The Protection of Performers Under U.S. Law in Comparative Perspective

IP Theory Volume 5 | Issue 1 Article 8 Spring 2015 The Protection of Performers Under U.S. Law in Comparative Perspective Daniel Gervais Vanderbilt University Law School, Follow this and additional works at: http://www.repository.law.indiana.edu/ipt Part of the Intellectual Property Law Commons, and the Science and Technology Law Commons Recommended Citation Gervais, Daniel (2015) "The Protection of Performers Under U.S. Law in Comparative Perspective," IP Theory: Vol. 5: Iss. 1, Article 8. Available at: http://www.repository.law.indiana.edu/ipt/vol5/iss1/8 This Article is brought to you for free and open access by the Law School Journals at Digital Repository @ Maurer Law. It has been accepted for inclusion in IP Theory by an authorized administrator of Digital Repository @ Maurer Law. For more information, please contact . IPtheory Volume 5: Issue 1 The Protection of Performers under U.S. Law in Comparative Perspective Daniel Gervais, Ph.D.* I The majority opinion of the Ninth Circuit panel in Garcia v. Google, Inc.1 stands for the proposition that an actor has copyright in her performance. The case was described as horrific and generated a significant amount of traffic on LISTSERVs and social media. 2 In the opinion, Chief Judge Kozinski made three key points. First, that there was originality in the performance, as required under Feist3. The Feist court found that creative choices were necessary to generate sufficient originality to warrant copyright protection. Using Feist as backdrop, the Garcia majority found that: An actor’s performance, when fixed, is copyrightable if it evinces “some minimal degree of creativity . . . ‘no matter how crude, humble or obvious’ it might be.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., . . . . That is true whether the actor speaks, is dubbed over or, like Buster Keaton, performs without any words at all. 4 Second, Chief Justice Kozinski found that a performance could be a derivative work of the script, noting that an unauthorized derivative received no copyright protection.5 Third, he dismissed what might seem like a Coasean argument on the impossibly high * Professor of Law, Vanderbilt University Law School; Director, Vanderbilt University Intellectual Property Program. 1. 743 F.3d 1258 (9th Cir. 2014). An en banc review was pending as of this writing. 2. Mike Masnick, Horrific Appeals Court Ruling Says Actress Has Copyright Interest in ‘Innocence Of Muslims,’ Orders YouTube to Delete Every Copy, T D , Feb. 26, 2014, available at https://www.techdirt.com/articles/20140226/12103626359/horrific-appeals-court-ruling-saysactress-has-copyright-interest-innocence-muslims-orders-youtube-to-delete-every-copy.shtml. 3. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991). For a discussion see Daniel J. Gervais, Feist Goes Global: A Comparative Analysis of the Notion of Originality in Copyright Law, 49:4 J. C . S ’ O T U.S.A. 949, 951-54 (2001-2002). 4. Garcia, 743 F.3d at 1263 (first omission in original and second omission added). 5. Id. at 1264 (“Where, as here, an actor’s performance is based on a script, the performance is likewise derivative of the script, such that the actor might be considered to have infringed the screenwriter’s copyright.”). 37 116 transaction costs if a thicket of copyrights were recognized in film because: As the above discussion makes clear, any analysis of the rights that might attach to the numerous creative contributions that make up a film can quickly become entangled in an impenetrable thicket of copyright. But it rarely comes to that because copyright interests in the vast majority of films are covered by contract, the work for hire doctrine or implied licenses.6 The dissent also makes interesting points, in particular in drawing a clear distinction between a performance and a work in a copyright context—a distinction which, the dissent opines, is solidly anchored in the text of the statute: Section 101 of the Act is also instructive, because it differentiates a work from the performance of it. It defines “perform a ‘work’” to mean “to recite, render, play, dance or act it.” 17 U.S.C. § 101 (emphasis added). Given this provision, it is difficult to understand how Congress intended to extend copyright protection to this acting performance. . . . An acting performance resembles the “procedure” or “process” by which “an original work” is performed. . . . Therefore, “[i]n no case does copyright protection” extend to an acting performance, “regardless of the form in which it is described, illustrated, or embodied in” the original work.7 Wherever this case ends up in the courts, it raises fundamental questions about US law as it applies to performed works. This Essay uses a comparative lens to shed some hopefully useful light on the debate. The Essay proceeds essentially in two parts. First, the Essay explores and critiques the international protection of performers’ rights using both history and policy as focal points. The following part describes the protection of performers and other owners of “related rights” in US law and explains the differences that adopting a related rights regime would bring about in the United States. II. T I P P A. Are Performances Works? The dissent in Garcia is correct of course in pointing out that the Copyright Act draws a distinction between works and performances.8 That is not dispositive, however. It is not because a performance is a performance that it then cannot also be a work. 6. Id. at 1265. 7. Id. at 1270 (Smith, J., dissenting) (emphasis in original) (omissions added). 8. See 17 U.S.C. § 101 (“work” and “perform”). The statute uses the term “performance” elsewhere, such as in 17 U.S.C. § 110, and apparently to mean something other than “work” because it refers to “performance(s) of a work.” 117 IP THEORY Volume 5: Issue 1 Actors can (and usually do) make what one might describe in everyday language as creative contributions to audiovisual productions such as a motion pictures.9 This might lead to the suggestion that actors should be protected against some unauthorized uses of their creative contributions. In copyright terms, actors arguably make “creative choices,” the common test for originality in many countries and the Berne Convention, though there are variations in its application.10 A similar analysis applies to music. Is Yehudi Menuhin’s version of J.S. Bach’s sonatas or Brahms’ violin concerto in D minor op. 77 not “creative”? Does it not exhibit “creative choices”? To quote Eric Taver: It is of course in the 1949 recording with the Lucerne Festival Orchestra [of the above-mentioned Brahms Concerto] that one must listen to Menuhin throw himself at the notes while taking every imaginable risk. It is here that the Menuhin we will later come to know shows his colors, the Menuhin whose left hand climbs into the stratosphere while pulling at each note, catching it at the end of a finger and vibrating it to limit the risk of going astray (...truncated)