Case: 12-57302, 05/18/2015, ID: 9540348, DktEntry: 197-1, Page 8 of 42
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GARCIA V. GOOGLE
Asserting that she holds a copyright interest in her
fleeting performance, Garcia sought a preliminary injunction
requiring Google to remove the film from all of its platforms,
including YouTube. The district court denied the injunction,
finding that Garcia did not establish likely success on the
merits for her copyright claim. Nor did she demonstrate that
the injunction would prevent any alleged harm in light of the
film’s five-month presence on the Internet. A divided panel
of our court reversed, labeled her copyright claim as “fairly
debatable,” but then entered a mandatory injunction requiring
Google to remove the film. That injunction was later limited
to versions of the film featuring Garcia’s performance.
As Garcia characterizes it, “the main issue in this case
involves the vicious frenzy against Ms. Garcia that the Film
caused among certain radical elements of the Muslim
community.” We are sympathetic to her plight. Nonetheless,
the claim against Google is grounded in copyright law, not
privacy, emotional distress, or tort law, and Garcia seeks to
impose speech restrictions under copyright laws meant to
foster rather than repress free expression. Garcia’s theory can
be likened 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. Putting aside the rhetoric of Hollywood
hijinks and the dissent’s dramatics, this case must be decided
on the law.
In light of the Copyright Act’s requirements of an
“original work[] of authorship fixed in any tangible medium,”
17 U.S.C. § 102(a), the mismatch between Garcia’s copyright
claim and the relief sought, and the Copyright Office’s
rejection of Garcia’s application for a copyright in her brief
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