Lights, Camera, Legal Action: Assessing the Question of Acting Performance Copyrights Through the Lens of Comparative Law

INTRODUCTION In a controversial opinion released in May 2015, the United States Court of Appeals for the Ninth Circuit addressed an unusual, and highly publicized, copyright question: Can an actor claim a copyright in his or her individual dramatic performance, distinct from the film at large? (1) In Garcia v. Google, Inc., the court initially held that an actor, like the plaintiff, Garcia, could possibly claim a copyright interest for her individual performance in a film, so long as that contribution met the threshold requirements of copyrightability laid out in the Copyright Act. (2) After an uproar from third-party content distributors, film industry players, and a variety of others, the court revisited the case en banc. (3) In an amended opinion, the court did a full one-eighty, holding instead that Ms. Garcia had no copyright claim in her performance and suggesting that actors may never obtain a copyright of this sort. (4) The Garcia litigation has ignited extensive debate in both professional and academic communities regarding the possibility of granting copyrights in actors' individual performances. (5) On one side, commentators argue that recognizing such rights will lead to a "splintering" problem in the film industry, as anyone who contributes something minimally creative to a film could claim a copyright interest, leading to a title searching problem for downstream users, (6) imposing practical burdens on producers of creative works, (7) and violating the Constitutional mandate that copyright law "promote ... [p]rogress." (8) On the other side, however, parties assert that these fears are exaggerated, and so long as an acting performance meets the minimal requirements for copyrightability set forth in the Copyright Act, (9) it should receive protection. (10) The fact that the Ninth Circuit, arguably most equipped to evaluate claims relating to motion pictures, (11) came out on each side of this argument at some point during the Garcia litigation (12) illustrates the complicated nature of this question. In its en banc opinion, the court noted that Garcia's claim was inconceivable under American copyright law, but intimated that she might have had a viable claim had her case arisen in a foreign jurisdiction. (13) According to the court, Garcia's claim was more attuned to a system that recognizes either moral rights (14) or a right to be forgotten, (15) which would better enable Garcia to "have her connection to the film forgotten and stripped from YouTube." (16) American copyright law has historically rejected any notion that authors are entitled to prevent the use of their works as a matter of natural right (17)--as asserted under moral rights and the right to be forgotten (18)--instead justifying copyright law as a tool for regulating economic efficiency so as to generate public benefits. (19) As the court explained, moral rights are only recognized in America in an extremely limited category of visual arts, (20) from which motion pictures are explicitly excluded. (21) According to the court, American copyright law was not the proper source of Garcia's relief. (22) Despite the United States' apparent aversion to moral rights, the court's allusion to foreign policies in its opinion invites a deeper look into foreign copyright policy to craft a potential solution for the problem of individual performance copyrights. Rather than analyzing the arguments in the Ninth Circuit's en banc opinion, this Note will explore the issues raised by Garcia in light of international intellectual property law. As mentioned, the Ninth Circuit made clear that an actor does not have a distinct copyright interest in his or her individual performance within a film under current American copyright law. (23) This Note will use comparative methods to consider whether an actor should have such an interest based on America's international obligations under various intellectual property treaties, the treatment of acting performances in parallel foreign jurisdictions, and the current framework of American copyright law. …