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Q: An obscure actor appears in a 30-second TV commercial in 1966. In 2009 he wants to put the long-forgotten commercial on his Website. Any reason why he shouldn’t be allowed to do this?
A: Like posting a copyrighted work on YouTube, the actor’s posting of the TV commercial on his Website would likely violate copyright law. Accordingly, the actor should attempt to obtain written permission from the copyright holder before posting the commercial on his Website.
As most actors know, the Copyright Act protects audiovisual works, including television commercials. Assuming proper initial notice and registration, works published or registered between 1964 and 1977 are automatically protected for 95 years. Thus, the fact that the commercial was made in 1966 does not exempt it from copyright law.
Because the commercial is likely protected by the Copyright Act, the copyright holder (which may be the producer or production company that made the commercial) has the exclusive right to control the reproduction and display of the work. Posting the commercial on the actor’s website would violate both of these rights.
Moreover, the actor’s posting of the commercial on his Website is not a “fair use” of the copyright simply because the actor appeared in the commercial. Instead, to assess whether the actor’s use of the commercial is “fair” under the Copyright Act, a court would consider a number of subjective factors, including (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion of the copyright work used; and (4) the effect of the use upon the potential market for the work.
While some of these factors may favor the actor, courts have not generally recognized a “fair use” defense to an infringement claim in this type of commercial context. Thus, there is a real risk that a court would find that the actor violated the Copyright Act by posting the commercial on his website. Such a violation could give rise to a claim for statutory damages and for the attorneys’ fees incurred by the copyright holder in enforcing the copyright.
Not withstanding the above, given the obscurity of the actor and the “long-forgotten” nature of the commercial, it may be unlikely that the copyright holder would ever discover the violation, let alone seek to enforce the copyright. Moreover, the actor could always remove the commercial from his website if the copyright holder were to object. However, given the above law, the actor does face some risk from posting the commercial on his website and should attempt to get written permission from the copyright holder before doing so.
Suann MacIsaac is a Partner at Kinsella Weitzman Iser Kump & Aldisert, a high-profile, L.A.-based entertainment litigation firm, and specializes in the areas of entertainment, intellectual property and general business litigation. She has successfully prosecuted and defended numerous cases involving claims for copyright infringement, trademark infringement, trade secret misappropriation, unfair competition, fraud and breach of contract. In addition to representing actors, studios, producers, photographers and others within the entertainment field, Ms. MacIsaac also has significant experience litigating matters within the video game industry, where she has represented both large video game publishers and independent developers. She was a central part of the litigation team that recently won a $13 million judgment in favor of Ubisoft Entertainment. Ms. MacIsaac has also handled a number of matters involving partnership disputes, and most recently helped settle a case on behalf of a Los Angeles real estate developer for a payment over $15 million based on an approximately $2 million investment.
The answers to legal questions provided by the lawyers of Kinsella Weitzman Iser Kump & Aldisert, LLP
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