Case: 12-57302, 05/18/2015, ID: 9540348, DktEntry: 197-1, Page 1 of 42
`
`FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`No. 12-57302
`
`D.C. No.
`2:12-cv-08315-
`MWF-VBK
`
`OPINION
`
`CINDY LEE GARCIA,
`Plaintiff-Appellant,
`
`v.
`
`GOOGLE, INC., a Delaware
`Corporation; YOUTUBE, LLC, a
`California limited liability company,
`Defendants-Appellees,
`
`and
`
`NAKOULA BASSELEY NAKOULA, an
`individual, AKA Sam Bacile; MARK
`BASSELEY YOUSSEF; ABANOB
`BASSELEY NAKOULA; MATTHEW
`NEKOLA; AHMED HAMDY; AMAL
`NADA; DANIEL K. CARESMAN;
`KRITBAG DIFRAT; SOBHI BUSHRA;
`ROBERT BACILY; NICOLA BACILY;
`THOMAS J. TANAS; ERWIN
`SALAMEH; YOUSSEFF M. BASSELEY;
`MALID AHLAWI,
`
`Defendants.
`
`Appeal from the United States District Court
`for the Central District of California
`Michael W. Fitzgerald, District Judge, Presiding
`
`

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`2
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`GARCIA V. GOOGLE
`
`Argued and Submitted En Banc
`December 15, 2014—Pasadena California
`
`Filed May 18, 2015
`
`Before: Sidney R. Thomas, Chief Judge, and Alex
`Kozinski, M. Margaret McKeown, Marsha S. Berzon,
`Johnnie B. Rawlinson, Richard R. Clifton, Consuelo M.
`Callahan, N. Randy Smith, Mary H. Murguia, Morgan
`Christen and Paul J. Watford, Circuit Judges.
`
`Opinion by Judge McKeown;
`Concurrence by Judge Watford;
`Dissent by Judge Kozinski
`
`SUMMARY*
`
`Copyright / Preliminary Injunction
`
`The en banc court affirmed the district court’s denial of
`Cindy Lee Garcia’s motion for a preliminary injunction
`requiring Google, Inc., to remove the film Innocence of
`Muslims from all of its platforms, including YouTube.
`
`A movie producer transformed Garcia’s five-second
`acting performance for a film titled Desert Warrior into part
`of a blasphemous video proclamation against the Prophet
`Mohammed. Innocence of Muslims was credited as a source
`
` * This summary constitutes no part of the opinion of the court. It has
`been prepared by court staff for the convenience of the reader.
`
`

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`GARCIA V. GOOGLE
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`3
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`of violence in the Middle East, and Garcia received death
`threats.
`
`The en banc court held that the district court did not abuse
`its discretion in denying Garcia’s motion for a mandatory
`preliminary injunction because the law and facts did not
`clearly favor her claim to a copyright in her acting
`performance as it appeared in Innocence of Muslims. The en
`banc court credited the expert opinion of the Copyright
`Office, which had refused to register Garcia’s performance
`apart from the film. The en banc court also held that in the
`context of copyright infringement, the only basis upon which
`the preliminary injunction was sought, Garcia failed to make
`a clear showing of irreparable harm to her interests as an
`author.
`
`The en banc court dissolved the three-judge panel’s
`amended takedown injunction against the posting or display
`of any version of Innocence of Muslims that included
`Garcia’s performance. The en banc court held that the
`injunction was unwarranted and incorrect as a matter of law
`and was a prior restraint that infringed the First Amendment
`values at stake.
`
`Concurring in the judgment, Judge Watford wrote that the
`majority should not have reached the issue of copyright law,
`but rather should have affirmed, without controversy, on the
`basis of Garcia’s failure to establish a likelihood of
`irreparable harm.
`
`Dissenting, Judge Kozinski wrote that Garcia’s dramatic
`performance met all of the requirements for copyright
`protection. He wrote that her copyright claim was likely to
`
`

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`GARCIA V. GOOGLE
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`ucceed and that she had made an ample showing of
`irreparable harm.
`
`4 s
`
`COUNSEL
`
`M. Cris Armenta, The Armenta Law Firm ACP, Los Angeles,
`California; Credence Sol, La Garenne, Chauvigng, France;
`and Jason Armstrong, Bozeman, Montana, for Plaintiff-
`Appellant.
`
`Neal Kumar Katyal, Christopher T. Handman, Dominic F.
`Perella, and Sean Marotta, Hogan Lovells US LLP,
`Washington, D.C.; and Timothy Alger and Sunita Bali,
`Perkins Coie LLP, Palo Alto, California, for Defendants-
`Appellees Google, Inc. and YouTube LLC.
`
`Michael H. Page and Joseph C. Gratz, Durie Tangrie LLP,
`San Francisco, California, for Amicus Curiae Netflix, Inc..
`
`Christopher Jon Sprigman, New York University School of
`Law, New York, New York; Christopher Newman, George
`Mason University School of Law, Arlington, Virginia; and
`Jennifer S. Grannick, Stanford Law School, Stanford,
`California, for Amici Curiae Professors of Intellectual
`Property.
`
`Matt Schruers, Washington, D.C., for Amicus Curiae
`Computer & Communications Industry Association.
`
`Corynne McSherry and Vera Ranieri, Electronic Frontier
`Foundation, San Francisco, California; Lee Rowland and
`Brian Hauss, American Civil Liberties Union, New York,
`New York; Sherwin Siy and John Bergmayer, Public
`
`

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`GARCIA V. GOOGLE
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`5
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`Knowledge, Washington, D.C.; Art Neill and Teri Karobonik,
`New Media Rights, San Diego, California; Erik Stallman,
`Center for Democracy & Technology, Washington, D.C.; and
`Jonathan Band, Jonathan Band PLLC of Washington, D.C.,
`for Amici Curiae Electronic Frontier Foundation, American
`Civil Liberties Union, Public Knowledge, Center for
`Democracy and Technology, New Media Rights, American
`Library Association, Association of College and Research
`Libraries, and Association of Research Libraries.
`
`Catherine R. Gellis, Sausalito, California, for Amici Curiae
`Floor 64, Inc., and Organization for Transformative Works.
`
`Christopher S. Reeder, Robins, Kaplan, Miller & Ciresi LLP,
`Los Angeles, California; David Leichtman and Michael A.
`Kolcun, Robins, Kaplan, Miller & Ciresi LLP, New York,
`New York; and Kathryn Wagner, Stacy Lefkowitz, and
`Kristine Hsu, New York, New York, for Amicus Curiae
`Volunteer Lawyers for the Arts, Inc.
`
`Andrew P. Bridges, David L. Hayes, Kathryn J. Fritz, and
`Todd R. Gregorian, Fenwick & West LLP, San Francisco
`California, for Amici Curiae Adobe Systems, Inc.,
`Automattic, Inc., Facebook, Inc., Gawker Media, LLC,
`IAC/Interactive Corp., Kickstarter, Inc., Pinterest, Inc.,
`Tumblr, Inc., and Twitter, Inc.
`
`Venkat Balasubramani, Focal PLLC, Seattle, Washington;
`Eric Goldman, Santa Clara University School of Law, Santa
`Clara, California, for Amici Curiae Internet Law Professors.
`
`Gary L. Bostwick, Bostwick Law, Los Angeles, California;
`Jack I. Lerner, UCI Intell. Prop., Arts & Tech. Clinic, Irvine,
`California; Michael C. Donaldson, Donaldson + Callif, LLP,
`
`

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`GARCIA V. GOOGLE
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`6 B
`
`everly Hills, California; Lincoln D. Bandlow, Lanthrop &
`Gage LLP, Los Angeles, California; and Rom Bar-Nissim,
`Los Angeles, California, for Amici Curiae International
`Documentary Association, Film Independent, Fredrik Gertten
`and Morgan Spurlock.
`
`Kelli L. Sager, Dan Laidman and Brendan N. Charney, Davis
`Wright Tremaine LLP, Los Angeles, California, for Amici
`Curiae Los Angeles Times Communications LLC; The E.W.
`Scripps Company; Advance Publications, Inc.; The New
`York Times Company; The Washington Post; the Reporters
`Committee for Freedom of the Press; National Public Radio,
`Inc.; the National Press Photographers Association; the
`California Newspaper Publishers Association; and the First
`Amendment Coalition.
`
`Duncan Crabtree-Ireland and Danielle S. Van Lier, SAG-
`AFTRA, Los Angeles, California; Thomas R. Carpenter,
`Actors’ Equity Association, New York, New York; Jennifer
`P. Garner, American Federation of Musicians of the United
`States and Canada, New York, New York; Dominick Luquer,
`International Federation of Actors, Brussels, Belgium; and
`Elichai Shaffir, Counsel for Alliance of Canadian Cinema,
`Television, and Radio Artists, Toronto, Ontario, for Amici
`Curiae Screen Actors Guild–American Federation of
`Television and Radio Artists; Actors’ Equity Association;
`American Federation of Musicians of the United States and
`Canada; International Federation of Actors; Alliance of
`Canadian Cinema, Television, and Radio Artists; Equity UK;
`Media, Entertainment and Arts Alliance–Equity Division
`(Australia & New Zealand); and South African Guild of
`Actors.
`
`

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`GARCIA V. GOOGLE
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`7
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`Paul Alan Levy and Scott Michelman, Public Citizen
`Litigation Group, Washington, D.C., for Amicus Curiae
`Public Citizen.
`
`Justin Hughes, Loyola Law School, Los Angeles, California,
`for Amici Curiae Professors Shyamkrishna Balganesh, Justin
`Hughes, Pete Menell, and David Nimmer.
`
`OPINION
`
`McKEOWN, Circuit Judge:
`
`In this case, a heartfelt plea for personal protection is
`juxtaposed with the limits of copyright law and fundamental
`principles of free speech. The appeal teaches a simple
`lesson—a weak copyright claim cannot justify censorship in
`the guise of authorship.
`
`By all accounts, Cindy Lee Garcia was bamboozled when
`a movie producer transformed her five-second acting
`performance into part of a blasphemous video proclamation
`against the Prophet Mohammed.1 The producer—now in jail
`on unrelated matters—uploaded a trailer of the film,
`Innocence of Muslims, to YouTube. Millions of viewers soon
`watched it online, according to Garcia. News outlets credited
`the film as a source of violence in the Middle East. Garcia
`received death threats.
`
` 1 We use the transliteration “Mohammed” because both parties use this
`spelling.
` We note
`that, according
`to
`the American Library
`Association-Library of Congress Arabic Romanization Table, available
`at http://www.loc.gov/catdir/cpso/roman.html, an alternate transliteration
`is “Muhammad.”
`
`

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`8
`
`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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`GARCIA V. GOOGLE
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`9
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`performance, we conclude that the district court did not abuse
`its discretion in denying Garcia’s request for the preliminary
`injunction. As a consequence, the panel’s mandatory
`injunction against Google was unjustified and is dissolved
`upon publication of this opinion.
`
`BACKGROUND AND PROCEDURAL HISTORY
`
`In July 2011, Cindy Lee Garcia responded to a casting
`call for a film titled Desert Warrior, an action-adventure
`thriller set in ancient Arabia. Garcia was cast in a cameo role,
`for which she earned $500. She received and reviewed a few
`pages of script. Acting under a professional director hired to
`oversee production, Garcia spoke two sentences: “Is George
`crazy? Our daughter is but a child?” Her role was to deliver
`those lines and to “seem[] concerned.”
`
`Garcia later discovered that writer-director Mark Basseley
`Youssef (a.k.a. Nakoula Basseley Nakoula or Sam Bacile)
`had a different film in mind: an anti-Islam polemic renamed
`Innocence of Muslims. The film, featuring a crude
`production, depicts the Prophet Mohammed as, among other
`things, a murderer, pedophile, and homosexual. Film
`producers dubbed over Garcia’s lines and replaced them with
`a voice asking, “Is your Mohammed a child molester?”
`Garcia appears on screen for only five seconds.
`
`Almost a year after the casting call, in June 2012, Youssef
`uploaded a 13-minute-and-51-second trailer of Innocence of
`Muslims to YouTube, the video-sharing website owned by
`Google, Inc., which boasts a global audience of more than
`
`

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`10
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`GARCIA V. GOOGLE
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`one billion visitors per month.2 After it was translated into
`Arabic, the film fomented outrage across the Middle East,
`and media reports linked it to numerous violent protests. The
`film also has been a subject of political controversy over its
`purported connection to the September 11, 2012, attack on
`the United States Consulate in Benghazi, Libya.
`
`Shortly after the Benghazi attack, an Egyptian cleric
`issued a fatwa against anyone associated with Innocence of
`Muslims, calling upon the “Muslim Youth in America[] and
`Europe” to “kill the director, the producer[,] and the actors
`and everyone who helped and promoted this film.” Garcia
`received multiple death threats.
`
`Legal wrangling ensued. Garcia asked Google to remove
`the film, asserting it was hate speech and violated her state
`law rights to privacy and to control her likeness. Garcia also
`sent Google five takedown notices under the Digital
`Millenium Copyright Act, 17 U.S.C. § 512, claiming that
`YouTube’s broadcast of Innocence of Muslims infringed her
`copyright in her “audio-visual dramatic performance.”
`Google declined to remove the film.
`
`On September 19, 2012, Garcia first sued Google,
`Youssef, and other unnamed production assistants in Los
`Angeles Superior Court.
` Her complaint alleged a
`compendium of torts and assorted wrongdoing under
`California law. As against Google, Garcia made claims for
`invasion of privacy, false light, and violating her right to
`publicity. She brought the same claims against Youssef and
`added fraud, unfair business practices, slander, and
`
` 2 See YouTube.com Press Statistics, https://www.youtube.com/yt/
`press/statistics.html (last visited May 13, 2015).
`
`

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`GARCIA V. GOOGLE
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`11
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`intentional infliction of emotional distress. The state court
`denied Garcia’s motion for a “temporary restraining order and
`for an order to show cause re preliminary injunction,”
`because she had “not shown a likelihood of success on the
`merits.” On September 25, 2012, Garcia voluntarily
`dismissed her state court suit.
`
`One day later, Garcia turned to federal court. She filed
`suit in the United States District Court for the Central District
`of California and again named Google and Youssef as co-
`defendants. Garcia alleged copyright infringement against
`both defendants and revived her state law claims against
`Youssef for fraud, unfair business practices, libel, and
`intentional infliction of emotional distress.
`
`Garcia then moved for a temporary restraining order and
`for an order to show cause on a preliminary injunction—but
`only on the copyright claim. She sought to bar Google from
`hosting Innocence of Muslims on YouTube or any other
`Google-run website.
`
`On November 30, 2012, the district court denied Garcia’s
`motion for a preliminary injunction. As an initial matter, the
`court concluded that “Garcia ha[d] not demonstrated that the
`requested relief would prevent any alleged harm,” because,
`by that point, the film trailer had been on the Internet for five
`months. Nor did Garcia establish a likelihood of success on
`the merits. In particular, the district court found that the
`nature of Garcia’s copyright interest was unclear, and even if
`she could establish such a copyright, she granted the film
`directors an implied license to “distribute her performance as
`a contribution incorporated into the indivisible whole of the
`Film.”
`
`

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`12
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`GARCIA V. GOOGLE
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`A divided panel of our court reversed. More than a year
`and a half after the film was first uploaded, the panel majority
`first issued a secret takedown order, giving Google twenty-
`four hours to remove all copies of Innocence of Muslims from
`YouTube and other Google-controlled platforms. The panel
`embargoed disclosure of the order until it issued its opinion.
`The panel later amended the order to allow YouTube to post
`any version of the film that did not include Garcia’s
`performance.
`
`In its later-issued opinion, the panel majority reversed the
`district court and granted Garcia’s preliminary injunction.
`Garcia v. Google, Inc., 743 F.3d 1258, amended by Garcia v.
`Google, Inc., 766 F.3d 929 (9th Cir. 2014). Despite
`characterizing Garcia’s copyright claim as “fairly debatable,”
`the panel majority nonetheless concluded that Garcia was
`likely to prevail on her copyright claim as to her individual
`performance in Innocence of Muslims. 766 F.3d at 935. In
`contrast to the district court’s factual finding of an implied
`license from Garcia to Youssef, the panel opinion held that
`the license ran in the opposite direction: “Youssef implicitly
`granted [Garcia] a license to perform his screenplay,” and that
`Garcia did not grant Youssef an implied license to
`incorporate her performance into the film. Id. at 935–38.
`Finally, the panel majority held that, because of the death
`threats against her, Garcia had established irreparable harm
`and the equities and public interest favored an injunction. Id.
`at 938–40. The opinion did not address the First Amendment
`consequences of the mandatory takedown injunction, beyond
`stating that the First Amendment does not protect copyright
`infringement.
`
`Judge N.R. Smith dissented. He wrote that Garcia had
`not met the high burden required for a mandatory preliminary
`
`

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`13
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`injunction because she was unlikely to succeed on her
`copyright claim. Id. at 941 (N.R. Smith, J., dissenting).
`Specifically, Garcia was not likely to prove her performance
`was a “work,” nor would she likely meet the copyright
`requirements of authorship and fixation, among other
`shortcomings with her claim. Id. at 946. In sum, “[b]ecause
`the facts and law do not ‘clearly favor’ issuing a preliminary
`injunction to Garcia, the district court did not abuse its
`discretion in denying Garcia’s requested relief.” Id. at 940.
`
`We granted rehearing en banc.3 Garcia v. Google, Inc.,
`771 F.3d 647 (9th Cir. 2014).
`
`ANALYSIS
`
`I. THE DISTRICT COURT’S DECISION
`
`Garcia sued under a slew of legal theories, but she moved
`for a preliminary injunction on just one of them: the
`copyright claim. Hence, copyright is the only basis for the
`appeal. Garcia’s tort allegations—and claimed harm
`resulting from those torts, such as emotional distress—do not
`figure into our analysis.
`
`We begin with the basics.
`
` 3 In connection with en banc proceedings, we received thirteen amicus
`briefs from a broad array of interested parties, including copyright and
`Internet law scholars; content, Internet service, and technology providers;
`actors; media organizations; and nonprofit groups. The briefs were
`helpful to our understanding of the implications of this case from various
`points of view. We thank amici for their participation.
`
`

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`GARCIA V. GOOGLE
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`The district court’s order denying Garcia’s motion for a
`preliminary injunction is reviewed for abuse of discretion.
`Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131
`(9th Cir. 2011). Because our review is deferential, “[w]e will
`not reverse the district court where it ‘got the law right,’ even
`if we ‘would have arrived at a different result,’ so long as the
`district court did not clearly err in its factual determinations.”
`Id. (internal citation omitted).
`
`The Supreme Court has emphasized that preliminary
`injunctions are an “extraordinary remedy never awarded as of
`right.” Winter v. NRDC, 555 U.S. 7, 24 (2008). The district
`court correctly identified that Garcia must satisfy Winter’s
`four-factor test. “A plaintiff seeking a preliminary injunction
`must show that: (1) she is likely to succeed on the merits,
`(2) she is likely to suffer irreparable harm in the absence of
`preliminary relief, (3) the balance of equities tips in her favor,
`and (4) an injunction is in the public interest.” Farris v.
`Seabrook, 677 F.3d 858, 864 (9th Cir. 2012) (citing Winter,
`555 U.S. at 20).
`
`The first factor under Winter is the most important—
`likely success on the merits. Aamer v. Obama, 742 F.3d
`1023, 1038 (D.C. Cir. 2014) (“We begin with the first and
`most important factor: whether petitioners have established
`a likelihood of success on the merits.”). Because it is a
`threshold inquiry, when “a plaintiff has failed to show the
`likelihood of success on the merits, we ‘need not consider the
`remaining three [Winter elements].’” Ass’n des Eleveurs de
`Canards et d’Oies du Quebec v. Harris, 729 F.3d 937, 944
`(9th Cir. 2013) (quoting DISH Network Corp. v. F.C.C.,
`653 F.3d 771, 776–77 (9th Cir. 2011)).
`
`

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`15
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`Garcia’s burden here is doubly demanding: Because
`Garcia seeks a mandatory injunction, she must establish that
`the law and facts clearly favor her position, not simply that
`she is likely to succeed.
`
`Why? Garcia’s requested injunction required Google to
`take affirmative action—to remove (and to keep removing)
`Innocence of Muslims from YouTube and other sites under its
`auspices, whenever and by whomever the film was uploaded.
`This relief is treated as a mandatory injunction, because it
`“orders a responsible party to ‘take action.’” Marlyn
`Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d
`873, 879 (9th Cir. 2009) (citation omitted). As we have
`cautioned, a mandatory injunction “goes well beyond simply
`maintaining the status quo pendente lite [and] is particularly
`disfavored.”4 Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1320
`(9th Cir. 1994) (internal citations omitted)). The “district
`court should deny such relief ‘unless the facts and law clearly
`favor the moving party.’” Id. (quoting Anderson v. United
`States, 612 F.2d 1112, 1114 (9th Cir.1979)). In plain terms,
`mandatory injunctions should not issue in “doubtful cases.”
`Park Vill. Apartment Tenants Ass’n v. Mortimer Howard
`Trust, 636 F.3d 1150, 1160 (9th Cir. 2011).
`
`As we shall see, the district court did not abuse its
`discretion in concluding that Garcia was not likely to succeed
`on her copyright claim—much less that the law and facts
`
` 4 “The status quo means the last, uncontested status which preceded the
`pending controversy.” N.D. ex rel. Parents v. Haw. Dep’t of Educ.,
`600 F.3d 1104, 1112 n.6 (9th Cir. 2010) (internal citation and quotation
`marks omitted). The status quo preceding this litigation was that
`Innocence of Muslims was uploaded to and available for viewing on
`YouTube. The preliminary injunction issued by the panel majority
`disrupted that status quo by ordering Google to remove the film.
`
`

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`GARCIA V. GOOGLE
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`clearly compel suppression of a controversial and politically
`significant film.
`
`A. COPYRIGHT
`
`The central question is whether the law and facts clearly
`favor Garcia’s claim to a copyright in her five-second acting
`performance as it appears in Innocence of Muslims. The
`answer is no. This conclusion does not mean that a plaintiff
`like Garcia is without options or that she couldn’t have sought
`an injunction against different parties or on other legal
`theories, like the right of publicity and defamation.5
`
`Under the Copyright Act, “[c]opyright protection subsists
`. . . in original works of authorship fixed in any tangible
`medium of expression . . . [including] motion pictures.”
`17 U.S.C. § 102(a). That fixation must be done “by or under
`the authority of the author.” 17 U.S.C. § 101. Benchmarked
`against this statutory standard, the law does not clearly favor
`Garcia’s position.
`
` 5 Down the road, Garcia also may have a contract claim. She recalls
`signing some kind of document, though she cannot find a copy. We take
`no position on this claim. Nor do we consider whether Garcia’s
`performance was a work made for hire. See 17 U.S.C. § 101 (defining
`“work made for hire” as work “prepared by an employee within the scope
`of his or her employment” or, where both parties sign a written agreement,
`a work “specially ordered or commissioned . . . as a part of a motion
`picture. . .”); see also § 201(b) (in case of work made for hire, the
`employer or person for whom the work is prepared is the author, subject
`to express agreement otherwise). In district court proceedings, the parties
`disputed whether Garcia signed a work-made-for-hire agreement, and the
`issue is not before us on appeal.
`
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`17
`
`The statute purposefully left “works of authorship”
`undefined to provide for some flexibility. See 1 Nimmer on
`Copyright § 2.03. Nevertheless, several other provisions
`provide useful guidance. An audiovisual work is one that
`consists of “a series of related images which are intrinsically
`intended to be shown” by machines or other electronic
`equipment, plus “accompanying sounds.” 17 U.S.C. § 101.
`In turn, a “motion picture” is an “audiovisual work[]
`consisting of a series of related images which, when shown
`in succession, impart an impression of motion, together with
`accompanying sounds, if any.” Id. These two definitions
`embody the work here: Innocence of Muslims is an
`audiovisual work that is categorized as a motion picture and
`is derivative of the script. Garcia is the author of none of this
`and makes no copyright claim to the film or to the script.6
`Instead, Garcia claims that her five-second performance itself
`merits copyright protection.
`
`In the face of this statutory scheme, it comes as no
`surprise that during this litigation, the Copyright Office found
`that Garcia’s performance was not a copyrightable work
`when it rejected her copyright application. The Copyright
`Office explained that its “longstanding practices do not allow
`a copyright claim by an individual actor or actress in his or
`her performance contained within a motion picture.” Thus,
`“[f]or copyright registration purposes, a motion picture is a
`single integrated work. . . . Assuming Ms. Garcia’s
`contribution was limited to her acting performance, we
`
` 6 In another odd twist, one of Garcia’s primary objections rests on the
`words falsely attributed to her via dubbing. But she cannot claim
`copyright in words she neither authored nor spoke. That leaves Garcia
`with a legitimate and serious beef, though not one that can be vindicated
`under the rubric of copyright.
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`GARCIA V. GOOGLE
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`cannot register her performance apart from the motion
`picture.”
`
`We credit this expert opinion of the Copyright Office—
`the office charged with administration and enforcement of the
`copyright laws and registration.7 See Inhale, Inc. v. Starbuzz
`Tobacco, Inc., 755 F.3d 1038, 1041–42 (9th Cir. 2014). The
`Copyright Office’s well-reasoned position “reflects a ‘body
`of experience and informed judgment to which courts and
`litigants may properly resort for guidance.’” Southco, Inc. v.
`Kanebridge Corp., 390 F.3d 276, 286 n.5 (3d Cir. 2004) (en
`banc) (Alito, J.) (quoting Yates v. Hendon, 541 U.S. 1, 3
`(2004)).8
`
`In analyzing whether the law clearly favors Garcia,
`Aalmuhammed v. Lee, 202 F.3d 1227 (9th Cir. 2000),
`
` 7 As Nimmer notes, when “the question as to copyrightabilty forms the
`core of the dispute between the parties, . . . input from the Copyright
`Office—the governmental agency that possesses special expertise in
`determining the bounds of copyright protection—[can] be of great value.”
`2 Nimmer on Copyright § 7.16[B][3][b][vi].
`
` 8 The dissent’s suggestion that this case is somehow governed by the
`Beijing Treaty on Audiovisual Performances is misplaced. See Dissent at
`38–39. At present, the treaty is aspirational at best. It has yet to take
`effect because only six countries have ratified or acceded to the
`treaty—well short of the thirty it needs to enter into force. See World
`Intellectual Property Organization, Summary of the Beijing Treaty on
`Audiovisual Performances (2012), available at www.wipo.int/treaties/
`en/ip/beijing/summary_beijing.html (last visited May 13, 2015). Although
`the United States signed the treaty in 2012, it has not been ratified by the
`U.S. Senate. Article II, Section 2 of the Constitution requires the
`concurrence of a two-thirds majority of that body. The dissent’s reference
`to the fact sheet from the Patent and Trademark Office, which unlike the
`Copyright Office lacks legal authority to interpret and administer the
`Copyright Act, is similarly inapposite. See Dissent at 39.
`
`

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`19
`
`provides a useful foundation. There, we examined the
`meaning of “work” as the first step in analyzing joint
`authorship of the movie Malcolm X. The Copyright Act
`provides that when a work is “prepared by two or more
`authors with the intention that their contributions be merged
`into inseparable or interdependent parts of a unitary whole,”
`the work becomes a “joint work” with two or more authors.
`17 U.S.C. § 101 (emphasis added). Garcia unequivocally
`disclaims joint authorship of the film.
`
`In Aalmuhammed, we concluded that defining a “work”
`based upon “some minimal level of creativity or originality
`. . . would be too broad and indeterminate to be useful.”9
`202 F.3d at 1233 (internal quotation marks omitted). Our
`animating concern was that this definition of “work” would
`fragment copyright protection for the unitary film Malcolm X
`into many little pieces:
`
`So many people might qualify as an “author”
`if the question were limited to whether they
`made a substantial creative contribution that
`that test would not distinguish one from
`another. Everyone from the producer and
`director
`to casting director, costumer,
`
` 9 Although the ultimate issue in Aalmuhammed pertained to joint
`authorship, the definition of “work” was essential, just as in our case, to
`the analysis. 202 F.3d at 1233–34; see also Richlin v. Metro-Goldwyn-
`Mayer Pictures, Inc., 531 F.3d 962, 968 (9th Cir. 2008) (relying on
`Aalmuhammed in reasoning that to determine authorship, the court must
`first determine the “work” to be examined).
`
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`hairstylist, and “best boy” gets listed in the
`movie credits because all of their creative
`contributions really do matter.
`
`20
`
`Id.
`
`Garcia’s theory of copyright law would result in the legal
`morass we warned against in Aalmuhammed—splintering a
`movie into many different “works,” even in the absence of an
`independent fixation. Simply put, as Google claimed, it
`“make[s] Swiss cheese of copyrights.”
`
`Take, for example, films with a large cast—the proverbial
`“cast of thousands”10—such as Ben-Hur or Lord of the
`Rings.11 The silent epic Ben-Hur advertised a cast of 125,000
`people. In the Lord of the Rings trilogy, 20,000 extras
`tramped around Middle-Earth alongside Frodo Baggins
`(played by Elijah Wood). Treating every acting performance
`as an independent work would not only be a logistical and
`financial nightmare, it would turn cast of thousands into a
`new mantra: copyright of thousands.
`
` 10 The term “cast of thousands” originated as a Hollywood “[a]dvertising
`come-on referring to the crowds of backgrou