When Should Actors Get Copyrights in their Performances?

In Garcia v. Google, the en banc Ninth Circuit ruled that actors can basically never obtain a copyright in their performances. I was one of, say, ten people troubled by this decision. My IP academic colleagues will surely recall (too) long debates on the listserv on this issue. It turns out that another of the ten is Justin Hughes (Loyola LA), who has now written an article exploring when and why actors might reasonably claim copyright in a performance. The article, called Actors as Authors in American Copyright Law, is on SSRN and is forthcoming in the Connecticut Law Review. The abstract is here:

Among the different kinds of works eligible for copyright, audiovisual works are arguably the most complex, often involving scores of contributors – screenwriters, directors, actors, cinematographers, producers, set designers, costume designers, lighting technicians, etc. Some countries expressly recognize which categories of these contributors are entitled to legal protection, whether copyright, ‘neighboring rights,’ or statutory remuneration. But American copyright law does not. Given that the complex relationship among these creative contributors is usually governed by contract, there is – for such a large economic sector – relatively little case law on issues of authorship in audiovisual works. This is especially true on the question of dramatic performers as authors of audiovisual works.

This Article provides the first in-depth exploration of whether, when, and how actors are authors under American copyright law. After describing how case law, government views, and scholarly commentary support the conclusion that actors are authors, the Article turns to the strange saga of the Ninth Circuit’s 2015 en banc Garcia v. Google decision – a decision more about fraud and fatwas than clear conclusions on how copyright law applies to acting. The Article then uses some simple thought experiments to establish how dramatic performers generally meet both the Constitutional and statutory standard for “authorship.” Finally, the Article reviews the various filters that prevent actors-as-authors legal struggles and how, when all else fails, we can consider actors as joint authors of the audiovisual works embodying their dramatic performances.

The article presents a detailed and nuanced view of what it means to be an author, as well as a good discussion of the development of the law in this area. As the abstract alludes to, it turns out that much of our view of actor protections is based on how things have been done and expediency (e.g. work made for hire) rather than a detailed examination of authorship in film.

For example, it has always been unclear to me why we protect a musician's performance of pre-scripted music in a sound recording, but not an actor's performance of a pre-scripted movie in an audiovisual work. The statute allows for both protections, and the primary reason seems to be that we don't think it's right.

Similarly, joint authorship is very strange. In Aalmuhammed v. Lee, the Ninth Circuit ruled that, despite the contribution of several elements and several scenes, one must be either a full joint author or nothing. There is no in-between. Like Garcia v. Google, this appears to be for expedience (and Hughes examines several other reasons), as well as a view that the only "work" can be the final work, and not each scene before it is pieced together, a legal fiction in the modern era of copyrightability in unpublished works.

This article explores much of the thinking I had at the time of Garcia v. Google, so those who favored that ruling will likely think it is as crazy as they thought I was. However, I think the article is still worth a read, if only to pinpoint where you think it goes astray, if it does.