Ninth Circuit amends earlier opinion in which it reversed district court’s denial of injunction requiring removal from YouTube.com of anti-Islamic video, reaffirming that plaintiff had established likelihood of success on merits and irreparable harm, but nevertheless clarifying that its opinion did not preclude district court from concluding that plaintiff did not have copyrightable interest in her performance in video and did not preclude defendant Google from asserting defenses based on fair use doctrine or section 230 of Communications Decency Act.
The Ninth Circuit Court of Appeals filed an amended opinion, clarifying an earlier order in which it reversed the district court’s denial of an injunction against Google.
Plaintiff Cindy Lee Garcia was paid approximately $500 for three and a half days of shooting scenes for a low-budget 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 the Muslims. In the film, plaintiff’s performance was dubbed over so that it appeared she was asking “Is your Mohammed a child molester?” The video “went viral” after being uploaded to YouTube. An Egyptian cleric issued a fatwa, calling for the killing of everyone involved with the film, and plaintiff received death threats.
The original Ninth Circuit opinion concluded that an injunction was warranted because plaintiff was likely to prevail on her copyright infringement claim and that the remaining factors generally militated in favor of an injunction. (Read our summary of the Ninth Circuit’s original opinion here.) The amended opinion kept the injunction in place and reaffirmed that, based on the record and arguments before the Court of Appeals, the plaintiff likely had a copyrightable interest in her performance. Nevertheless, the Court of Appeals went on to state that nothing in the opinion would preclude the district court from finding that the plaintiff does not have a copyrightable interest in her performance. Writing for the majority, Chief Judge Kozinski recognized that after the court issued its first opinion, the United States Copyright Office denied plaintiff’s request to register a copyright in her performance. The Court of Appeals stated that, although this refusal to register the performance did not preclude a finding that her performance is copyrightable, the district court may defer to the Copyright Office’s reasoning to the extent it is persuasive.
The amended opinion also noted that, following its initial opinion, amici raised other issues, such as the applicability of the fair use doctrine and section 230 of the Communications Decency Act. The Court of Appeals did not address these defenses because they were not raised by the parties but stated that the district court is free to consider them if properly raised by Google.
Judge Smith, who dissented in the original opinion, filed an amended dissent in which he stated that the amended portions of the opinion revealed the errors of the decision. According to Justice Smith, the panel majority failed to show appropriate deference to the district court and ignored the stringent standards disfavoring injunctions unless circumstances clearly favor the moving party: “the majority’s equivocation cements its error.” Also, the dissent stated that the majority avoided counterarguments, such as the fair use defense, quickly dismissing them because they were not raised by the parties. However, the majority could have considered these arguments sua sponte so long as public interests are involved or where to not do so would be unduly harsh to one or both parties.