Never say an opinion (previously discussed here) can’t get worse. The amended opinion in Garcia v. Google manages that feat:
Nothing we say today precludes the district court from concluding that Garcia doesn’t have a copyrightable interest, or that Google prevails on any of its defenses. We note, for example, that after we first issued our opinion, the United States Copyright Office sent Garcia a letter denying her request to register a copyright in her performance. Because this is not an appeal of the denial of registration, the Copyright Office’s refusal to register doesn’t “preclude a determination” that Garcia’s performance “is indeed copyrightable.” OddzOn Prods., Inc. v. Oman, 924 F.2d 346, 347 (D.C. Cir. 1991). But the district court may still defer to the Copyright Office’s reasoning, to the extent it is persuasive. See Inhale, Inc. v. Starbuzz Tobacco, Inc., 739 F.3d 446, 448–49 (9th Cir. 2014).
Then why in blazes is she likely to succeed on the merits of her claim that her performance is copyrightable and owned by her? (Implicitly, the majority must be saying that the Copyright Office is legally wrong in its analysis of the separate copyrightability of a performance fixed in a larger AV work, but it doesn’t address the Copyright Office’s reasoning on that point, presumably considering it pre-addressed in its original analysis. But if individual performances are copyrightable as a matter of law, on what basis could the district court defer to the Copyright Office’s reasoning to the contrary, especially in a non-rulemaking context?) (Oh and also, that opening clause “Because this is not an appeal …” is completely wrong/unnecessary, according to the cited case, but then why would this opinion be correct in a detail of copyright law when it can’t get the big picture right?) The dissent nails it:
[T]he amended portions of the majority opinion only confirm that the law and facts do not clearly favor Garcia: “Nothing we say today precludes the district court from concluding that Garcia doesn’t have a copyrightable interest, or that Google prevails on any of its defenses.” Where the law and facts must clearly favor Garcia in order for her to prevail, the majority’s equivocation cements its error.