Copyright and performance rights in an online video world

by Thompson Coburn LLP
Contact

 

We can chalk up another Internet-prompted intellectual property frontier: performance rights. People have been performing for one another for centuries. But suddenly courts are grappling with performance copyright claims, including two quite unusual cases that led to decisions by two of the country’s most prominent and thoughtful judges.Banana Lady copyright

Performances, at least live performances, generally fall outside of copyright protection. A copyrighted work must be fixed in a tangible medium of expression, and live performances are dynamic and ephemeral, not fixed. But there’s an Internet twist — everyone has video cameras these days, and the resulting videos frequently end up online. So performances are often fixed (often by someone else’s video, perhaps unauthorized by the performer), and those videos are often made widely available.

In those circumstances, it’s not surprising that two quite different cases recently reached federal appellate courts, alleging violations of performance rights. In both cases, it was the posting of video on the Internet that concerned the plaintiffs and led to their suits.

No contract? An actor may own a copyright
The case that has received the most attention, and clearly the most serious of the two, concerned an amateur actress, Cindy Lee Garcia. She agreed to perform a minor role in a historical adventure film. But the producer apparently misled her, for her scene was used in an anti-Islamic film titled “Innocence of Muslims,” and her brief performance was partly dubbed so that she appeared to be asking, “Is your Mohammed a child molester?” Not surprisingly, Islamic groups were offended by the film and an Egyptian cleric even issued a fatwa against everyone involved with the film. Garcia soon began receiving death threats.

The film had been posted on the Internet, and Garcia sought to have it taken down. But under the Digital Millennium Copyright Act, only copyright owners can demand takedown of a work. The film was the producer’s copyrighted work, not hers. She claimed, however, that in the unique circumstances of this film, she owned an independent copyright in her performance, as it was fixed in tangible form in the film. 

The trial judge rejected Garcia’s claim, but on appeal, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit reversed in a 2-1 decision written by Chief Judge Alex Kozinski, a highly regarded judge who has written many key decisions in Internet, intellectual property and entertainment law.

The Garcia case is clearly unusual, as Judge Kozinski acknowledged. Actors don’t own copyrights in their performances in Hollywood films — but that’s at least partly because film contracts clearly specify each person’s rights. In Garcia’s case, there was no contract, and thus the unusual (“rarely litigated”) issue arose of whether she had a copyright in her performance. (There is likely to be greater use of contracts even in low budget films as a result of this ruling.)

Judge Kozinski’s decision roughly followed the following lines: Garcia acted creatively, and through her acting contributed to the film beyond the mere lines and directions in the script. Because those creative actions were filmed, they were fixed in tangible form and hence protectable as copyright. The producer wasn’t her employer and had no written agreement with her, so she owns the copyright, not him. And while she clearly consented to his use of her performance in the historical adventure film, that consent doesn’t extend to the anti-Islamic diatribe, which “differs so radically” from what she originally understood. Thus, at least on the record of the preliminary injunction hearing, she owned a copyright and could claim that its Internet distribution, as distorted and placed in “Innocence of Muslims,” was unauthorized.

The ruling has sparked considerable criticism, and the court revised its opinion, though not its outcome, in response. And Judge N.R. Smith dissented, relying on standard copyright dogma that mere performances by actors and actresses are not intended to be copyrightable. He essentially identified the script to which Garcia performed, and the resulting movie informed by creative decisions of the photographer and director, as the relevant creative works, particularly given the minimal aspect of her performance compared to the entire work.

The Garcia decision, currently awaiting possible rehearing by the Ninth Circuit en banc, is clearly controversial, and raises many concerns, including disruption to DMCA procedures if every participant in collective multimedia work has a right to demand it be taken down. And the Garcia ruling cannot be separated from its unique facts, including the fatwa and death threats.

Banana Lady suit
Far different circumstances were presented by Catherine Conrad, a/k/a the “Banana Lady,” who puts on private performances while wearing a costume in the shape of a giant banana. (She also appears to use litigation in seeking to supplement her revenue from her “Banana Shake” performances.)

One of her cases, Conrad v. AM Community Credit Union, reached the U.S. Court of Appeals for the Seventh Circuit. Conrad had performed at a credit union trade association event, and despite her desire to forbid photos and videos, videos of her performance were posted to the Internet. She claimed that those videos infringed her performance.

The appeals court unanimously rejected her claim, in a decision written by Judge Richard Posner, another intellectual property thought leader. He held that Conrad’s performance “was not copyrighted or even copyrightable,” since it wasn’t fixed in a tangible medium. And because the videos taken by members of the audience merely portrayed non-copyrightable material, they didn’t infringe her rights.

As in Garcia, contracts could have made a difference. Conrad alleged that the event organizer was contractually obligated to prohibit posting of videos of her performance — but the record showed that the organizer did make that announcement, and therefore cannot be claimed to have induced any copyright violations.

Finally, as in Garcia, the factual circumstances colored the case. Conrad had a record of making frivolous claims, so much so that the appeals court even suggested that trial courts should consider barring her from filing further cases until she pays the sanctions awarded to her adversaries in several previous cases. And, of course, no one was making death threats over silly “Banana Shake” performances.

But one message is clear from both Garcia and Conrad: In today’s world, where performances of all kinds are routinely made available on the Internet for worldwide viewing, performers will be increasingly seeking to protect their performance rights, through both contracts and copyright law.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Thompson Coburn LLP | Attorney Advertising

Written by:

Thompson Coburn LLP
Contact
more
less

Thompson Coburn LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.