HOWDY NEIGHBOR HOWDY! – The Case For Housing Performers’ Rights Alongside Copyright in the USA

Howdy Neighbor Howdy![1]

The Case For Housing Performers’ Rights Alongside Copyright

 

The USA is a leader and cultural giant in the world of entertainment.  Movies, television programs, broadcasts and music produced in the USA are enjoyed and consumed around the world.  American stars of screen, stage and recording studio are international household names.  A global audience annually follows award shows such as the Oscars, Grammys, Emmys and Golden Globes, where performers are acknowledged and honoured for superb achievements.  Performances by US artists are ubiquitous, on screens and speakers big and small, everywhere, every day.

 

The US media and entertainment industry, representing a third of the global industry, is giant too.  It is the largest media and entertainment market in the world, expected to reach a value of $771 billion by 2019[2].

 

There can be no doubt that the success of this industry[3] is driven in large part by the talent, skill, effort and originality of the many performers (actors, singers, musicians and dancers) whose performances stand at the heart of entertainment products such as motion pictures, television programs, broadcasts and music recordings.  What then should be the reward for those performances, and the performers’ stake of equity in those entertainment products that they give life to?

 

Does a performer render a mere skilled service for his audience, impresario or employer, for which he may be paid a fee or salary?  Is the performance akin to that of other skilled service providers such as a hairstylist who produces a great haircut, or a chef who presents a delectable plate of food?

 

As the law stands in the USA there is neither copyright, nor neighbouring performers’ rights, of which performers can avail themselves to protect, and to assert equity in, their original performances. Such a state of play does not ‘promote useful Arts’ as enjoined by section 8(1)(8) of the US Constitution.  The products of the US entertainment and media industry are most useful and economically beneficial arts.  Performers are artists, capable of stunning creative originality.  Such creative performances are in the public interest, and ‘creative work is to be encouraged and rewarded’.[4]

 

Performers should acquire a protectable legal interest, and establish ongoing equity, in their creative performances.  But what is the nature of such intellectual property rights?  Copyright, which protects original artistic expressions, is a familiar vehicle, and in fact the only means of ‘transport’ available to performers in the USA at present.  However, copyright may not be the appropriate bundle of rights under which to provide for performances.

 

Rather than as the subject matter of copyright, performances are dealt with in copyright statutes as acts which owners of copyright have the exclusive right to do.  Owners of copyright in literary, dramatic, choreographic and musical works have the right to do or authorise the performance of those works.   The distinction between a performance and a work should not be blurred.  Copyright is a right which is dependent on the tangibility of the artistic expression for its existence in the first place.

 

Performances exist separate from fixation.   Fixation is a performer’s right, not the sine qua non of the right.  ‘The principal difference is that a live performance is not infringed by its being copied or imitated.  There is therefore no copy right…the law recognises a performance as an act, not a thing of property, and copying the act itself (like an idea) is not an infringement.’[5]

 

Neighbor Canada does provide for copyright protection in ‘performer’s performances’; albeit that performances are not deemed ‘works’ but ‘other subject-matter’, and that there is no requirement that a performance be ‘original’[6].  This demonstrates that performances fit uneasily into the scheme of copyright.   Performances are not by their nature capable of being the subject matter of copyright.

 

The Canadian approach has apparently sat easily in Canadian copyright practice so far[7].   But the nature of the right accorded to performers’ performances in Canada (including the right to fix the performance in the first place) more properly resembles performers’ rights, a category of intellectual property rights which are aligned to copyright but which constitute their own category or sub-species.

 

The case of Google v Garcia[8], which came before the US Court of Appeals, Ninth Circuit, and which was finally adjudicated by that circuit en banc in 2015, has since established that US copyright law does not provide protection for performances.  The question was whether an actress could claim copyright in her acting performance as filmed for inclusion in a motion picture.  Her short, recorded performance had been abused by the producer and put to different purposes than those she had in mind when she had acted it.  It ended up as part of an anti-Islamic film which drew outrage from Muslims around the world, and brought a life-threatening fatwah down upon the actress’s head.   If her performance by itself, as captured on film, could find a claim to copyright protection under the US Copyright Act, she could vindicate and excise that performance from the offensive film.

 

In both of the Ninth Circuit’s opinions (the first opinion by Judge Kozinski and the en banc opinion by Judge McKeown), much emphasis was placed on policy considerations which weighed on the Court’s reasoning – namely, how granting copyright protection to an actor’s performance in a movie would splinter or ‘fragment copyright for the unitary film…into many little pieces’[9], create a ‘legal morass’[10], ‘make Swiss cheese of copyrights’[11], create ‘copyright of thousands’[12], lead to entanglement in ‘an impenetrable thicket of copyright’[13], and so on; together with the counter argument that the work for hire doctrine and a sophisticated system of work for hire contracting that operates in the entertainment industry might enable the industry to cope with such cheesy challenges.

 

 But the issue of whether copyright can exist in performances or not, should not be mired in considerations of ownership, policy or practicality. As copyright was the only right available for the Garcia judges and lawyers on which to try and base relief for a serious (and life-threatening) breach, the court was compelled to try and apply it to her acting performance.  This lead to a messy and unsatisfying result.

 

Copyright is a creature of statute. The question simply is whether a performance by its nature is a proper subject for copyright at all?  If not, then priority consideration must be given to both protecting and rewarding performers by legislating a category of separate rights which neighbour copyright to bridge the gap.

 

As there has been reluctance on the part of the USA to accept that performers may not be best catered for (or catered for at all) under US copyright law, an analysis of copyright’s non-suitability to performances follows.

 

For copyright to subsist in a performance it must be an:

  1. Original
  2. Work
  3. Of Authorship
  4. which is Fixed
  5. in any Tangible Medium
  6. from which it can be Perceived, Reproduced or Communicated.

 

An argument that performances are copyrightable works falls short primarily on the meaning of ‘works’ and on the requirement of fixation.

 

Performances are not Works

 

There is no numerus clausus of original works of authorship which may qualify for copyright protection under USA copyright law.   The category of works is left open-ended.  The Copyright Act does not exclude the possibility that a performance may be a work.

 

In the USA works of authorship include ‘dramatic works’, and separately also ‘pantomimes and choreographic works’[14].  These types of works are not defined in the Act. The lack of enumeration of all qualifying works, and the lack of definition of these specific works, leave open the possibility that the performances of actors, singers, musicians, mimes or dancers may qualify for stand-alone copyright protection. It could be viewed as encouraging that pantomimes, for one, arguably refer to performances.  If so, then why exclude other performances?

 

Authors Lemley, Menell and Merges[15]  write that ‘copyright in (pantomime and choreographic) works inheres either in notation – such as Labanotation, a system of symbols for representing movements that can be related to a musical score – or (more commonly) in a film recording’, but they do qualify that protection for dramatic, pantomime, and choreographic works ‘each extends to written or otherwise fixed instructions for performing a work of art’.  That they are fixed instructions to enable a dramatic, dance or movement performance is evident also from copyright’s most basic right, namely the right to reproduce.  These three works are a means to produce a dramatic or dance performance.  They are not particular performances themselves.

 

Copyright statutes in Commonwealth countries such as the United Kingdom[16] and South Africa[17] (by contrast) do have a fixed number of works that may qualify for copyright protection.  There can accordingly be no judicial additions to the protectable works, other than those expressed in the Acts.  Searching for corresponding meanings in the UK and South African copyright statutes are enlightening to a degree as US copyright law and its terms have roots in UK copyright tradition (as does South Africa’s law).

 

The same works are encountered in the UK and South African statutes.  In the UK one of the enumerated categories of qualifying works is ‘dramatic works’ and such works in turn include ‘a work of dance or mime’[18].   In South Africa, dramatic works are not their own category of works, but are included under ‘literary works’, alongside ‘stage directions, cinematograph film scenarios and broadcasting scripts’.  In the South African statute ‘dramatic work’ has an express definition which includes ‘choreographic work or entertainment in dumb show, if reduced to the material form in which the work or entertainment is to be presented, but does not include a cinematograph film as distinct from a scenario or script for a cinematograph film’.  This definition of the same terms as found in the US statute is helpful to indicate that dramatic works, choreographic works and ‘entertainment in dumb show’ (pantomime) are directions, scenarios or scripts from which a performance is to be presented.

 

But a more textual analysis is required than only to surmise from the expressed list of works.

 

Section 106(4) of the US Act provides that, in the case of pantomimes, dramatic, musical and choreographic works, copyright gives the exclusive right ‘to perform the copyrighted work publicly’.  These works and their performance are viewed separately.  A performance is a right of copyright, rather than the subject matter of it.

 

The Act is familiar with the concept of performance, and expressly defines it (as the verb ‘to perform’[19]) meaning ‘to recite, render, play, dance, or act a work’.  The Act omits to include ‘performance’ in the category of works of authorship, although it is clear on the meaning of performance and ‘to perform’, and explicitly defines the latter.  That definition also draws a distinction between the work and the performance of it.

 

If a performance was copyrightable, what would be the exclusive right of the performance under section 106?  The right to perform the performance?  A performance is unique not only to the individual performer, but unique from that performer’s one performance to the next.  A performance is fleeting and ephemeral.  In contrast, a work is capable of exact replica and it is the subject to be performed.

 

Performances are not Fixed

 

For copyright to subsist in a work at all, first it must be ‘fixed in any tangible medium of expression’[20].  Other than the nature of works in the Act, the requirement of fixation is determinative.

 

The Supreme Court found in Goldstein v California[21] that fixation is a constitutional requirement because of the word ‘Writings’[22] which was interpreted to mean ‘physical renderings of expression’.

 

‘Fixed’ is defined expressly in the Act[23].  The salient point is that a work must be fixed in a tangible medium of expression ‘by or under the authority of the author’.  It has to be embodied in a copy or phonorecord from whence it may be ‘perceived, reproduced, or otherwise communicated for a period of more than a transitory duration’.

 

How do you fix the performance of a singer, actor or dancer?  The only way would be to record it in a motion picture or sound recording.  When you fix the performance, you then create a different, specific work acknowledged in the Act, namely a motion picture, audiovisual work or sound recording.  A performance is by its nature unfixed.  A performance that is fixed does not stand alone in copyright outside of either a motion picture or sound recording.  It is that work.

 

In the brief of the Amici Curiae of the Screen Actors Guild – American Federation of Television and Radio Artists and other actors’ associations around the world, as filed in the Garcia case in support of the plaintiff, counsel argued that:

 

‘An actor’s performance can also be considered a pantomime or a dramatic work, protectable separate from the medium in which it is fixed (i.e. a motion picture).’

 

Counsel assumed that it might be possible to derive two copyrights from one fixation.  That can never be the case.  The fixation creates a copyright.  That fixation will be either a film or a sound recording.  A performance and a motion picture cannot each claim existence from the same act of fixation.  Copyright does not recognise a Siamese twin.  Contrast this to the example of a movie script and the motion picture made of it.  Here we have two separate copyrights.  The script copyright (literary or dramatic work) came into existence through means of its own fixation (writing), where after the motion picture derived from the script came into existence through its own fixation (filming, recording).  There are two works created by two separate fixations.

 

When talking about performances as potentially copyrightable works, we are necessarily talking only about recorded performances (audiovisually).  We thus acknowledge that even the brilliant expressions of creativity and originality that may go into an unrecorded performance do not enjoy copyright protection at all.  A performance mero motu is thus not copyrightable at all.   And a recorded performance then?  Why and how is that different from the motion picture or sound recording that records it?

 

Judge Kozinski in dissent in Google v Garcia insists that, at the moment of fixation, the author ‘instantly and automatically acquire a copyright interest in it (the performance)’.   Although he refers to this as ‘Copyright 101’, he imagines through this simplification the creation of potentially two distinct copyrights by means of one act of fixation, namely one in a performance and one in a motion picture.  The fixation is the creation of the copyright.  There is no copyright before it.  Performance exists separate from fixation.  The fixation of the performance results in a motion picture or a sound recording, which are the works.  The performance remains fleeting.  Outside of the motion picture or the sound recording the performance is not capable of being perceived, reproduced or otherwise communicated for a period of more than transitory duration.

 

There is perhaps an analogy to be drawn from the case of Kelley v. Chicago Park Dist.[24] where the question at stake was fixation in context of a landscaped garden’s eligibility for copyright protection, as a garden.  The court held that ‘A garden is simply too changeable to satisfy the primary purpose of fixation; its appearance is too inherently variable to supply a baseline for determining questions of copyright creation and infringement’.  A garden was deemed not stable or permanent enough to be ‘fixed’.  Although a performance is rendered by a human with intellect and not by wild nature, the basic problem as to fixation is the same.  You can take a photograph of the garden, and there would be copyright in the photograph.  But you cannot claim copyright in the garden itself through means of the photograph.  You can film a performance, but you cannot claim copyright in the performance itself as something separate from the film.   A performance is also natural, rendered by a human in a particular form, unique at a particular time, which can never be reproduced (even by that human) to be the 100% copy of the original performance.  The right of reproduction (at the core of any copyright) is the ability to reproduce the original 100%.  You cannot do that with a performance.  You can do that with a motion picture or sound recording.

 

The case of Conrad v. AM Community Credit Union [25] was correctly decided under US copyright law as it stands.  In that case, the performance of a singing telegram by a (rather litigious) performer, who called herself ‘the banana lady’, was recorded by audience members and uploaded on social media and the internet. She had authorised audience members to record video of her performance for their personal use only, but disputed that the use made of the recordings in uploading them were personal.  Although an argument could be made that she had in fact authorised the recordings (just not the full use as was made of them), the court found that her performance was unfixed, and that, to claim copyright, she would either have had to record the performance or to have created a written dance notation.  The written dance notation of course harks back to the meaning of choreographic work and pantomime as was discussed above, and the recording points to the Siamese twin problem, namely that one fixation cannot create two copyrights (one in the performance and one in the recording).

 

The court found that the ‘performance itself was not copyrighted or even copyrightable’.  If this seems harsh, it is.  But it is not harsh due to a shortcoming in copyright law.  It is because the USA does not provide to performers the rights to control the fixation and dissemination of their performances.

 

In the article ‘Actor or Schmuck:  Who Owns an Actor’s Performance?’[26] the author concludes that:

 

 ‘It is uncertain who owns the rights to an actor’s performance as shown in the decisions within our federal circuit courts.  An actor’s performance is an individual’s original work and their interpretation of the role should be viewed as authorship and creativity by our federal laws…the Copyright Act should therefore offer some sort of protection.’

 

The author fails to consider those rights adjacent to copyright which clearly provide for economic as well as moral rights of performers in their performances.  The logical direction in which to take actor’s and performers’ rights is toward performers’ rights per se.  These rights are not copyright, but neighbours of copyright.  Legislative amendment should move toward them.  Not just for the sake of deserving performers and the arts, but also to comply with the USA’s international obligations under two WIPO treaties.

 

These neighbouring (or related) rights are addressed by the World Intellectual Property Organisation (WIPO) in three international treaties administered by them, namely:

 

  • Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (1961)[27] which secures that performers are protected against acts to which they have not consented, such as the broadcasting and communication to the public of a live performance, the fixation of the live performance, the reproduction of the fixation if the original fixation was made without the performer’s consent or if the reproduction was made for the purposes different from those for which consent was given. Once a performer has consented to the incorporation of his performance in a visual or audiovisual fixation, performer’s rights no longer apply.  Canada and the UK are members of the Rome Convention.  The USA is not.

 

  • WIPO Performances and Phonograms Treaty[28] (1996) (WPPT) which entered into force in 2002 and deals with rights of performers (actors, singers, musicians) and producers (persons who take the initiative and have the responsibility for the fixation of sounds). WPPT deals with purely aural performances, i.e. sound recordings (phonograms). It grants performers economic rights in their performances which are fixed in phonograms (not audiovisual fixations such as music videos), specifically the right of reproduction, right of distribution through sales of the original or copies to the public, rental rights, and the right of ‘making available’, e.g. making available on-demand or through the internet.  Where unfixed live performances are concerned, performers get the right of broadcasting, fixation or communication to the public, of the performance.  Canada, South Africa, the UK and the USA are signatories of the WPPT.  In the USA, the Treaty was ratified in 1999 and came in force in 2002.

 

 

  • Beijing Treaty on Audiovisual Performances[29] (2012) which deals with the intellectual property rights of performers in audiovisual performances. The Treaty is not in force yet, as it remains to be ratified by a minimum of 30 countries. It grants performers four kinds of economic rights for their performances which are audiovisually fixed (such as motion pictures), namely the right of reproduction in any manner or form, right of distribution of the original or copies of the performance to the public through sale, rental rights, right of making available to the public by wire or wireless means in such a way that the public may access from a place and time individually chosen by them, e.g. on-demand or through the internet.  Where unfixed (live) performances are concerned, performers get the right to broadcast, communicate the public, or authorise the fixation of their performances.  They also get moral rights.

 

The USPTO, at the time of the signing of the Treaty (AVP), prepared a background document[30] on it in which bald comments were made regarding the compatibility of the Treaty obligations with U.S. law.  Specifically, it was merely stated without substantiation that ‘under U.S. law, actors and musicians are considered to be “authors” of their performances providing them with copyright rights.’.  The author went on to say that ‘U.S. law is already generally compatible with the AVP provisions’ but that ‘nonetheless, implementation of the AVP may require some technical amendments of the Copyright Act’ in particular referring to where the Act refers to international copyright obligations.  The USPTO was less than cautious, and swayed by enthusiasm, in proclaiming that copyright law already generally catered for these rights.  After Garcia, we know that it does not.

 

US copyright law also does not provide performers with the all-important right to authorise fixation of their performance in the first place.  In a case such as Fleet v. CBS, Inc[31]the actor-plaintiffs were not paid and essentially disputed that their performances in a motion picture were authorised.  They came at their case via the common law right to publicity.  What if they had a simple right available to have authorised the fixation of their performance in the first place?  They might then have had a clear case for relief (rather than to have fumbled between the murkiness of asserting either a right to their likenesses on the one hand, or finding themselves entangled in the ‘legal morass’ of competing copyright claims in a single motion picture on the other).

 

The USA is confining its performing artists to a copyright straightjacket from which they are unable to protect, control, and derive ongoing economic benefit from, their performances.  Ms Garcia is an extreme example of how detrimental reliance solely on the copyright system can be for the rights of performers.  ‘From an international perspective, the debate about whether performances can also be copyrighted works seems a bit surreal nowadays because performers’ rights are protected as related or neighbouring rights, that is, rights related to, or neighbouring on, copyright proper.’[32]  Indeed.  There is a helpful neighbor available in the form of Performers’ Rights, which are going unacknowledged and remains undeployed, in the largest entertainment market in the world.  This neighbor will be a fixer.  The USA should invite it in.

 

SUZAAN LAING

Tulane University

19 April 2017

 

[1] Porter Wagoner song (1964) (performance viewable at )

[2] SelectUSA, in collaboration with the International Trade Administration’s Industry & Analysis Unit, https://www.selectusa.gov/media-entertainment-industry-united-states

[3] This industry includes businesses that produce motion pictures, television programs, the recorded music industry (including concerts and touring), radio and broadcasts.

[4] Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834)

[5] Barnard, Jamie (2005) ‘Performers’ Right’, Music Law Updates of Lewis Silkin Solicitors, UK (viewable at http://www.musiclawupdates.com/wp-content/uploads/pdf-articles/Article-Performers_Rights.pdf)

[6] I Didn’t Say That – The Ability of Actors to Control Their Performances Under Canadian Copyright Law, Bob Tarantino, 2015 (http://www.entertainmentmedialawsignal.com/i-didnt-say-that-the-ability-of-actors-to-control-their-performances-under-canadian-copyright-law)

[7] ‘…the Canadian film and television production industry has not ground to a halt in the face of this tsunami of copyright claims…’ (Tarantino, ex article above)

[8] 743 F.3d 1258 (9th Cir. 2014); 766 F.3d 929 (9th Cir. 2014); 786 F.3d 727 (9th Cir. 2015); 786 F.3d 733 (9th Cir. 2015)

 

[9] p 742, Judge McKeown

[10]  p 742, Judge McKeown

[11] p 742 Judge McKeown

[12] p 743 Judge McKeown

[13] P 1265, Judge Kozinski

[14] 17 U.S.C. section 102(a)

[15] Page IV-46, Intellectual Property in the New Technological Age (2016), Volume II: Copyrights, Trademarks and State IP Protections; Lemley, M.A., Menell, P.S. & Merges, R.P.

[16] UK Copyright, Designs and Patents Act 1988

[17] South African Copyright Act no 98 of 1978 (last amended in 2002)

[18] UK Act, section 3(1)

[19] 17 U.S.C. section 101

[20] 17 U.S.C. section 102(a)

[21] Goldstein v. California, 412 U.S. 546, 561 (1973)

[22] Article 1, section 8, USA Constitution

[23] 17 U.S.C. section 101

[24] 635 F.3d 290, 304-305 (7th Circuit 2011)

[25] Conrad v AM Community Credit Union 750 F. 3d (2014) 7th Circuit

[26] Pelligra, John Joseph, ‘Actor or Schmuck:  Who Owns an Actor’s Performance’ (2017) Law School Student Scholarship, Paper 867 (

[27] http://www.wipo.int/treaties/en/ip/rome/summary_rome.html

[28] http://www.wipo.int/treaties/en/ip/wppt/summary_wppt.html

[29] http://www.wipo.int/treaties/en/ip/beijing/summary_beijing.html

[30] https://www.uspto.gov/about-us/news-updates/uspto-led-international-delegation-negotiates-historic-audiovisual-performance

[31] 50 Cal. App. 4th 1911 (1996)

[32] Gervais, Daniel (2015) ‘The Protection of Performers Under U.S. Law in Comparative Perspective’, IP Theory: Volume 5, Issue 1, Article 8

 

 

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