Ninth Circuit Recognizes Copyright Interest in Actor’s Performance in Response to Fatwa to Justify Takedown of Video

by Davis Wright Tremaine LLP

The Ninth Circuit became the first federal appellate court to hold that an actor has a copyright interest in her performance, holding that a district court abused its discretion in denying a motion for preliminary injunction. The decision by Chief Judge Alex Kozinski in Garcia v. Google, Inc., Case No. 12-57308, requires Google to take down an anti-Islamic film and take reasonable steps to prevent further uploads. In a harshly worded dissent, Judge N. Randy Smith accused the majority of “mak[ing] new law in this circuit in order to reach the result it seeks” because the court “ha[s] never held that an actress’s performance could be copyrightable.”

The plaintiff, Cindy Lee Garcia, claimed the film’s writer and producer paid her $500 to play a minor role in an adventure film. But that movie never materialized, and instead, Garcia discovered her performance on Google’s YouTube platform in a different film, with her performance partially dubbed over with the inflammatory language “Is your Mohammed a child molester?” An Egyptian cleric issued a fatwa calling for the killing of everyone involved with the film, and Garcia received death threats. When Google refused to remove the video in response to her takedown notices under the Digital Millennium Copyright Act, she sued.

The district court refused to enter a preliminary injunction, but the Ninth Circuit reversed. Writing for the majority, Judge Kozinski stated that “[a]n actor’s performance, when fixed, is copyrightable” if it evinces “some minimal degree of creativity,” acknowledging that the question is “rarely litigated.” The Court found Garcia’s performance satisfied this standard.

The majority rejected Google’s claim that any work in which Garcia owned a copyright interest was one made for hire and thus belonged to the filmmaker, even though the filmmaker had given Garcia the script and directed the production. It also rejected Google’s implied license defense.

The panel appears to have been significantly influenced by the underlying facts, which it called “troubling,” and Google’s refusal to take the video down, which it found “disappointing, though perhaps not surprising.”

In dissent, Judge Smith wrote that Garcia’s acting performance is not a “work” within the meaning of the Copyright Act; Garcia was not the author of any such work, since she admitted the filmmaker provided the script, equipment, and direction; and in any event, the work would have been one made for hire, since Garcia conceded the filmmaker “managed all aspects of production.”

Finally, Judges Kozinski and Smith disagreed on the element of irreparable harm, with the former finding such harm existed by virtue of death threats and Garcia’s showing that those threats would lessen if Google removed the video, and the latter reasoning that Garcia delayed several months in bringing suit and the video had by now been widely discussed and disseminated.

The Court’s opinion raises free speech concerns. Although the majority and dissent agreed that the First Amendment does not protect against copyright infringement, it justified removal of the film only by finding a copyright interest where few (if any courts) had found one before. The parties apparently had not raised the fair use defense, which would have directly implicated the First Amendment.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Davis Wright Tremaine LLP | Attorney Advertising

Written by:

Davis Wright Tremaine LLP

Davis Wright Tremaine LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.