Plaintiff brought a copyright infringement suit to force Google to remove from YouTube an incendiary film called Innocence of Muslims, in which plaintiff involuntarily appeared. The district court denied plaintiff’s request for a preliminary injunction. The Ninth Circuit, in a 2-1 decision and over a vigorous dissent, reversed the district court’s decision and ordered the film’s takedown, ruling that plaintiff was likely to succeed on her claim that the film infringed her copyright in her performance and that the remaining preliminary injunction factors weighed in plaintiff’s favor.
Plaintiff was paid $500 for three and a half days of shooting scenes for a low-budget, amateur film with the working title Desert Warrior. Desert Warrior was never released, but plaintiff’s performance was included in an anti-Islamic film called Innocence of Muslims, including a scene in which the film’s producers dubbed over her performance so that it appeared that she was asking the question: “Is your Mohammed a child molester?” Innocence of Muslims “went viral” after being uploaded to YouTube. Many believed the film to be blasphemous and insulting to Muslims. An Egyptian cleric issued a fatwa, or religious order, calling for the killing of all people involved with the film, and plaintiff received death threats.
Plaintiff issued eight takedown notices asking Google to remove the film from YouTube, pursuant to the Digital Millennium Copyright Act. When Google declined to remove the film in response to any of plaintiff’s eight takedown notices, plaintiff filed suit, asserting that the film violated her copyright in her performance. In denying plaintiff’s motion for preliminary injunction, the district court found that plaintiff had failed to demonstrate that an injunction would prevent the alleged harm she faced and that plaintiff was unlikely to succeed in her claim that she had a copyright interest in the performance that the film had infringed.
The Ninth Circuit reversed. Ruling that the district court abused its discretion in denying plaintiff’s motion, the majority, in an opinion written by Chief Judge Kozinski, first found that plaintiff’s performance within the film was independently copyrightable because it had been fixed in a tangible medium of expression and was the product of at least a minimal degree of creativity. Second, the majority concluded that, on the record before it, plaintiff’s performance was not a “work for hire” on behalf of the filmmaker because there was no written agreement transferring plaintiff’s interests and because the evidence in the record did not support that plaintiff was the filmmaker’s “employee” under traditional agency principles. While accepting Google’s contention that plaintiff had granted the filmmaker an implied license for use of her performance and acknowledging that such implied licenses must be construed very broadly, the majority stated that the filmmaker exceeded the bounds of such implied license, because plaintiff was told that she would be acting in an adventure film sent in ancient Arabia, yet the filmmaker used her performance in an entirely different work – one that was not “intended to entertain at all.” According to the majority, that the filmmaker lied to plaintiff to secure her participation and that she agreed to perform in reliance on a lie were clear signs that the filmmaker exceeded the bounds of any license, and the filmmaker’s fraud alone was likely to void any agreement that he had with plaintiff.
Having found that plaintiff was likely to succeed on the merits of her claim, the Ninth Circuit went on to find that she would be irreparably harmed were the injunction not granted. The harm was not to plaintiff’s copyright or her economic interest but rather to her life. “To the extent the irreparable harm inquiry is at all a close question,” the majority wrote, “we think it best to err on the side of life.” The majority concluded by finding that a balance of the equities and the public interest favored an injunction.
Judge Smith dissented, first noting that the majority did not give appropriate deference to the district court and then opining that plaintiff was unlikely to prevail on her copyright infringement claim. In Judge Smith’s view, plaintiff was unlikely to establish any copyrightable interest in her performance because (1) her performance is not a copyrightable “work” within the meaning of the Copyright Act; (2) she was not the author of her performance; and (3) an actress’s performance in a film, like a vocalist’s voice, is too personal to be “fixed” in a tangible medium of expression and thus is not copyrightable. Judge Smith further concluded that even if plaintiff had a copyrightable interest in her performance in a film, her performance was a work made for hire because she had no control over the production of the film or the scenes in which she was featured.
Judge Smith also took exception with the majority’s irreparable harm finding, arguing that the requisite irreparable harm must be to plaintiff’s interests in her copyright, not the death threats she received. Innocence of Muslims has already been widely viewed and discussed and remains viewable on platforms other than YouTube, making a takedown order to YouTube unlikely to cure the threat of physical harm to plaintiff. Finally, Judge Smith found that the balance of equities did not clearly favor plaintiff and that plaintiff’s marginal copyright claim did not outweigh the public interest in a robust First Amendment.