Something strange happened Friday in the infamous case of Cindy Lee Garcia v. Google at the 9th U.S. Circuit Court of Appeals. Chief Judge Alex Kozinski, who wrote the opinion in February that enjoined Google from linking to the anti-Islam film “Innocence of Muslims,” filed an amended opinion, even as the entire 9th Circuit considers Google’s petition for en banc review of the controversial February ruling.
The amended opinion, in which Kozinski is joined by Judge Ronald Gould, left the injunction in place but walked back a step or two from the controversial holding that the actor Cindy Lee Garcia is likely to succeed on the merits of her claim that Google is infringing her copyrighted five-second performance in ‘Innocence.’ (Garcia, as you may recall, was deceived by the maker of the inflammatory film, who overdubbed her lines to make it appear as though her character was calling Mohammad a pedophile. The film led to riots in the Muslim world and death threats against Garcia.)
The panel’s original holding that actors may, in certain circumstances, have an independent copyright on their individual performances threw Hollywood, Internet companies and First Amendment fans into a tizzy; Google’s en banc petition attracted 10 amicus briefs from dozens of interested parties. The new opinion, which adds only a few paragraphs to the original, cautions that the 9th Circuit injunction does not dictate a finding that Garcia actually has a copyright on her performance nor that Google is not entitled to fair use of the copyrighted material.
The changes acknowledged a couple of the arguments Google and its friends made in their en banc briefing but said they shouldn’t change the outcome of the injunction case. Google, for instance, dropped a bombshell in its petition, revealing that the U.S. Copyright Office had just rejected Garcia’s application for a copyright on her performance under its longstanding policy that actors don’t have rights to individual performances within a film. The amended opinion said that U.S. District Judge Michael Fitzgerald of Los Angeles is welcome to defer to the Copyright Office’s decision when he decides the merits of Garcia’s infringement claim, but that the Copyright Office’s refusal to grant Garcia a copyright doesn’t preclude the 9th Circuit’s injunction.
Kozinski noted but brushed aside amicus arguments that Google was making fair use of Garcia’s performance through YouTube links to the anti-Islam film. “Because these defenses were not raised by the parties, we do not address them,” the amended opinion said. “The district court is free to consider them if Google properly raises them.”