In its haste to take Internet service providers off the hook for infringement, the [Garcia] court . . . rob[bed] performers and other creative talent of rights Congress gave them. I won’t be a party to it
– Judge Alex Kozinski
If a person sends a minimally creative, original e-mail to a friend, that writing can be registered with the U.S. Copyright Office. Remarkably, the same likely cannot be said for an actor’s contribution to a play or movie. In Minneapolis, Actors’ Equity Association (AEA) member Nathan Keepers has developed a following for his personalized, spry take on the Jacques Lecoq, improvisational clowning, movement method. Keepers is perhaps best known for playing twenty different characters in the hit one- man show Fully Committed at the Jungle Theater. His professional biography includes roles at the Guthrie Theater, the American Repertory Theater, and being an Artistic Associate at the former Tony-winning Theatre de la Jeune Lune, now reimagined as The Moving Company. Due to a recent Ninth Circuit en banc decision that denied a film actor copyright interest to her performance, it is questionable whether mastermind actors like Keepers will ever own the copyright to their performances or their improvisational dialogue. As expressed by British television actor Malcolm Sinclair, “When you act in something and it goes on to be a worldwide success, it is incredibly soul-destroying to know you may have no part in it at all.”
In 2015, the Ninth Circuit went beyond the facts of the case and broadly denied the existence of an actor’s copyright, suggesting that actors look to state publicity laws for relief. It is true that some states have adopted publicity rights, which mirror the power of an author to copyright, by protecting one’s name, image, and likeness in commercial settings. However, if the image is embedded in copyrighted material, federal copyright law preempts access to this cause of action. As a result, actors without copyright ownership are left without a remedy to control unwanted distribution. While authorship would provide more economic security to the acting profession, copyright law is but one piece in the larger puzzle of solving this artist group’s gross wage inequality. In New York, copyright ownership has been a point of contention for theater collaborators. Unlike film or television writers, playwrights typically retain the copyright to their plays. But the person who profits most from a production is usually the producer, not the playwright. It is frankly unheard of to be a full- time playwright. Playwright and screenwriter Doug Wright shared how little he personally values copyright ownership in light of much higher Hollywood paychecks. For one Hollywood project, he earned “roughly eighty times the fee for [his] most recent play commission.” Depending on the agreement, playwrights are generally given only around five to eight percent of the royalty rate, making this copyright battle look like a fight at the food bank over bread. But with American musicals bringing in as much as $250 million, a five percent royalty rate has motivated some directors and choreographers to assert that their contributions are worthy of joint authorship to the script and authorship to the performance. Producers oppose these authorship claims because multiple authors complicate the production process and diminish profits for existing royalty holders. For example, if directors were to own their individual performances, producers might have to ask permission or negotiate an assignment before streaming a live broadcast of their performance. If a director’s contribution was elevated to the level of meriting joint authorship, the playwright would be forced to split both his earnings and control with the director.
Regional theater cities like Minneapolis are the Wild West for theater copyrights in that no one talks about copyright. This is mainly because few new works are even made, and if made, almost none are reproduced to make a future interest truly desirable. But Minneapolis does have theater—lots of it—and with theater comes a sizeable actor workforce. The sparse data available tells us that while Minnesota has fourteen times the national average for per capita revenues for theater companies, it also has an unexplained declining actor workforce.
I propose the recognition of the actor’s copyright as but one solution to remedy this problem. The AEA, the stage actor’s union, has been silent on copyright ownership, leaving that fight to individual actors. From the actor’s perspective, recognizing acting performance as copyrightable material could provide new benefits to the craft of acting, including royalties and the ability to control one’s work. As copyright law is an economic tool used to collect royalties, actors and their unions could leverage this property interest as a bargaining chip. This is particularly paramount since actors are typically not paid much. Even at a big house like Chanhassen Dinner Theater, the largest dinner theater in the nation, a first-rate AEA actor like Keepers is only guaranteed $696 per week. The status quo is even worse for the many non-union actors who are typically only offered modest stipends, if compensated at all for their contribution. In summary, copyright ownership could open the door to giving actors better pay, more control over their work, and the opportunity to argue for joint authorship.
Part II of this article explains AEA’s minimal involvement in advocating for the actor’s copyright and provides a summary of case law addressing the copyrightability question. Part III reveals the still-unlivable working conditions of the American stage actor, due mostly to inconsistent, short-lived work. Part IV illustrates the potential for greater profit sharing on Broadway and the larger theater community if live streaming were to become a more common venture. Part V challenges legal and policy arguments against the actor’s copyright, and explains the present state of the Beijing Treaty on Audiovisual Performances. Part VI proposes the work be integrated into the subject matter categories “pantomime and choreographic works,” and “dramatic works.”