Garcia v. Google – Performance as a Copyrightable Interest

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June 18, 2015
Lisa Johnson
SmithAmundsen Intellectual Property Alert

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An injunction requiring Google, Inc. to remove a video from YouTube was recently dissolved by California’s 9th Circuit Court of Appeals. The injunction was issued by a majority panel of that court based on its finding that an actress owned copyright interests in her performance. Numerous parties filed friend of the court briefs including Facebook, Electronic Frontier Foundation, ACLU, Twitter, and Netflix, among other media, entertainment, and legal interest organizations.

The plaintiff, Cindy Garcia, was hired by producer, Mark Youssef for a cameo appearance of two lines in an adventure movie to be called “Desert Warrior.” For her efforts, Garcia was paid $500. Rather than make the film described to Garcia, Youssef dubbed over her lines with an insult of the prophet Mohammed. He included her dubbed-over performance in an anti-Islamic movie called “Innocence of Muslims” that was placed on YouTube. Massive protests receiving world-wide news coverage resulted from that video and a fatwa was issued against all persons involved in the production, including Garcia. She and her family began receiving death threats.

In an effort to force Google to remove the video from YouTube, Garcia filed copyright applications which were denied by the Copyright Office and filed lawsuits including claims based on copyright infringement. In the end, her copyright claim was the sole basis of the injunction request. Finding for Google, the court dissolved the preliminary injunction because Garcia could not show the required likelihood of success on the merits and credited the expert opinion of the Copyright Office which had rejected her copyright applications.

The court held that there was not a copyright interest in Garcia’s performance apart from the film because it could not meet the Copyright Act’s requirement of “an original work of authorship fixed in a tangible medium.” The “fixation” element is required to be by or under the authority of an author. Unfortunately for Garcia, her performance was “fixed” by Youssef.

The court also expressed concern that finding in Garcia’s favor would result in multiple and fractured ownership of copyright interests in any film, including in only minor contributors. On a philosophical note, the court also reasoned that Garcia sought to impose speech restrictions under copyright laws intended to foster rather than repress free expression.

Garcia’s failure to meet the likelihood of success requirement for granting an injunction was decisive, but the court also discussed the likelihood of irreparable harm requirement to acknowledge her plight and the serious threat of harm against her person. The opinion stated that the harm to be weighed in review of the injunction was the harm related to the legal interest sought to be protected, not simply the risk of harm, however serious. Because the interest she sought to protect was based on the unsupportable copyright claim, rather than potentially more legitimate claims related to her injury, the consideration of irreparable harm to her person was not a factor which the court could consider in review.