In May, the United States Court of Appeals for the Ninth Circuit issued its long-awaited en banc opinion in Garcia v. Google, 743 F.3d 1258 (9th Cir. 2014), reversing a broad secret injunction issued by the three-judge panel. The case, stemming from an actress, Cindy Lee Garcia, who claimed she had been tricked into performing in a controversial anti-Muslim movie, had drawn widespread industry and media attention as evidenced by the 13 amicus briefs on appeal. A three-judge panel of the Ninth Circuit had issued a mandatory injunction to Google to take down all versions of the film and to keep monitoring to take down any more that were uploaded. It had also issued a gag order prohibiting Google from telling anyone about the secret injunction for nearly a week.
The en banc panel reinstated the district court's denial of a preliminary injunction, finding that Garcia was unlikely to meet all the requirements for the injunction she wanted. It looked to the factors the Supreme Court set out in Winter v. NRDC, 555 U.S. 7 (2008): Garcia had to show that: (1) she was likely to succeed on the merits; (2) she was likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tipped in her favor; and (4) an injunction was in the public interest. The en banc opinion also emphasized that Garcia wanted Google to remove and keep removing the film from YouTube, in essence a mandatory injunction requiring Google to take action rather than simply refrain from action. A mandatory injunction required her to show that the law and facts clearly weighed in her favor.
Garcia could not clearly establish that she held a copyright in her brief performance in the film at issue for a number of reasons: (1) deferring to the expertise of the Copyright Office which denied her registration, she did not fall under the Copyright Act's definition of an author of the film; (2) Garcia's theory would splinter copyright in works involving many actors or contributors, creating logistical and financial nightmares; and (3) in order for copyright to attach, an author must "fix" the work, and the director, not Garcia, "fixed" her performance by recording it.
Garcia also had failed to show irreparable harm to her copyright interests. Instead, all the harms she claimed, and on which the three-judge panel had relied, were threats of violence based on her association with a negative portrayal of Muslims, not damage to any economic copyright interest, such as the marketability of her performance.
The en banc panel vacated the injunction that had been in place for over a year, but Judge Reinhardt criticized the delay caused by the court's refusal to hear the case immediately. In dissent of the order that had refused to hear en banc the panel's denial of an emergency stay of the injunction, Judge Reinhardt called the injunction "unconscionable" and labeled the court an "architect" of "the infringement of fundamental First Amendment rights" which caused "irreparable damage to free speech rights in the lengthy intervening period."
The case formally closed in late June, with Garcia stipulating to dismissal.
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