First Amendment v. Copyright – Who Wins?

google_copyrightEarlier this year, the Ninth Circuit, sitting en banc, reversed a decision by a three-member panel of the same court and found that a mandatory injunction against Google was unjustified. Garcia v. Google, Inc., No. 12-57302 (May 18, 2015). The appellate court explained that, "a weak copyright claim cannot justify censorship in the guise of authorship."

In Garcia, actress Cindy Lee Garcia was paid $500 to make a guest appearance in a film titled "Desert Warrior." Garcia's five-second (two-sentence) performance was "transformed . . . into part of a blasphemous video proclamation against the Prophet Mohammed." The writer-director of the film dubbed over Garcia's lines and replaced them with a voice asking, "Is your Mohammed a child molester?" The trailer for the film, now titled "Innocence of Muslims," was uploaded to YouTube. The video received millions of hits and, not surprisingly, caused Garcia to receive several death threats. In an effort to protect herself, Garcia argued that she has a copyright interest in her performance, a right that was infringed by the posting of the video without her consent. Garcia filed for an injunction requiring Google (the owner of YouTube) to take down the video. The district court denied her request and a divided panel of the Ninth Circuit reversed, despite characterizing her copyright claim as "fairly debatable." The three-judge panel did not substantively address the First Amendment implications of its decision.

The Ninth Circuit granted a rehearing en banc and received amicus briefs from several interested parties. The appellate court reversed its prior ruling and lifted the injunction. The Court likened Garcia's legal theory to "'copyright cherry picking,' which would enable any contributor from a costume designer down to an extra or best boy to claim copyright in random bits and pieces of a unitary motion picture without satisfying the requirements of the Copyright Act." Among its analysis and findings, the court found that Garcia has no copyright in her five-second acting performance as it appears in "Innocence of Muslims." "Garcia's theory of copyright law would result in the legal morass we warned against in [Aalmuhammed v. Lee, 202 F.3d 1227 (9th Cir. 2000)] – splintering a movie into many different 'works' . . . ." Google characterized her argument, which the court seemed to adopt, as "mak[ing] Swiss cheese of copyrights."

Importantly, following its analysis of Garcia's copyright arguments, the Ninth Circuit took time to consider the First Amendment implications of her claims. The court chastised the three-member panel's decision stating that it gave "short shrift to the First Amendment values at stake. The mandatory injunction censored and suppressed a politically significant film – based on a dubious and unprecedented theory of copyright." Distinguishing this case from "garden-variety copyright infringement," the appellate court stated that the "takedown order of a film of substantial interest to the public is a classic prior restraint of speech." (Citation omitted.) "Prior restraints pose the 'most serious and the least tolerable infringement on First Amendment rights . . . ." (Citations omitted.)

Round one goes to the First Amendment.

About The Author

Erin Rhinehart | Faruki Partner