The Ninth Circuit, in Garcia v. Google, Inc., 12-57302 (9th Cir. Feb. 26, 2014), ordered that Google remove a fourteen minute trailer for “Innocence of Muslims” from YouTube on February 26, 2014, citing copyright violations.  The court, by a 2-1 vote, reasoned, in an opinion written by Chief Judge Kozinski, that Cindy Lee Garcia had an independent copyright interest in her performance, and thus concluded that she demonstrated a likelihood of success on the merits, reversing the district court’s denial of Garcia’s motion.  Google, in another court filing on February 28, 2014, which requested the Ninth Circuit to review the issue, called the February 26 decision “unprecedented” and “sweeping.”  The Ninth Circuit denied the request and ordered Google to remove the video immediately.    However, on March 6, 2014, the Ninth Circuit, pursuant to sua sponte request, issued an Order requesting briefs from the parties on whether the matter should be reheard en banc.  The briefs are due by March 12, 2014.

Google released the following statement following the Ninth Circuit’s February 28 ruling:

Today the Ninth Circuit Court of Appeals ruled that an actress in the Innocence of Muslims trailer may have a copyright claim over her five-second appearance in the video. As a result the court ordered Google to remove the video from our services. We strongly disagree with this ruling and will fight it.

The trailer for “Innocence of Muslims” was posted online in September 2012. Garcia appeared for approximately five seconds of the thirteen minute video. The video caused violent protests in Egypt, Libya, and other countries around the world.  The release also coincided with an attack on the U.S. Embassy in Benghazi, Libya, in which four Americans, including the U.S. ambassador to Libya, Christopher Stevens, were killed.  The video, which has been called “anti-Islamic” and “inflammatory”, depicts the Muslim prophet Mohammed as a fool and a sexual deviant.

A number of commentators have criticized the Ninth Circuit’s decision.  James Grimmelmann, a law professor at the University of Maryland, Baltimore, posted his reaction to Twitter (@grimmelm), stating:

A performance is not a work. It can provide expression in a work, but IT IS NOT A WORK.

The only thing worse than the Innocence of Muslims copyright decision is Innocence of Muslims itself. It’s just astonishingly bad.

Grimmelmann said that the Ninth Circuit’s recognition of Garcia’s copyright calls into question bedrock copyright law. Grimmelmann believes that since Garcia is not the author of the work, there no copyright interest in her five-second appearance.  Google said it will ask the U.S. Supreme Court to review the Ninth Circuit’s decision.