A panel of eleven Ninth Circuit federal judges heard oral arguments yesterday in Garcia v. Google, a copyright case arising from the notorious "Innocence of Muslims" video that was associated with violent protests around the world. The appellant, Cindy Lee Garcia, argues that she holds a copyright in her five-second performance in the video (a performance she says was tricked into giving), and is trying to use that claim to get the video pulled off the internet. To the shock of many, last February two Ninth Circuit judges agreed she might have a claim and ordered Google to remove the video from YouTube and prevent future uploads. Yesterday’s hearing revisited the facts and law that led to that decision.

The judges grilled Garcia’s counsel on the question of copyrightability, challenging the notion that Garcia’s five-second performance could be a copyrightable work. “Could any person who appeared in the battle scenes of the Lord of the Rings claim rights in the work?” asked Judge Margaret McKeown. And, she wondered, wasn’t this case really an issue of possible fraud, not copyright infringement?

Judge Alex Kozinski, however, suggested that the Beijing Treaty on Audiovisual Performances, which recognizes certain performance rights for actors, requires courts to recognize Ms. Garcia’s claimed copyright interest. However, the treaty is not yet in force, in the U.S. or anywhere else. In any event, as Google counsel explained, it is not clear that the treaty would create a copyright interest in a five-second performance that was part of a much longer work. Judge Kozinski also compared Ms. Garcia’s claim to a 1977 case involving a short performance by a “human cannonball.”

Google’s counsel stressed the burden on service providers and video-makers of recognizing a copyright interest in this case. If every person captured doing something creative on film could claim a copyright in it, service providers could find themselves flooded with takedown notices under the DMCA, resulting in the silencing of all kinds of lawful speech.

Google’s counsel also attempted to keep the court focused on the preliminary injunction standard, which requires courts to deny the broad injunctive relief Garcia sought if the law does not “clearly favor” the legal claim. In this case, the overwhelming weight of case law (including a recent Ninth Circuit opinion) and even the Copyright Office clearly disfavors Garcia’s theory. In our view, that, by itself, should have resolved the question.

Monday's hearing follows months of controversy. EFF and many other public interest groups have filed friend-of-the-court briefs in the case, noting (among other concerns) that actors generally do not have a copyright in their performances and that in any case neither Garcia nor the earlier opinion had justified a prior restraint of speech. We hope the Ninth Circuit quickly comes to the same conclusion and lifts the injunction.