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

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

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.

This is the second part of Bob Tarantino's feature blog post on "performer's performances" in the Canadian Copyright Act.  Part One can be read here.

In Section 17(1) we learn that if the performer has authorized “the embodiment of the performer’s performance in a cinematographic work” then “the performer may no longer exercise, in relation to the performance where embodied in that cinematographic work, the copyright referred to in subsection 15(1)”.  This is somewhat startling – it means that the rights discussed above which we thought were of such consequence (ie the right to prevent reproduction in media not contemplated by the initial authorization) is actually of no importance whatsoever: an initial authorization to include a performance in a movie is sufficient to obviate all control over the performance in any media.  And since the nature of the required “authorization” is not expressly set out, an implied “authorization” (e.g., simply showing up) may be sufficient to waive the copyright and, hence, the economic power engendered by such right.  Section 17(1) seems to gut the entirety of Section 15 – if the performance is embodied in a “cinematographic work”, then it is “fixed”, and hence Section 15(1)(a) is inapplicable; and since it is in a “cinematographic work”, then Section 15(1)(b) is rendered sterile.  Why, of all the types of performer’s performances, are only actor’s performances subject to this disadvantageous economic treatment?

Section 17(2) is even more impressively bizarre.  It provides that if the actor entered into an agreement authorizing the inclusion of the relevant performance in a movie, and the agreement included an obligation on the producer to pay remuneration to the actor for the “reproduction, performance in public or communication to the public by telecommunication of the cinematographic work” then… actually, let’s pause right there.  Note first that the section talks about the economic rights which the preceding section just wiped out.  Note second that the section does not actually grant to actors a right to remuneration, it only says that if the parties have already agreed to include a right to remuneration in their contract, then certain consequences follow.  The right to remuneration for reproduction, performance or telecommunication, then, is subject to the vagaries of contractual bargaining power.  As a practical matter, only those actors who are able to exert leverage in negotiations by virtue of their celebrity or who are able to take advantage of the greater bargaining power arising from membership in a collective bargaining guild or union will be able to take advantage of Section 17(2).  In short, only those who least need statutory protection will be able to avail themselves of it.  Assuming that the actor in question has been able to wrangle a right to remuneration into his or her contract, what does Section 17(2) go on to say?

It says that the actor can enforce their right to remuneration against the other party to the agreement, any assignee of that original party and any other party who owns copyright in the movie and reproduces, performs it in public or communicates it to the public.  And each of those parties is jointly and severally liable to the performer for the remuneration in question.  Which means that, inexplicably, not only is every single entity in the chain of title for a movie jointly and severally liable to make payment, but they are liable even if they had nothing to do with the reproduction, public performance or communication in question.  If a producer grants distribution rights in a movie to a distributor and contractually obliges the distributor to make payment of royalties to an actor, and the distributor fails to do so, the producer is nevertheless statutorily liable.

The strangeness of Section 17 does not, however, stop there.  Continue reading through to Section 17(3) and you will discover that the rights contemplated in Section 17(2) only apply “if the performer’s performance is embodied in a prescribed cinematographic work”.  Thus, the availability of the powerful remedy contained in Section 17(2) is limited solely to actors in those films which the federal Cabinet deems worthy of protection.  The regulations show that the only films which render a performance eligible for the enhanced protection of Section 17(2) are: (a) films which have completed the process for certification as a “Canadian content” production or (b) which have received funding from a federal or provincial government agency engaged in “the development and production of cinematographic works”. 

So the rights contemplated in Section 17(2), powerful as they are, are available only to those actors who possess enough bargaining power to obtain a contractual right to a royalty – and even then, only if the movie in which they participated receives government certification as “Canadian content” or receives direct government funding (for example from Telefilm Canada – which is generally restricted to projects which in one of a variety of ways qualify as Canadian content).  Inexplicably, then, actors involved in non-Canadian content movies (which, to be clear, accounted for more than $1.7 billion worth of production activity in 2008/09) are not entitled to the protection afforded by Section 17(2).  Of course, actors generally have little or no control over whether a particular project is intended to or will in fact qualify as Canadian content – that is a decision entirely in the hands of the producer(s) of the film – precisely the party from which the actor in question will need to negotiate the right to remuneration on which the entire rickety house of cards is based.

To recap, when it comes to film and TV actors, over the course of three sections the Copyright Act manages to accomplish the following: it grants them an economically valuable copyright over their on-camera performances, which is then rendered virtually worthless if they authorized the recording of their performance, unless they successfully bargained for contractual remuneration of the seemingly-worthless right, in which case they can sue an overly-broad set of third parties in the event of a breach of contract, but only if the film in which they appeared qualifies as “Canadian content”.  And this language, astoundingly, represents state of the art copyright drafting, having been incorporated into the Copyright Act with the 1997 amendments.  Many “big picture” issues and principles need attention in copyright reform – perhaps we can include “comprehensibility” as one of them.