I Didn’t Say That – The Ability of Actors to Control Their Performances Under Canadian Copyright Law
When the United States Ninth Circuit Court of Appeals issued its 2014 opinion in Garcia v Google (the original order and opinion is here; the amended order and opinion is here), its tentative conclusion that actors might enjoy copyright protection in their on-screen performances was met with vociferous criticism from movie producers and online content providers – the criticism was so fierce, and the arguments marshaled so convincing that on May 18, 2015 the US Ninth Circuit Court of Appeals en banc reversed the earlier decision (the May 18, 2015 opinion is available here). But Canadian copyright law has protected performer’s performances for nearly two decades, without much trouble or even attention – is there an explanation for the discrepancy in reactions?
Garcia v Google – Facts and Procedural Background
The May 18, 2015 decision brings to an apparent close one of the stranger copyright cases in recent memory. The decision appears to definitively state that, under US copyright law, actors are not entitled to copyright in their on-screen performances – a conclusion which was vigorously argued over by a remarkably long list of intervenors in the case. The facts in Garcia are fairly straightforward: an actor responded to a casting call for movie titled “Desert Warrior” and appeared on-screen uttering two lines in the low-budget movie; unbeknownst to the actor, the producers of the movie dubbed her lines in the final version of the movie so that she appeared to be saying words she didn’t actually speak and re-titled the movie to “Innocence of Muslims“; worse, the movie, the trailer for which was uploaded to YouTube, proved to be incredibly controversial – in the words of the court, “the film fomented outrage across the Middle East, and media reports linked it to numerous violent protests”. The procedural history of the case is a bit more convoluted. The actor, seeking to have her participation in the trailer and film excised, sued Google and the producers of the movie and issued DMCA take-down notices, arguing, amongst other claims, that the defendants had infringed her copyright. Seeking an injunction forcing the removal of the footage from YouTube, she was unsuccessful in the district court, but a panel of the Ninth Circuit Court of Appeal reversed and granted the injunction. The court’s reasons seemed to indicate that Garcia had a protectable copyright interest in her performance as captured in the producer’s movie. That conclusion excited much debate and the case was re-heard by the Ninth Circuit Court of Appeal sitting en banc, which, as noted above, reversed the earlier Court of Appeal decision (Judge Alex Kozinski, who authored the original, controversial decision, stuck to his guns and dissented from the reasons of the en banc majority).
The initial 2014 Ninth Circuit Court of Appeals decision was controversial because it seemed so incongruous with established American copyright practice. American copyright law has historically not recognized any copyright interest on the part of an actor in their performance; indeed, when Garcia tried to register a copyright claim with the United States Copyright Office, the Office rejected the application, explaining that “longstanding practices do not allow a copyright claim by an individual actor or actress in his or her performance contained in a motion picture”. There seemed to be doctrinal and practical obstacles to recognizing performances as copyrightable, not least of which would be that, to again quote the Ninth Circuit’s en banc decision, “treating every acting performance as an independent work would … be a logistical and financial nightmare”.
In any event, for purposes of US copyright law, the “nightmare” now appears to be over (at least until the Supreme Court decides to take up the matter…). All that being said, Canadian copyright law does offer copyright protection to actor’s performances – so how have we avoided the “nightmare”?
Performer’s Performances in Canadian Copyright Law
As an initial observation, the Canadian Copyright Act required some significant amendments, introduced in 1997, in order to enable the protection of what the Act terms “performer’s performances”. Prior to those 1997 amendments, performances were not protected by Canadian copyright law, as they failed to constitute a “work” for purposes of copyright law; post-1997, they still aren’t a “work”, but rather are protected as other subject-matter.
Sections 15(1) and 15(1.1) of the Copyright Act state that (subject to various threshold matters, found in Sections 15(2), (2.1) and (2.2), such as where the performance occurred) “a performer has a copyright in the performer’s performance”. “Performer’s performance” is a defined term in the Act (found in Section 2), and it means:
(a) a performance of an artistic work, dramatic work or musical work, whether or not the work was previously fixed in any material form, and whether or not the work’s term of copyright protection under this Act has expired,
(b) a recitation or reading of a literary work, whether or not the work’s term of copyright protection under this Act has expired, or
(c) an improvisation of a dramatic work, musical work or literary work, whether or not the improvised work is based on a pre-existing work;
“Performance” itself as also defined in Section 2 and means “any acoustic or visual representation of a work, performer’s performance, sound recording or communication signal, including a representation made by means of any mechanical instrument, radio receiving set or television receiving set”.
Readers will note that the definitions are impressively broad: virtually any motion or sound created by the human body seems to qualify as a “performer’s performance”, including dance, mime, recitations of lines or extemporaneous utterances – clause (c) of the definition, which allows for the protection of “improvisations” seems particularly expansive. Further, it should be highlighted that there is no requirement that any performer’s performance be “original” – thus, even that low bar does not apply and thereby restrict the scope of protection for performer’s performances.
The exact nature of the rights accorded to performer’s in their performances are found in Sections 15(1) and (1.1): the copyright in the performance includes the rights to fix the performance and to reproduce the fixation of the performance.
At first glance, then, the situation under the Canadian Copyright Act seems like a particularly robust example of what the full Ninth Circuit was concerned about: if copyright protection extends that far, it seems designed to make for logistical nightmares in the administration of copyright. But the Canadian film and television production industry has not ground to a halt in the face of this tsunami of copyright claims – why not?
I think there are two partial answers. On a practical level, most of the problems are addressed by simple contractual arrangements – producers ensuring that everyone who appears on-screen signs some kind of waiver/release/transfer of rights. But if that doesn’t happen (which is more often the case in small budget projects – the Garcia reasons state “low-budget films rarely use licenses”), there remains a “fail-safe” mechanism in the Canadian Copyright Act: Section 17(1). What the Act gives with one hand (Section 15), it takes away with another: Section 17(1) states that when a performer “authorizes the embodiment of [his or her] performer’s performance in a cinematographic work, the performer may no longer exercise … the copyright [in that performance]“. In other words: if a performer authorizes the inclusion of their performance in an audio-visual project, the performer loses the right to control the exploitation of their performance in that project. And note what the language does not say: it does not say that the performer has to “authorize” the embodiment in writing. Thus, if there’s no need for the performer to memorialize their authorization in a written instrument, it becomes much easier to conclude that a performer authorized the embodiment of their performance simply by agreeing to be present in front of the camera (of course, that argument works only when the performer is aware that the camera is present and recording).
One final consideration which bears mention, and which is the more troubling: what about moral rights? The Copyright Modernization Act, enacted in 2012, added Sections 17.1 and 17.2 to the Copyright Act, which extended moral rights to some performances (for earlier Signal commentary on the topic, see Moral Rights Extended – But How Far?). It’s not immediately clear whether moral rights apply to an actor’s performance (or all actor’s performances) – the language of Section 17.1 states that it gives moral rights to “a performer of a live aural performance or a performance fixed in a sound recording”; that seems to indicate an intention to grant moral rights to what we might call “musicians”, and possibly “singers”… but actors? Most actors do generate an “aural performance” (by speaking lines) but is what they do a “live aural performance”? (What is a “live” performance anyways? What role is “live” playing in that phrase? What would a “non-live” performance look like? Is there a distinction for these purposes to be drawn between actors performing on the theatrical stage and actors performing for embodiment in a film?) The easier position is to conclude that the moral rights provisions in Sections 17.1 and 17.2 don’t extend to film/TV actors. But if that is incorrect, and actors do enjoy moral rights in their performances, then the position of producers becomes more complicated. Moral rights cannot be assigned, but they can be waived (Section 17.1(2)); there is no requirement that the waiver be in writing, but presumably for there to be a waiver there must be some turning of the mind to the matter – which, I think it’s safe to conclude, isn’t something that happens very often on set. One could try to rely on industry practice resulting in an implied waiver of moral rights, but even that seems a bit of a stretch. More fruitful might be the inherent limitations on moral rights: the right of association (i.e., the right to be identified as the performer of the performance) is limited to when it is “reasonable in the circumstances”; the right of integrity (i.e., the right to control the distortion, mutilation or modification of a performance and the right to control the use of the performance in association with a product, service, cause or institution) is limited to uses which “prejudice” the performer’s honour or reputation. Interestingly, Garcia might have had more luck with her claims under Canadian law, relying on moral rights infringement on the basis that, when the producers dubbed her lines and included her performance in a motion picture which was apparently different from what she originally understood herself to be participating in, her performance had been modified in a manner which prejudiced her honour or reputation.