University of Connecticut OpenCommons@UConn Connecticut Law Review School of Law 2019 Actors as Authors in American Copyright Law Justin Hughes Follow this and additional works at: https://opencommons.uconn.edu/law_review Recommended Citation Hughes, Justin, "Actors as Authors in American Copyright Law" (2019). Connecticut Law Review. 409. https://opencommons.uconn.edu/law_review/409 CONNECTICUT LAW REVIEW VOLUME 51 FEBRUARY 2019 NUMBER 1 Article Actors as Authors in American Copyright Law JUSTIN HUGHES Among the many kinds of works eligible for copyright protection, audiovisual works are arguably the most complex, involving 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, but American copyright law does not. Because the complex relationships among these creative professionals are usually governed by contract, there is 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 analyzes the strange—and strangely inconclusive—2015 Garcia v. Google litigation. 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. 1 ARTICLE CONTENTS INTRODUCTION ........................................................................................ 3 I. THE INTERNATIONAL CONTEXT FOR ANALYSIS OF AMERICAN COPYRIGHT LAW .............................................................................. 4 A. THE OPEN-ENDED FRAMEWORK OF THE BERNE CONVENTION ........... 4 B. FROM THE 1961 ROME CONVENTION TO THE 2012 BEIJING TREATY .. 7 II. AMBIGUITY IN AMERICAN COPYRIGHT LAW .............................. 15 A. THE COPYRIGHT OFFICE COMPENDIUM’S VIEW .............................. 15 B. VIEWS FROM THE BENCH ............................................................... 16 C. THE STRANGE AND STRAINED SAGA OF GARCIA V. GOOGLE ........... 22 D. VIEWS FROM THE IVORY TOWER .................................................... 33 III. A STRAIGHTFORWARD ORIGINALITY ANALYSIS ...................... 35 A. SOME THOUGHT EXPERIMENTS ...................................................... 36 B. VIEWS WITHIN THE ACTING COMMUNITY....................................... 41 IV. THE NON-PROBLEMS OF JOINT AUTHORSHIP AND ‘CAST OF THOUSANDS’.................................................................................... 50 A. THE FILTERS THAT PREVENT BOTH COPYRIGHT OF THOUSANDS AND THOUSANDS OF JOINT AUTHORS .................................................... 51 B. THE RARE, BUT UNFRIGHTENING PROSPECT OF AN ACTOR AS A JOINT AUTHOR ........................................................................................ 58 CONCLUSION .......................................................................................... 68 Actors as Authors in American Copyright Law JUSTIN HUGHES * INTRODUCTION There are many familiar, deep-seated disagreements in intellectual property law—for example, varied points of view on exhaustion of rights, the scope of patentable subject matter in the United States, or whether the right of distribution in American copyright law encompasses “making available.”1 But occasionally, there are places in the intellectual property landscape that hold unexpected—and unexplored—uncertainty. The protection of dramatic performances under American copyright law seems to be one of those areas. What one commentator noted in 2001 remains true today: “There is little case law or statutory authority as to the position of performers as authors of an audiovisual work under U.S. law.”2 The question is simple: under American copyright law can an actor be an author of the audiovisual works in which he or she performs? Reviewing the few points of law and commentary on the question and placing American copyright in the larger framework of international intellectual property norms, this Article reasons that actors must be “authors” under American copyright law—any other conclusion would be counter to basic principles of American copyright law. Part I of this Article reviews the framework of international legal norms in which American copyright law exists, setting out how actors may be “authors” as international copyright law understands that concept. Part II then takes up the glimmers of law and commentary that address whether and how dramatic performances attract copyright protection under American copyright law. This evidence has been limited, but has consistently pointed toward the conclusion that actors can be authors under American copyright law. Part II also explores what happened on the actors-as-authors question * Honorable William Matthew Byrne, Jr. Professor of Law, Loyola Law School, Loyola Marymount University. My thanks to Robert Brauneis, Jay Dougherty, Kevin Collins, Jane Ginsburg, Paul Goldstein, Jukka Liedes, Jessica Litman, Shira Perlmutter, and Robert Stoll for their helpful comments. Thanks to William Bowen and Claudia Herrera for research assistance. The remaining errors are the exclusive intellectual property of the author. Copyright © 2018 by the author. Permission is hereby granted for noncommercial reproduction of this Article in whole or in part for educational or research purposes, including the making of multiple copies for classroom use, subject only to the condition that the name of the author, a complete citation to Connecticut Law Review, and this copyright notice and grant of permission be included in the copies. 1 U.S. COPYRIGHT OFF., THE MAKING AVAILABLE RIGHT IN THE UNITED STATES 1 (2016). 2 F. Jay Dougherty, Not A Spike Lee Joint? Issues in the Authorship of Motion Pictures Under U.S. Copyright Law, 49 UCLA L. REV. 225, 300 (2001). 4 CONNECTICUT LAW REVIEW [Vol. 51:1 in the 2015 Garcia v. Google decision, a litigation tale more of fraud and fatwas than clear conclusions on copyright law. With Garcia v. Google properly understood, Part III returns to the basic question and explores whether and how dramatic performances attract copyright protection through hypotheticals and views of the acting community. After a brief review of the legal and customary filters that keep parties from litigating the actor-as-author question, Part IV offers a discussion of joint authorship doctrine as it should apply to actors in audiovisual works. I. THE INTERNATIONAL CONTEXT FOR ANALYSIS OF AMERICAN COPYRIGHT LAW American copyright law sits in the broader context of the international copyright system and the international legal norms in intellectual property to which the United States has agreed to be bound. Among the many international treaties in intellectual property, three pertain to the rights of dramatic performers in their performances. A. The Open-Ended Framework of the Berne Convention The Berne Convention for the Protection of Literary and Artistic Works3 has been the central pillar of the international copyright system since at least 1988, when the United States finally ratified the Convention and effectively ended competition between Berne and the Universal Copyright Convention administered by UNESCO.4 Films were first included in Berne during the 1908 Berlin revision of the Convention, when it was agreed that cinematographic works were to be treated as “literary or artistic works when by the arrangement of the stage effects or by the combination of the incidents represented, the author shall have given to the work a personal and original character.”5 The position of audiovisual works in the Berne Convention was strengthened in 1967 with the addition of Article 14bis which provides that: (1) Without prejudice to the copyright in any work which may have been adapted or reproduced, a cinematographic work 3 Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, as revised at Paris on July 24, 1971 and amended in 1979, S. TREATY DOC. No. 99-27 (1986), 1161 U.N.T.S. 30 [hereinafter Berne Convention]. 4 For background, see Leonard D. Duboff, et al., Out of UNESCO and into Berne: Has United States Participation in the Berne Convention for International Copyright Protection Become Essential?, 4 CARDOZO ARTS & ENT. L.J. 203, 213 (1985). See also Orrin G. Hatch, Better Late than Never: Implementation of the 1886 Berne Convention, 22 CORNELL INT’L L.J. 171, 176 (1989). 5 Convention Creating an International Union for the Protection of Literary and Artistic Works, signed at Berlin, November 13, 1908, Art. 14, as reprinted in Library of Congress, Report of the Delegate of the United States to the International Convention for the Revision of the Berne Copyright Convention Held at Berlin, Germany, October 14 to November 14, 1908, Copyright Office Bulletin, No. 13 at 21 (1908) [hereinafter 1908 BERNE REVISION OF BERNE]. 2019] ACTORS AS AUTHORS IN AMERICAN COPYRIGHT LAW 5 shall be protected as an original work. The owner of copyright in a cinematographic