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Ninth Circuit Grants Preliminary Injunction in Copyright Suit Against Google, YouTube

Anti-Islam_Film_protests_(8009245996).jpgThe Ninth Circuit Court of Appeals recently granted a preliminary injunction that could have far-reaching implications for California businesses. The plaintiff, who is an actress, filed a copyright infringement lawsuit alleging that a filmmaker used footage of her in a movie without her permission. Garcia v. Google, Inc., et al (Garcia I), No. 2:12-cv-08315, complaint (C.D. Cal., Sep. 26, 2012). She sought a preliminary injunction requiring Google and YouTube to remove the movie from its servers. The Ninth Circuit found that she met the legal requirements for an injunction and reversed the district court’s denial of her request. Garcia v. Google, Inc., et al (Garcia II), No. 12-57302, slip op. (9th Cir., Feb. 26, 2014).

According to the plaintiff’s complaint, she agreed to appear in a low-budget historical action film entitled Desert Warrior, but the filmmakers used her footage in a different film, entitled The Innocence of Muslims, without her permission. The film has been widely, sometimes violently, criticized as anti-Muslim propaganda. In the English-language version of the film, the plaintiff’s character appears to accuse Mohammed of being a “child molester,” but the plaintiff claims that she never said these words and the dialogue was dubbed over what she actually said. Garcia I at 4. The plaintiff and her family have allegedly received multiple death threats because of the film.

The plaintiff claims that she never signed a release authorizing the filmmakers to use her footage in a different project, and that she therefore owns a copyright in her performance. She has a pending application to register the footage with the U.S. Copyright Office. After sending multiple “takedown notices” under the Digital Millennium Copyright Act to Google and YouTube, she filed suit. She is claiming direct and indirect copyright infringement against all defendants, as well as fraud and other claims against the filmmakers.

The district court denied her request for a preliminary injunction, which would order YouTube to remove all infringing materials. This is a tall order, as YouTube is one of the largest websites and search engines in the world, perhaps second only to its parent, Google. The Ninth Circuit reversed, finding that she had established the four factors required for an injunction: (1) likelihood of the plaintiff’s success on the merits, (2) “irreparable harm” without an injunction, (3) the “balance of equities,” and (4) the “public interest.” Garcia II at 5, citing Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008).

The court found that she is likely to succeed on the merits of her copyright claim, distinguishing it from prior Ninth Circuit cases. In Aalmuhammed v. Lee, 202 F.3d 1227 (9th Cir. 2000), the court rejected a copyright claim by a consultant who helped Spike Lee prepare for the film Malcolm X, finding that an individual’s contribution to a film did not make them a “joint author” for copyright purposes. In Garcia, the plaintiff is not claiming joint authorship, but rather infringement of her “independently copyrightable contribution.” Garcia II at 7. The court found that repeated death threats constitute “irreparable harm,” that the filmmakers’ alleged fraud balances the equities in the plaintiff’s favor, and that Google’s First Amendment arguments cannot overcome the copyright infringement issue.

If you or your business has a dispute over a contract or other business matter, a skilled business and commercial lawyer can advise you of your rights and protect your interests. James G. Schwartz has represented Bay Area businesses since 1976. To schedule a free and confidential consultation to discuss your case, please contact us today online or at (925) 463-1073.

More Blog Posts:

Lawsuit in California addresses intellectual property rights, Pleasanton Business & Commercial Law Blog, November 19, 2012

CMG loses California copyright case over Marilyn Monroe images, Pleasanton Business & Commercial Law Blog, September 12, 2012

‘Call of Duty’: Intellectual property theft or wrongful termination? Pleasanton Business & Commercial Law Blog, May 23, 2012

Photo credit: By Firdaus Latif (Anti-Islam Film protests; Uploaded by russavia) [CC-BY-SA-2.0], via Wikimedia Commons.