The Curious Case of the Actor’s Performance (Part One)

Bob Tarantino is a lawyer in the Entertainment Law Group of Heenan Blaikie LLP.  He holds graduate degrees in law from Osgoode Hall and the University of Oxford.

Thinking of entertainment law as the neglected adoptee of the intellectual property bar provides an apt metaphor.  Because it is more an area of practice than a coherent body of substantive law, academic attention to entertainment law (and entertainment lawyers’ input in academic discourse) tends to consist of occasional glances more than prolonged engagement.  Which is curious since the impetus for the current discussions about copyright reform originates at the interface between technology, IP law and the entertainment industries – exactly, in other words, the interface where entertainment lawyers practice.

As many reasons as there might be to reform the Copyright Act, one garners comparatively little attention: for practitioners the Act often offers up a confusing mess of poor drafting, unclear policy motivations and nonsensical results.  A quick tour through Sections 15 through 17 of the Act, three sections which have particular relevance for entertainment lawyers, will demonstrate the point.  The sections, which address a “performer’s performance”, are (or should be) of daily concern for lawyers representing film and television producers and the actors hired by those producers.

Section 15(1) of the Act provides that a “performer” (a term which the Act does not deign to define) has a “copyright” in the “performer’s performance”.  A performer’s performance is defined broadly, such that it would appear that virtually anything which an actor does in front of a camera constitutes a “performer’s performance”, something in which the actor has a “copyright”.

Difficulties arise in trying to determine the content of that “copyright”.  Section 15(1) draws an odd distinction between performances which are “fixed” and those which are “not fixed”.  The performer of an unfixed performance seems to have a much more robust copyright: he or she has the sole right to communicate the performance to the public by telecommunication, to perform the performance in public “where it is communicated to the public by telecommunication otherwise than by communication signal” and to fix the performance.  One could query how a performance which is unfixed could be “telecommunicated” or even communicated “by telecommunication otherwise than by communication signal”, but that seems almost churlish given the much more fundamental questions which will soon arise.

The performer of a “fixed” performance, by virtue of Section 15(1)(b), is granted the sole right to reproduce any fixation – but only if that initial fixation was made without the performer’s authorization.  One begins to ponder what would constitute “authorization” in this instance – filming a performance for purposes of filmmaking is not usually an unobtrusive undertaking (what with the presence of multiple cameras, lighting technicians, microphone operators and others) , so would simply showing up for work constitute the necessary authorization?  But let’s assume that the producers have received (and implemented) the advice of competent counsel and made the actor sign an agreement explicitly authorizing the filming (or “fixing”) of the actor’s performance.  We turn next to Section 15(1)(b)(ii), where we learn that, when the performer authorized the fixation, the performer’s right in his or her performance consists of the exclusive right to “produce any reproduction of that fixation, if the reproduction being reproduced was made for a purpose other than that for which the performer’s authorization was given”.  So the right over an authorized fixation is more narrow than that over an unauthorized fixation, but it remains cogent: if the performer authorized the fixation and permitted reproduction for purposes of theatrical exhibition, but not for purposes of television broadcast, and the producer broadcasts the movie on TV, that constitutes infringement.  Pausing at this point, we can definitively say the following: where an actor did not authorize the fixation of his or her performance, the actor has a broad right to control any reproduction of that fixed performance; where an actor authorized the fixation of his or her performance, the actor has the right to prevent any reproduction of the performance which goes beyond the bounds of the initial authorization.  These rights are (potentially) economically critical: they constitute the statutory right which must be bargained over by producer and actor.

Section 15(1)(b)(iii) is a head-scratcher: it states that the performer’s copyright in a fixed performance includes “where a fixation was permitted under Part III or VIII, [the right] to reproduce any reproduction of that fixation, if the reproduction being reproduced was made for a purpose other than one permitted under Part III or VIII”.  That’s an unnecessarily complicated way of saying that infringing activity which is not permitted by the enumerated exceptions to infringement (such as fair dealing in Part III or private copying in Part VIII) is still infringing activity.  Which one would have thought didn’t need reiteration.

Section 16 prompts more bafflement.  It states that “Nothing in section 15 prevents the performer from entering into a contract governing the use of the performer’s performance for the purpose of broadcasting, fixation or retransmission.”  All well and good, but does that mean, in accordance with the expressio unius canon of statutory interpretation, that something in Section 15 does prevent the performer from entering into a contract governing the use of the performer’s performance for other purposes?  If so, what exactly in Section 15 acts to prevent it?  If a performer nevertheless enters into a contract purporting to govern the use of the performance for some ostensibly illegitimate purpose (say, reproduction for digital downloads or pressing DVDs or telecommunication), what is the effect of Section 16 on that contract?  Is the contract rendered void ab initio?  And precisely why would Section 15 act to prevent any type of contract?

Section 17, however, is where an attentive reader will begin to think they have somehow slipped the bonds of rationality.  

Next week, in the second part  of this feature blog post, Bob Tarantino will examine Section 17 of the Copyright Act.