Actors as Authors in American Copyright Law

Abstract

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.

Keywords: actors, copyright, authorship, film, performers