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).
