Actors Guild Gets Behind Copyrights for Some Performers

With nods to the many actors who played "Batman" and the actress who plays many roles on "Orphan Black," the guild weighs in on a controversial case before a federal appeals court
Steve Wilkie/BBC AMERICA
"Orphan Black" actress Tatiana Maslany

It's been a pretty lonely year for Cindy Lee Garcia, the actress who got death threats for her role in Innocence of Muslims before suing Google for not abiding by her takedown notice. Even after Garcia convinced 9th Circuit Chief Judge Alex Kozinski that actors could have a copyright interest in their performances within the film, hardly anyone stood by her side upon attacks from Google, Netflix, Facebook, news organizations, documentary filmmakers, law professors and others opining that the ruling would create chaos.

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Now, finally, someone has her back.

On Friday, Garcia finally attracted amici support from SAG-AFTRA, the Actors Equity Association, the American Federation of Musicians and a few other labor groups in the entertainment industry. They say that an actor can indeed have a copyrightable interest in a performance that's separate and apart from the interest anyone else holds in a motion picture.

To qualify for copyright, a work has to be an original work of authorship plus be fixed in a tangible medium of expression. That is well understood, but the details command controversy. In the case concerning Innocence of Muslims, judges are being asked to figure out whether an independent contribution to a joint work counts. The reason why so few cases have addressed this issue is that producers usually get actors to sign releases disclaiming any possible copyright interest. While that hasn't foreclosed all claims — most famously, a Muslim consultant who helped Spike Lee on Malcolm X brought a case about his contribution — it's still rare enough that Garcia's victory last February raised eyebrows and caused pleas of reconsideration.

Now that the 9th Circuit has decided to review the decision en banc, SAG-AFTRA and other performer guilds have filed a brief that argues for the originality of acting performances. These amici also say that a performance can be considered a pantomime or dramatic work that's covered by Section 102 of the Copyright Act.

"Stripped of its dialog and dubbed over, as it was, Garcia’s performance can also be considered a work of pantomime," states the brief.

SAG-AFTRA isn't just going to rely on an actress most people never heard of before her situation arose. The amicus brief comes forward with A-list names who have evinced originality.

"Generally speaking, each actor adds something new to the character she performs," continues the brief. "Google and its amici argue that the actor is basically a puppet — an automaton that merely does as the director instructs, reading the words the writer writes, depicted as the cinematographer sees him or her. But this is clearly not the case. The actor imbues the character with originality. Compare, for example, the various actors who have played the character Batman on the big screen — each actor brought something different to their performance of the character that, even when masked in full costume, Christian Bale’s performance stands apart from Michael Keaton’s, or Val Kilmer’s, or George Clooney’s or even Adam West’s television appearances. And the recent casting of Ben Affleck to play the role sparked considerable debate among fans of the character."

There's then discussion of how Heath Ledger discussed in an interview before his death how he spent a month trying to "find" the Joker's character and how the film's director gave him free rein to do so.

SAG-AFTRA also nods to another actor. Tatiana Maslany might have been snubbed by the Emmy's, but at least she can take heart that the actors guild is bragging about her dexterity.

"Another example of the originality an individual performer adds to a role can be seen in Tatiana Maslany’s portrayal of no less than eight on-screen characters (to-date) in the television series Orphan Black. Maslany’s characters are clones of each other — a 20-something grifter, a science genius, a pill-popping housewife, a transgender male, and a deranged, yet somewhat sympathetic, serial killer —each very distinct from the others."

This case isn't simply about whether actors display sufficient originality in their craft. Google and its supporters have highlighted other reasons why Garcia shouldn't prevail. Among them: Even if she can raise a cognizable copyright interest, there should be recognition of DMCA safe harbors, that she should be considering fair use before sending a takedown notice, or that Google is still immune under Section 230 of the Communications Decency Act. Thus, the 9th Circuit has independent reasons to possibly sidestep the issue of performer copyrights if it so chooses.

But...

Others who have supported Google have thrown up a huge caution flag about even the premise that actors can assert authority over copyrightable matter. And if we're considering musicians, too, there's worry that by the same token, a violinist or some other contributor in an orchestra could be recognized for their own creative output.

A number of intellectual property professors have raised the argument that actors perform with the knowledge that their work will be merged into a collaborative work and that they thus exercise no directorial or editorial control. Garcia's "performance was created on set, under the guidance of the director and in collaboration with the other actors in her scenes," they write.

Netflix echoes this thought and maybe runs even further with it by warning of a "new species of copyright" that would arm even minor performers with the possibility of stopping the distribution of works. The video streaming company wants to foreclose that possibility. "One is either a joint author of a motion picture, or one is not an author at all," writes Netflix in arguing against what it says is an unfixed, non-joint-author view of copyright. "It is a view of copyright law under which Keith Richards cannot enjoin Mick Jagger’s use of You Can’t Always Get What You Want in a car commercial, but any member of the boys’ choir in the background can."

Of course, such a problem could easily be taken care of by getting the boys' choir to sign work-for-hire waivers, but then there's word from independent documentary filmmakers who tell the 9th Circuit that many in their ranks "simply do not have the resources or the know-how to draft and administer appearance releases for their performers."

Even David Nimmer and three other law professors who acknowledge in an amicus brief that actors' performances can rise to protectable works of authorship say that Garcia's performance — five seconds in total — "falls short, quantitatively and qualitatively, of the low threshold of originality required for copyright protection."

The SAG-AFTRA brief, authored by Duncan Crabtree-Ireland and Danielle S. Van Lier, answers these doubts.

"While a director or cinematographer may help guide the actor’s performance, particularly in connection with stage directions, it is the actor’s own original expression that the audience sees," says the brief.

In an effort to placate concerns from distributors of user- generated content, documentaries, reality shows, game shows and news programs, the amici supporting Garcia admit that some contributions "lack the requisite 'modicum' of creativity required to be considered an 'original work of authorship,' " but also defend the notion that great things can come in small packages.

"Some of the most memorable film performances are ones that were exceptionally short," writes the actors guild, mentioning Robert Duvall waxing poetic about the smell of napalm in the morning in Apocalypse Now.

"In some cases, these may be moments in a larger performance," says the actors guild, mentioning Peter Finch’s “mad as hell” monologue in Network.

"In others, they may be brief appearances, or cameos, by a celebrity playing an often uncredited role," says the actors guild, mentioning the brief appearance by Stan Lee in the films based upon various Marvel Comics properties.

Even in support of Garcia, the guild appears to attempt to soothe the 9th Circuit by explaining why the impact of a decision favoring her won't be as worrisome as Google's supporters believe. They tell the 9th Circuit that major studios and production companies are signatories to collective bargaining agreements that expressly recognize an employer-employee relationship, with the implication being that most performances will fall under the work-for-hire doctrine. Even in other situations, like instances where performers are hired through "loan out" companies, they say it's common practice for the parties to reach a contract that the work is being performed as a work made for hire. Nevertheless, with an eye on the prize, the guild defends its primary interest by telling the federal appellate court, "This case presents some unique facts that the trial court should address with the understanding that an actor may have a copyright interest in her performance."

Email: Eriq.Gardner@THR.com
Twitter: @eriqgardner

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