The Protection of Performers Under U.S. Law in Comparative Perspective

by Daniel Gervais, Vanderbilt University Law School

from Volume 5, Issue 1 (Spring 2015)

Download this Article in PDF format from The Jerome Hall Law Library’s Digital Repository.

Abstract: The majority opinion of the Ninth Circuit panel in Garcia v. Google, Inc. stands for the proposition that an actor has copyright in her performance. The case was described as horrific and generated a significant amount of traffic on listservs and social media.

In the opinion, Chief Judge Kozinski made three key points. First, that there was originality in the performance, as required under Feist. The Feist court found that creative choices were necessary to generate sufficient originality to warrant copyright protection. Using Feist as backdrop, the Garcia majority found that:

An actor’s performance, when fixed, is copyrightable if it evinces “some minimal degree of creativity . . . ‘no matter how crude, humble or obvious’ it might be.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., . . . . That is true whether the actor speaks, is dubbed over or, like Buster Keaton, performs without any words at all.

Second, Chief Justice Kozinski found that a performance could be a derivative work of the script, noting that an unauthorized derivative received no copyright protection.

Third, he dismissed what might seem like a Coasean argument on the impossibly high transaction costs if a thicket of copyrights were recognized in film because:

As the above discussion makes clear, any analysis of the rights that might attach to the numerous creative contributions that make up a film can quickly become entangled in an impenetrable thicket of copyright. But it rarely comes to that because copyright interests in the vast majority of films are covered by contract, the work for hire doctrine or implied licenses.

The dissent also makes interesting points, in particular in drawing a clear distinction between a performance and a work in a copyright context—a distinction which, the dissent opines, is solidly anchored in the text of the statute:

Section 101 of the Act is also instructive, because it differentiates a work from the performance of it. It defines “perform a ‘work’” to mean “to recite, render, play, dance oract it.” 17 U.S.C. § 101 (emphasis added). Given this provision, it is difficult to understand how Congress intended to extend copyright protection to this acting performance. . . . An acting performance resembles the “procedure” or “process” by which “an original work” is performed. . . . Therefore, “[i]n no case does copyright protection” extend to an acting performance, “regardless of the form in which it is described, illustrated, or embodied in” the original work.

Wherever this case ends up in the courts, it raises fundamental questions about US law as it applies to performed works. This Essay uses a comparative lens to shed some hopefully useful light on the debate. The Essay proceeds essentially in two parts. First, the Essay explores and critiques the international protection of performers’ rights using both history and policy as focal points. The following part describes the protection of performers and other owners of “related rights” in US law and explains the differences that adopting a related rights regime would bring about in the United States.

Kamil Kubik: The Artist and Copyright Observed

by Elizabeth Townsend Gard, Tulane University of Louisiana & Yvette J. Liebesman, Saint Louis University

from Volume 5, Issue 1 (Spring 2015)

Download this Article in PDF format from The Jerome Hall Law Library’s Digital Repository.

Abstract: For over 60 years—from the time he fled his native Czechoslovakia in 1948 until his death in August 2011—Kamil Kubik created amazing oil paintings and pastels. His art graces the walls of The Breakers in Palm Beach, Florida, the Old Ebbett Grill in Washington, DC, and the homes of Presidents, Governors, and celebrities. Many of his works were also printed as lithographs and serigraphs, and sold at more affordable prices than the four-to-five figures that he received for the originals. Fortunately, he was not dependent on the sale of these prints, as most of the original works were unprotected by copyright, and many of the prints were unauthorized reproductions.

Copyright law is the key protection for the artistic and economic interests of an author. For a working artist, copyright law can be a vital tool in defending his personal property interests. As such, the result of the particular copyright law in effect at a specific point in time is dramatic and binary—a work is either under copyright or in the public domain; there is no middle ground.

This essay examines the parallel relationship between Kamil’s biography and the copyright law that affected his works. What role did copyright law play, and how did his relationship with copyright provide insight into our own relationships with copyright law? Kamil’s life, as seen through the lens of copyright presents an opportunity to observe how the law interacted with an artist during the mid-20th through early 21st century. He produced artwork that spanned several distinct eras of United States copyright law, and his works created abroad add an additional dimension to their legal quagmire. The laws of copyright dramatically changed in the United States alone at least three times during Kamil’s lifetime.

The complexity of the interaction between copyright law and Kamil’s work is not unique. Though this article chronicles his travels, his art, and how his copyright rights changed through time and space, it could be the story of many visual artists. The essay is important for 20th century visual artists themselves and their estates, and may provide valuable insight to museums and others interested in digitizing artists’ works. By focusing on Kamil’s journey, we hope to illuminate the intricacies, peculiarities, and sorrows that make up the copyright story of 20th century artists.

Are We Serious About Performers’ Rights?

by Mary LaFrance, William S. Boyd School of Law, University of Nevada, Las Vegas

from Volume 5, Issue 1 (Spring 2015)

Download this Article in PDF format from The Jerome Hall Law Library’s Digital Repository.

Abstract: Do performers have rights in the expressive works they help to create? Historically, the rights of performers have received far less attention that the rights of traditional authors. The law has been reluctant to recognize performers as authors and, to the extent that performers’ rights are recognized, they are secondary to, and more limited than, the rights of traditional authors. Recent developments, however, have brought performers’ intellectual property rights to the forefront. For a number of reasons, performers in the United States have increasingly begun to assert authorship rights in the works they help to create. In addition, recent international treaties to which the United States is a signatory have set minimum standards for the protection of performers’ rights, separate from rights of authorship. Because of these developments, Congress and the courts will soon face greater pressure to clarify the rights that performers enjoy in the products of their creative efforts. It is not clear, however, whether they will be up to the task.

Living Gardens, Living Art, Living Tradition

by Roberta R. Kwall, DePaul University College of Law

from Volume 5, Issue 1 (Spring 2015)

Download this Article in PDF format from The Jerome Hall Law Library’s Digital Repository.

Abstract: Copyright protection in the United States begins from the moment of a work’s “creation.”1 Although this rule is codified in the statute, the underlying issues of how and when “creation” occurs are rarely, if ever, explored. Under the current law, as soon as an author creates a copyrightable work of authorship and fixes that work in a tangible medium of expression, the work is entitled to protection. This formulation ignores the critical issues of whether fluid works of authorship that are constantly evolving can be subject to copyright protection and, if so, what is the scope of such protection. Not much has been said or written about how copyright should address such fluid works of authorship that are, by their very essence, continually in progress or otherwise subject to change on an ongoing basis. This dearth of discussion is particularly surprising given that law professors spend a majority of their time writing articles and books that are constantly in a state of flux. Even after publication, many would like to take a crack at revising prior works, and some actually do so in the form of sequel publications!

This Essay initially discusses the protection of fluid works from the standpoint of copyright law in the United States. By way of comparison, this Essay then examines the philosophy of human creativity deriving from the Jewish tradition. It argues that this ancient yet living tradition can inform our copyright policy concerning how we define eligible works of authorship and determine their appropriate scope of protection.

Copyright and Cross-Cultural Borrowing: Indo-Western Musical Encounters

by Arpan Banerjee, Jindal Global Law School (India)

from Volume 5, Issue 1 (Spring, 2015)

 Download this Article in PDF format from The Jerome Hall Law Library’s Digital Repository.

Abstract: This article traces the history of how Western rock musicians and hip-hop musicians, separated by many decades, have borrowed elements from Indian music. Conversely, the article also discusses how Indian film music composers have frequently, and rather blatantly, copied Western melodies. While cross-cultural borrowing raises complex socio-political questions, this article focuses on some practical legal questions that arise from such borrowing. The article discusses lawsuits filed by artists in India and the United States — from a much-publicized lawsuit against Dr. Dre by the Indian film music composer Bappi Lahiri, to a more recent lawsuit against another Indian film composer by the Canadian musician Loreena McKennitt — and compares Indian and US law on musical and sound recording copyright infringement. The article also discusses legal strategies that might be employed by litigants in India. The article argues that, contrary to popular perception, plaintiffs in India enjoy a number of advantages.

No Comment: Will Cariou v. Prince Alter Copyright Judges’ Taste in Art?

by Christine Haight Farley, American University Washington College of Law

from Volume 5, Issue 1 (Spring, 2015)

 Download this Article in PDF format from The Jerome Hall Law Library’s Digital Repository.

Abstract: Even before Campbell v. Acuff-Rose Music, Inc. made transformativeness the name of the game in fair use law, judges have been in search of artistic speech in their copyright fair use determinations, especially in appropriation art cases. Judges often find themselves ascribing meaning both to the defendant’s work and the plaintiff’s work when comparing the two in order to determine whether defendant’s art is new. So while many commentators attribute appropriation artist Jeff Koons’s victory in Blanch v. Koons after a string of losses to the development in fair use law contributed by Campbell, I instead argue that it has more to do with his change in legal strategy. In Blanch, Koons finally offered the court what it wanted: an “Art History 101” explanation of his work’s meaning—something he was too arrogant to do in previous cases. And the surprise in the Cariou v. Prince case was not the reversal of the restrictive requirement that fair reuses comment on the originals, but was instead the holding that transformative uses need not comment at all. Prince essentially refused to offer the court an explanation of the meaning of his work. As a result, the Second Circuit was hard-pressed to ascribe a meaning to his work that contrasted with Cariou’s. Instead, the court focused on objective differences between the works (size/color/materials) and a visibly different aesthetic (serene/natural beauty versus crude/jarring/hectic/apocalyptic). Thus, the “newness” that the transformative use test demands can be gleaned by the “reasonable observer” without any reference to the artist’s intentions. As a result, the provocateurs of the art world will not have to dumb-down their art as Koons did in Blanch. Judge Charles Haight in Rogers v. Koons described Koons’s art as “commenting upon the commonplace.” Not only was the judge clearly unimpressed with Koons, but he was also dismissive of appropriation art. In contrast, the Second Circuit in Prince accepts one of the central tenets of this art form: placing common images in new contexts can change the way we think of them. And we do not need the artist to tell us how.

Are the Courts Singing a Different Tune When it Comes to Music?: What Ever Happened to Fair Use in Music Sampling Cases?

by Michael B. Landau, Georgia State University College of Law

from Volume 5, Issue 1 (Spring, 2015)

 Download this Article in PDF format from The Jerome Hall Law Library’s Digital Repository.

Abstract: As “fair use” has become more common as a defense to copyright infringement, often successfully, it has not gained any ground in cases involving music sampling. In the years since Campbell v. Acuff-Rose Music, Inc., we have seen the introduction of “transformative use” to fair use analysis. “Transformative use” has led to the holdings that thumbnail reproductions of photographs, parodies of novels, parodies of advertisements, changed artworks, the inclusion of legal briefs in searchable databases, the inclusion of music in film, and the mass digitization of millions of books are all “fair use.” Almost every day we read of another example that would have been copyright infringement pre-Campbell, that is “fair use” post-Campbell. Everything is fair game, except for music sampling. Why is there such hostility toward music sampling, a practice that if the courts followed their “fair use” doctrine, would be allowable as a “fair use?” This article looks at the difference between sampling a sound recording, a musical composition, and/or both. It also looks at expanding the compulsory license provision to allow for sampling.