Copyright and performance: reflections on a complex relationship

Although this Kat has recently been living with a spotty connection, which almost cut him off the blogosphere for a week, he noticed that Professor Rebecca Tushnet published a new article on 'Performance Anxiety: Copyright Embodied and Disembodied'. According to the abstract,

The primary economic and cultural significance of copyright today comes from works and rights that weren’t contemplated by the Framers of the Constitution’s Copyright Clause. Performance - both as protected work and as right - is where much of copyright’s expansion has had its greatest impact, as new technologies have made it possible to fix performances in records and films and as cultural change has propelled recorded music and audiovisual works to the forefront of the copyright industries. Yet copyright has never fully conceptualized performance, and this has led to persistent confusion about what copyright protects.

(c) Stephen Moorer

The author explains that performance, whose protection is usually justified either in relation to the presence of a technical element (the camera operator's choice of a shooting angle, the sound engineer's choice of a particular level), or of a creative one (the creative actions of the performers), 'is now the prototype for all works'. A play or score allows for a practically infinite set of performances; copyright, which expanded 'beyond exact copying to substantial similarity and derivative works', similarly covers an almost infinite set of potential variations. However, performance remained in the background, while copyright law focused on text and 'performance rights', and mainly dealt, in the digital era, with 'pure reproductions'. The article identifies several key issues in the relationship between performance and copyright: (1) how to identify the 'creative element' that makes a work of performance original and protectable, (2) who should be deemed its author and how to deal with joint authorship, and (3) how to assess infringement in this context. Let's briefly look at Professor Tushnet's view on each of these issues.

Creativity and fluidity
The author observes that plays and scripts, although meant to be performed, are protected as works, and that only certain performances are protected under US law (e.g. performances of a musical work or play, fixed in sound or audiovisual recordings). The protection of movies and other audiovisual works raises the possibility of recognising a separate protection for the dramatic work thereby depicted. Copyright law, however, 'has often ignored the fluidity of creativity, especially when it comes to works that are performed'. Contrary to literary works, performance is 'less fixed and predictable', as it is based on interaction between performers, which produces a unique interpretation of the underlying plot. According to the paper, this fluidity 'is inherent in any work under modern copyright law', and the boundaries of a work only emerge through comparison with other similar works:

Every copyrighted work is therefore like the script for a play: it is a blueprint, but not just for one particular instantiation. Rather, the blueprint can have a potentially infinite series of variations. All works are surrounded by possible derivative and infringing variants, most unrealized. However, as copyright’s scope expanded, the conception of a work of art, paradoxically, hardened.

Professor Tushnet describes the sacralization process that focused on a 'single canonical performance as the embodiment of a work', explaining that a static work raises fewer legal concerns than a changeable performance. To underline how performance may affect, and change, the meaning of the underlying work, she provides an exhaustive list of examples, ranging from Tina Fey's parody of Sarah Palin, to Jimi Hendrix's performance of The Star-Splanged Banner. The trasnformativeness of performance may not be widely recognized yet, but sensitivity towards it appears to be on the rise. The author cites the recent case of Keeling v New Rock Theater Prods as an example of this enhanced sensitivity, but warns that ' [i]f we don’t have a good vocabulary for explaining how meaningful performance is, it should come as no surprise that we don’t even know how to give credit to performers'.

(Joint) authorship
'[C]ontroversies over performance works', the paper notes, 'make up a large share of disputes over joint authorship in the U.S. system'. The courts' tendency to award authorship to a single person (motivated by the fact that joint authors share equally in the rights to a work, and can license the work non exclusively without the consent of the other authors) 'often leads to dismissiveness regarding the real creative contributions of others involved in bringing a work of performance to its audience'.

Kats are real performers!

The author recognises that economic reasons explain the focus on the doctrine of 'work made for hire', and that compensation for performers is usually expected to come from direct payment for their work, rather than from royalties. However, '[t]he ideology of creativity as the foundation of authorship suggests that (some) performers should count as authors'. Although contracts usually address the issues of authorship, through a 'work made for hire' clause, identifying the author remains important for many purposes. The inherent limitations of the test for joint authorship applied by US courts (which look at the specific intent to share authorship, and at customary roles), contribute to 'freezing notions of authorship and discounting the contributions of people who play vital roles in the form and content of the final work but who didn’t write scripts for it'. This flow could threaten copyright’s legitimacy, denying protection to creative contributions (the paper examines these issues in the context of some well-known cases, including the 'Innocence of Muslim' video, on which the IPKat commented here).

A plausible solution, according to the author, is to openly identify 'specific roles eligible for joint authorship treatment ..., making explicit judgments about manageability rather than implicit judgments about value'. On the other hand, instead, an overall reform of the system, through the allocation of interests proportionally to the contributions, or by partitioning copyright into smaller parcels, recognising 'microworks', would probably have an overall negative impact on the protection of authors' rights and third parties.

Performance as infringement

'Infringement inquiries', examined in the last part of the article, 'also raise difficult questions about how to compare distinct media, particularly when one medium includes a performance element and the other doesn’t'. The comparison requires a high level of abstraction, which calls for an appreciation of the inherent differences between the media (for example, literary analysis should not be applied to a movie). Professor Tushnet notes that courts have generally taken these aspects into account, when comparing movies with texts ('recognizing that film’s narrative techniques generally involve completely different kinds of expression than written texts') or with photos (the former being a 'wholly dissimilar and dynamic medium'), and when dealing with videogames (reasoning that 'infringement had to be evaluated in the context of the experience of gameplay rather than simply looking at screenshots'). Similarly, according to this study, jurors exhibit a high sensitivity towards performance, when comparing musical works.

Citing Newton v Diamond (where a court was confronted with the difficulties inherent to the distinction between performance elements and sound recording, and allocated the former to the latter), the author exhibits a cautious approach towards the shift away from written scores, in the context of musical works. 'More generally', she explains, 'careful consideration of performance elements in infringement claims may require courts to go beyond the terms with which they are familiar - plot and melody primary among them - and consider narrative techniques, rhythm, and other features that may affect similarity judgments'. Thus, courts 'should be skeptical about performance-based or cross-genre infringement', as the comparison of works and the identification of the contributions of performance elements represent key difficulties in this process.