl e , the law and facts do not clearly favor Garcia.

I n its basis c once rning the balance of the e quities, the majority discusses Youssef’s reproachable conduct. Maj. op. at 18–19. However, Youssef is not a party to this appeal, a nd Goog le was not a party

to any of Youssef’s actions.

Therefore, the balance of the equities does not clearly favor Garcia.

D. P ublic Interest

“I n ex e rcising their sound discretion, c ourts of e quity should p ay particular reg ard f o r the public consequences in employ ing the extraordinary remedy of injunction.” Johnson

v. Couturier
, 572 F .3d 1067, 1 082 (9th Cir. 2009) (quoting W inter v. Natural Res. Def. Council, Inc.
, 5 55 U.S. 7, 24(2008)) (emphasi s added). I n fact, “‘the court may in the public interest withhold r elief until a fina l determination o f the rig hts of the parties, thoug h the p ostponeme n t m a y be burdensome to the plaintiff.’” S tormans , 586 F .3d at 1139 (quoting W

einberger v. Romero-Barcelo
, 456 U.S. 305, 312–313 (1982)).G A R C I A V

. G O O G L E , I

N C

. 39

The public’s interest in a robust F irst 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 alleg a tion of copy rig h t infring e m ent. Properly enforcing the C o p y rig ht Act is also a

n important public int e r est. See Small v. Avanti Health Sys., LLC
, 661 F .3d 1180, 1197 (9th Cir. 2011). I ndeed, if Goog le were actually infring ing Garcia’s copy rig ht, the F irst A mendment could n ot she l t e r i t. See Eldred v. A shcroft
, 537 U.S. 186, 219–20 (2003).

Bu t the case a t bar does not present copy righ t i n f r ing ement per se. I nstead (in an unprecedented opinion), the majority conc l u d e s that Garcia m ay have a copy rig ht interest in her acting performance. Maj. o p. at 10. As a r esult, Goog le’s contention, that issuing a p r eliminary injunction on these f acts may constitute a prior restraint of speech under the F irst Amendment, identifies an important public interest.

Thus, the law and facts do not clearly demonstrate how
g ranting a preliminary injunction in Gar cia’s favor would serve the public interest.

III. Conclusion

The S tanley standard counseling e x tr eme caution when considering g ranting a mandator y preliminary injunction is premised on principles of judi cial restraint. I nstead, the majority a

bandons restraint to procure an end (ordering the film be taken down) by unsuitable means (the Copy rig ht Act).