Case: 12-57302, 05/18/2015, ID: 9540348, DktEntry: 197-1, Page 23 of 42
GARCIA V. GOOGLE
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For better or for worse, Youssef and his crew “fixed”
Garcia’s performance in the tangible medium, whether in
physical film or in digital form. However one might
characterize Garcia’s performance, she played no role in
fixation. On top of this, Garcia claims that she never agreed
to the film’s ultimate rendition or how she was portrayed in
Innocence of Muslims, so she can hardly argue that the film
or her cameo in it was fixed “by or under [her] authority.”
17 U.S.C. § 101.
In sum, the district court committed no error in its
copyright analysis. Issuance of the mandatory preliminary
injunction requires more than a possible or fairly debatable
claim; it requires a showing that the law “clearly favor[s]”
Garcia. See Stanley, 13 F.3d at 1320. Because neither the
Copyright Act nor the Copyright Office’s interpretation
supports Garcia’s claim, this is a hurdle she cannot clear.
B. IRREPARABLE HARM
Although we could affirm the district court solely on the
copyright issue, see DISH Network, 653 F.3d at 776–77, we
address irreparable harm because the grave danger Garcia
claims cannot be discounted and permeates the entire lawsuit.
At first blush, irreparable harm looks like Garcia’s
strongest argument. Garcia understandably takes seriously
the fatwa and threats against her and her family, and so do
we. The difficulty with Garcia’s claim is that there is a
mismatch between her substantive copyright claim and the
motion picture,” as the Copyright Office put it. See Effects Assocs.,
908 F.2d at 558–59 (recognizing independent copyrightability of special
effects footage incorporated into film).
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