Actors as Authors in American Copyright Law

by Justin Hughes

     Among the many kinds of works eligible for copyright protection, audiovisual works are arguably the most complex, involving screenwriters, directors, actors, cinematographers, producers, set designers, costume designers, lighting technicians, etc. Some countries expressly recognize which categories of these contributors are entitled to legal protection, but American copyright law does not. Because the complex relationships among these creative professionals are usually governed by contract, there is relatively little case law on issues of authorship in audiovisual works. This is especially true on the question of dramatic performers as authors of audiovisual works.

     This Article provides the first in-depth exploration of whether, when, and how actors are authors under American copyright law. After describing how case law, government views, and scholarly commentary support the conclusion that actors are authors, the Article analyzes the strange—and strangely inconclusive—2015 Garcia v. Google litigation. The Article then uses some simple thought experiments to establish how dramatic performers generally meet both the Constitutional and statutory standard for “authorship.” Finally, the Article reviews the various filters that prevent actors-as-authors legal struggles and how, when all else fails, we can consider actors as joint authors of the audiovisual works embodying their dramatic performances.

Minding the Gap

by Shmuel I. Becher & Tal Z. Zarsky

     Online and offline, relations between consumers and businesses are most frequently governed by consumer standard form contracts. For decades such contracts have been assumed to be one-sidedly biased against consumers. Consumer law seeks to alleviate this bias and empower consumers. Legislatures, consumer organizations, scholars, and judges constantly look for ways to protect consumers from unscrupulous firms and unfair behaviors.

    While consumer-business relations are assumedly administered by standardized contracts, firms do not always follow these contracts in practice. Sometimes there is significant disparity between what the written contract stipulates and what consumers experience de facto. Interestingly, firms often deviate from the written contract in favor of consumers, thus creating a gap (the Gap). In other words, firms often take a lenient approach despite the stringent written contracts they draft. This Article examines whether, counter-intuitively, policy makers should add firms’ leniency to the growing list of firms’ suspicious behaviors.

     This Article proposes that firms’ lenient approach, coupled with online tools and human psychology, may occasionally have surprising and harmful qualities. It illustrates how technological changes can turn the Gap into a key component in consumers’ understanding, or perhaps misunderstanding, of consumer contracts. It examines when firms’ leniency should be considered manipulative or exercised in bad faith. It then explores whether firms should be allowed to enforce the written contract even if they deliberately and consistently deviate from it.

   The main contribution of this Article is threefold: First, it points to the Gap and examines its foundations and origins. Second, it illustrates how the Gap complicates the interplay between reputation, conduct, trust, and the need to protect consumers. While it is generally believed that the Gap is harmless or even desirable, we show that it might have serious adverse effects. Third, it identifies key questions policy makers and courts should consider with respect to this Gap.

First Amendment Envelope Pushers: Revisiting the Incitement-to-Violence Test with Messrs. Brandenburg, Trump, & Spencer

by Clay Calvert

    This Article examines weaknesses with the United States Supreme Court’s Brandenburg v. Ohio incitement test as its fiftieth anniversary approaches. A lawsuit targeting Donald Trump, as well as multiple cases pitting white nationalist Richard Spencer against public universities, provide timely springboards for analysis. Specifically, In re Trump: 1) illustrates difficulties in proving Brandenburg’s intent requirement via circumstantial evidence; and 2) exposes problems regarding the extent to which past violent responses to a person’s words satisfy Brandenburg’s likelihood element. Additionally, the Spencer lawsuits raise concerns about: 1) whether Brandenburg should serve as a prior restraint mechanism for blocking potential speakers from campus before they utter a single word; and 2) the inverse correlation between government efforts to thwart a heckler’ s veto via heightened security measures and Brandenburg’s imminence requirement. Ultimately, this Article analyzes all three key elements of Brandenburg—intent, imminence and likelihood—as well as its relationship to both the heckler’s veto principle and the First Amendment presumption against prior restraints.

Market-Based Innovation in Consumer Protection

by Kelli Alces Williams

     In the aftermath of the financial crisis of 2008, low-income borrowers have been virtually shut out of the housing market. The spectacular failure of overzealous subprime lending at the beginning of the century is the culprit. Creditworthy borrowers exist in that underserved population, though regulation and the continued dominance of traditional banks in the mortgage market have conspired to deny those borrowers access to credit.

     A market solution to this problem exists and is gaining momentum. Financial technology firms have begun to focus on the borrower experience and to create tools to help unsophisticated borrowers navigate complex financial products. This Article takes that trend a step further and anticipates market innovations that will broaden the population of eligible borrowers. These market innovations can overcome regulatory missteps to both enhance efficiency and provide meaningful protections to consumers that regulation has failed to deliver.

     This Article makes several contributions to the literature. First, it shows how mortgage regulation has simply excluded the market participants it was intended to protect, thereby denying them the social and economic advantages of homeownership. Second, it shows how fintech has begun to work around those regulatory limitations to respond to the problems that led to the financial crisis by offering simpler products directly to consumers and providing more access to information. Third, it offers a market-based solution to the market and regulatory failures that anticipates the direction of fintech innovations. Finally, it argues that the thoughtful application of common law doctrines may be a more effective way to provide necessary consumer protections while allowing market forces to adapt to changing circumstances and emerging technology.

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