FOR PUBLICATION
UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT
C
INDY
L
EE
G
ARCIA
,
Plaintiff-Appellant
,v.G
OOGLE
,
I
NC
., a DelawareCorporation; Y
OU
T
UBE
,
LLC, aCalifornia limited liability company,
Defendants-Appellees
,and N
AKOULA
B
ASSELEY
N
AKOULA
, anindividual, AKA Sam Bacile; M
ARK
B
ASSELEY
Y
OUSSEF
;
A
BANOB
B
ASSELEY
N
AKOULA
;
M
ATTHEW
N
EKOLA
;
A
HMED
H
AMDY
;
A
MAL
N
ADA
;
D
ANIEL
K.
C
ARESMAN
;K
RITBAG
D
IFRAT
;
S
OBHI
B
USHRA
;R
OBERT
B
ACILY
;
N
ICOLA
B
ACILY
;T
HOMAS
J.
T
ANAS
;
E
RWIN
S
ALAMEH
;
Y
OUSSEFF
M.
B
ASSELEY
;M
ALID
A
HLAWI
,
Defendants
. No. 12-57302D.C. No.2:12-cv-08315-MWF-VBK OPINIONAppeal from the United States District Courtfor the Central District of CaliforniaMichael W. Fitzgerald, District Judge, Presiding
Case: 12-57302, 05/18/2015, ID: 9540348, DktEntry: 197-1, Page 1 of 42
G
ARCIA V
.
G
OOGLE
2Argued and Submitted En BancDecember 15, 2014—Pasadena CaliforniaFiled May 18, 2015Before: Sidney R. Thomas, Chief Judge, and AlexKozinski, M. Margaret McKeown, Marsha S. Berzon,Johnnie B. Rawlinson, Richard R. Clifton, Consuelo M.Callahan, N. Randy Smith, Mary H. Murguia, MorganChristen and Paul J. Watford, Circuit Judges.Opinion by Judge McKeown;Concurrence by Judge Watford;Dissent by Judge Kozinski
SUMMARY
*
Copyright / Preliminary Injunction
The en banc court affirmed the district court’s denial of Cindy Lee Garcia’s motion for a preliminary injunctionrequiring Google, Inc., to remove the film
Innocence of Muslims
from all of its platforms, including YouTube. A movie producer transformed Garcia’s five-secondacting performance for a film titled
Desert Warrior
into partof a blasphemous video proclamation against the ProphetMohammed.
Innocence of Muslims
was credited as a source
*
This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
Case: 12-57302, 05/18/2015, ID: 9540348, DktEntry: 197-1, Page 2 of 42
G
ARCIA V
.
G
OOGLE
3of violence in the Middle East, and Garcia received deaththreats.The en banc court held that the district court did not abuseits discretion in denying Garcia’s motion for a mandatory preliminary injunction because the law and facts did notclearly favor her claim to a copyright in her acting performance as it appeared in
Innocence of Muslims
. The en banc court credited the expert opinion of the CopyrightOffice, which had refused to register Garcia’s performanceapart from the film. The en banc court also held that in thecontext of copyright infringement, the only basis upon whichthe preliminary injunction was sought, Garcia failed to makea clear showing of irreparable harm to her interests as anauthor.The en banc court dissolved the three-judge panel’samended takedown injunction against the posting or displayof any version of
Innocence of Muslims
that includedGarcia’s performance. The en banc court held that theinjunction was unwarranted and incorrect as a matter of lawand was a prior restraint that infringed the First Amendmentvalues at stake.Concurring in the judgment, Judge Watford wrote that themajority should not have reached the issue of copyright law, but rather should have affirmed, without controversy, on the basis of Garcia’s failure to establish a likelihood of irreparable harm.Dissenting, Judge Kozinski wrote that Garcia’s dramatic performance met all of the requirements for copyright protection. He wrote that her copyright claim was likely to
Case: 12-57302, 05/18/2015, ID: 9540348, DktEntry: 197-1, Page 3 of 42