Under US copyright law, an actor or athlete cannot copyright a performance in the same way that an author can copyright a novel or a visual artist can copyright a painting. This is because, in order to be eligible for copyright, a work must be original and fixed in a tangible medium. A performance may not not considered a tangible work unless it was recorded or shown live, as it is created in the moment by an actor’s use of their body and voice or an athlete participates in a game or match.
However, there are scenarios where actors and athletes may benefit from an understanding of name, image and likeness laws. An actor or athlete may have control over the use of their name, likeness or image in films, visual art or in sports generally off the field or court). For more information about the applicability of acting to these name, likeness and image law, consult with the Duncan Firm legal team.
A reel is a collection of film clips demonstrating the actor’s skills, a type of visual resumé. Putting together a reel is a necessity for film and television actors. Technically, it does constitute copyright infringement since it involves copying portions of films that the actor usually does not own. In these clips, the actor’s performance is not a copyrightable element: the image of the actor is.
However, acting reels are generally protected from copyright law by informal agreement. The entertainment industry recognizes that prosecuting actors for using clips in their reels would be counterproductive and place an undue burden on actors seeking work. The only exception would be if an actor signed an agreement with the copyright holder promising not to use certain material in their reel. Otherwise, actors are generally free to use clips of their performances as long as they are not being monetized.
The right of a person to control the commercial exploitation of their identity, including their name, image, and likeness, is called the right of publicity. It is a separate field from copyright law, but does overlap in some cases.
The right of publicity is a relatively new aspect of the law and is still being clarified by the courts. For example, if a company uses an actor’s image in an ad campaign without their permission, they are likely infringing on the actor’s right of publicity. On the other hand, this right does not extend to every single image or film clip taken of a celebrity. Otherwise, it would be impossible to broadcast sports games since they necessarily involve images of every player.
However, the right of publicity is a vital tool to protect actors’ privacy and allow them to manage their reputations. If you have questions about copyright law as it pertains to actors, the team at Duncan Firm can assist you with information and legal advisement.
