The team is joined by Guest Kats Rosie Burbidge, Stephen Jones, Mathilde Pavis, and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Hayleigh Bosher, Tian Lu and Cecilia Sbrolli.

Monday, 13 November 2017

Erasing Kevin Spacey: performers' rights to the rescue?

All The Money in the World
by Ridley Scott
Last week, film director Ridley Scott announced that the performance of actor Kevin Spacey will be removed from his forthcoming film 'All the Money in the World'. Spacey is to be replaced by actor Christopher Plummer, shortly before the release of the film on December 22, 2017. The entire film has already been shot, edited and made ready for distribution with Spacey portraying  J. Paul Getty. In fact, Spacey had already appeared in the official trailer made public a few weeks ago. This last-minute editing project raises  at least two questions: how will this be done, and how legal is this strategy in light of Spacey's rights as a performer?

How?
According to special effect specialist Johnathan Fawkner, a number of techniques can be used to edit Spacey out of 'All the Money in the World'. First, the production company could 'cut around' Spacey's character 'to minimize his screen time' and re-edit the scenes without him. Spacey's shots could also be replaced by scenes featuring Plummer in their stead, as it is often done in the context of stunt work. However, some scenes are set in the desert with a cast of thousands, which may prove difficult to re-shoot given the very tight timeline. For such scenes, the production company may have to digitally remove Spacey out of the shots and replace the image of his body with that of Plummer. To make this swap of performances appear smoother to the eye, the production company may look to only remove Spacey's head and have Plummer's face match his physical performance. Again, this technique is fairly routine and is often used to edit stunt scenes. 

How legal?
The idea of placing Plummer's head on Spacey's body in the film raises interesting questions in relation to Spacey's performers’ rights. Unlike stunt work, it is unlikely that the editing was foreseen and agreed on contractually by the actor (if Kat readers know better, do say!). Could Spacey object to it? Under US law, it seems extremely unlikely for the simple reason that the federal intellectual property framework does not provide for  performers’ rights. Unless Spacey manages to expand the scope of an appropriate state law cause of action to fit such a claim, which in this Kat’s view  would set a new precedent,  the shunned actor has no leg to stand on under US law. We only have to think 'Garcia v Google'  in support of this conclusion (see here and here).

What about France? We know since the Huston case (1991), French courts have allowed foreign claimants, who have failed in asserting a claim in the US to seek relief  on the basis of moral rights elsewhere, to be heard in France. This particular case had been brought by the heirs of director John Huston, who objected to the colourisation of his film 'Asphalt Jungle'. In this decision, the French Supreme Court declared:
Spacey's Getty's new face
(left: K Spacey ; right: C Plummer)
 "According to [French national laws], the integrity of a literary or art work cannot be [adversely] affected in France, regardless of the State in whose territory the said work was made public for the first time. The person who is its author, by its creation alone, enjoys the moral right stipulated in his favour by [the French Act of 1957]; these are laws of mandatory application." [see here for an English translation of a subsequent court of appeal case].

Could or should the same reasoning apply to performers' moral rights, which also exist under the French Intellectual Property Code (IPC)? If Spacey were to complain that Plummer's head was being transplanted onto his body digitally, could French national law be applied for the claim to be heard in a  French court? 

"A performer shall have the right to respect for his name, his capacity and his performance. This inalienable and imprescriptible right shall attach to his person. It may be transmitted to his heirs in order to protect his performance and his memory after his death." 

In fact, performers appear under French law to enjoy a moral right that protects not only the integrity of their performance, but also the integrity of their name and reputation as artists. This goes beyond the protection conferred to authors in France, where moral rights only serve to shield the integrity of  an author’s work and can never be extended to protection of the their own reputation as artists (Court of Cassation, civ 1st, 10 March 1993 "Affaire Association de la Fraternité Blanche Universelle", No 91-15.915).

The right of integrity was successfully used by singer Henri Salvador to prohibit the release   of a compilation of old records. In this dispute, the compilation at stake had not remastered the sound recordings that it re-edited;  the singer  alleged that the recordings of his past performances had done damage to  his reputation due to their poor quality (Court of Appeal of Paris, 14 November 2007, CCE 2008, No 18 Caron). This result shows how generous moral right protection for performers can be in France. 

Circling back to Scott's editing of Spacey's performance: could this amount to treatment detrimental to either the performance or the performer's reputation? It is possible. Although editing an actor’s performances is usual, as explained by Fawkner, it is rarely used to remove a star actor from the film. Such a result  could  be found even more troubling or detrimental to Spacey’s work or reputation if his body remains intact but his head given another face. In other words, Spacey may have a case here. 
Our spacey Kat does not like her new face

Could this  also be brought before a court France  by virtue of the Huston jurisprudence? Again, it is possible. French jurisprudence has drawn parallels in the past between the way author’s rights and performer’s rights are interpreted in order to bring about cohesion to intellectual property law.

What about the UK? 
UK law too confers performers with a right to object to derogatory treatments made to their performance (1988 CDPA, s. 205F). The scope of this right is similar to the French doctrine, as it sanctions any derogatory treatment to the performance that would be prejudicial to the performer's reputation. This may include putting another's face on one's body. However, it is unclear how far this right of integrity could be stretched in the context of performances; a restrictive approach has been followed in the context of authorial works (see Pasterfield v Denham [1999] FSR 168, Confetti Records v Warner Music UK Ltd [2003] EWHC 1274 (Ch)Harrison v Harrison [2010] FSR 25, compare with Tidy v Trustees of the Natural History Museum (1995) 39 IPR 501).

It is not at all certain that UK courts would interpret performers’ moral rights as applying to any foreign artist bringing a claim in the UK, as the Huston jurisprudence does in France. This Kat is inclined to conclude that UK courts are unlikely to follow the French result, because the moral right doctrine is a more recent development of UK intellectual property, and  was  introduced only in 2006 for performers (Performance (Moral Rights etc.) Regulations 2006, SI 2006/18).
One of the few scenes featuring Spacey in the film
by R. Scott which may be difficult to re-shoot


What about the integrity of Scott's work? 
One question nobody needs to ask is 'why' the last-minute decision to remove Spacey's performance from the film, given the recent allegations of sexual abuse reported in the press against Spacey. Still, one may wonder: is this ultimately about money or morality? 'A bit of both', said film critique Karen Krizanovitch to BBC Radio 4, as the director and the production company wish to both shield themselves from the negative publicity currently associated with Spacey as well as protect the  market value of the film at the box office. Indeed, the film has already been pulled from festivals and it risks being boycotted by viewers, according to Krizanovitch. 

Considering this, what if removing Spacey's performance is viewed  a creative decision to protect the integrity of Scott's work? Could Scott's moral right (at least in France or the UK) trump Spacey's claim of moral rights? Could the director invoke his own moral right to protect the integrity of his film (in France) or the integrity of his reputation as a film-maker (in the UK) to block a moral rights claim  by Spacey ? 

The French IPC is clear; authors' rights trump performers' rights in cases of direct contradiction such as this. Article L 211-1 reads:
'Neighboring rights shall not prejudice authors’ rights. Consequently, no provision in this Title shall be interpreted in such a way as to limit the exercise of copyright by its owners'.

Of course, Scott would still have to make the case that the allegations made against Spacey after the production of the film makes his continuing performance detrimental to the work. A stretch?

Concluding remarks
Going forward, it will be interesting to see whether the precedent set by Scott with this film will have an impact on the contractual agreements between performers and production companies. Are we to see new contractual practices, whereby performers will agree by contract that their performance may be removed in cases of a public scandal  that occurs between the completion of production of the film and its subsequent release? Perhaps. Still, such agreements will only be effective  in those countries where no performers' moral right in favour of a performer exists and/or where  such moral rights can be waived by the artist who enjoys them.

NB: This post is not to be read as undermining the very serious allegations raised against Kevin Spacey. It merely aims to explore the implications of editing decisions made in reaction to such allegations from the perspective of intellectual property law.


7 comments:

Perplexed said...

“NB: This post is not to be read as undermining the very serious allegations raised against Kevin Spacey. It merely aims to explore the implications of editing decisions made in reaction to such allegations from the perspective of intellectual property law.”

Sorry, but since when discussing someone’s rights equals endorsing that person ethically?! I find this disclaimer not only useless but also dangerous: self-censorship or restraint when neither is necessary.

Mathilde Pavis said...

@Perplexed, I hear your point but discussions on social media (and also sometimes in the news) have confused the two on more than one occasions. I felt it was worth stressing this to avoid going into this debate. So I do wish it is/was useless to insert that comment.

Andy said...

I think it is implicit in the whole process of how films are made that the director has the absolute right to decide what performance(s) goes into the finished film. Take, for example, the shooting of a single scene: the director shouts action and the actors act out the scene: the director shouts cut. The director then asks an actor to go again but altering his delivery or facial movements or some other feature of his performance. This could perhaps be repeated several times with a pernickety director. Which of these takes (if any) goes into the final edit is the decision of the director (perhaps on the advice of his editor). That is the performance which might possibly attract moral rights; the others are destined for the cutting room floor (metaphorically speaking, since most films are shoot digitally these days). I would argue that this author's right of the director exists right up to the time of the film's release and even beyond in some cases. It is well known that studio executives also have a say in how the final work will look, often against the director's wishes, and sometimes resulting in the director demanding his name is removed from the credits (google Alan Smithee). This intervention sometimes results in the subsequent release of a director's cut version of the film. All of this serves to strengthen the position of the director in the editorial process, and minimise the actor's performance rights, and by extension. his/her moral rights.
As for the possibility of a French court hearing a claim, surely this would have the effect of ensuring that the film would not be released in France.
The posting fails to mention one prevalent form of altering a film actor's performance: that of dubbing his/her words into a foreign language. This could result in some quite atrocious detrimental treatment of the original performance. Has anyone ever sued over that, I wonder.

And finally I believe that Article 19 of the WIPO Treaty on Performances and Phonograms effctively prevents any national court in a signatory country such as France from finding for a performer in circumstances such as described in Mathilde's posting: "Article 19 [Performers’ Rights in Films] Notwithstanding anything in this Convention, once a performer has consented to the incorporation of his performance in a visual or audio–visual fixation, Article 7 [Protection for Performers] shall have no further application."

Mathilde Pavis said...

Very interesting points. I am not all that sure that Article 19 include moral rights. Article 7 only outlines economic right. I read Article 19 as implying consent for the record of the performance and its release once the performance is incorporated in the film.

The more recent Beijing Treaty provides for moral rights and does specify that even if economic rights are transferred, moral rights are still applicable. (Article 5 [Moral Rights] (1) Independently of a performer’s economic rights, and even after the transfer of those rights, the performer shall, as regards his live performances or performances fixed in audiovisual fixations, have the right: ...(ii) to object to any distortion, mutilation or other modification of his performances that would be prejudicial to his reputation, taking due account of the nature of audiovisual fixations).

The same does mention that editing (and dubbing) which is part of the normal course of the making process of a film will not class as 'distortion' (footnote 5, page 6), which I think is a welcome clarification and supports your argument as well.

In relation to dubbing, obviously we have the Garcia case in US (though it is was not a case of mere translation into a foreign language) which did not go very for from the actress's point of view. In France we did have a very early case, where dubbing had been added to a actor's performance as an after thought after the shooting of the film. The performer sued at a time when performers' had not yet been introduced in France (end 1930s) and won in the first instance (no appeal lodged after that). I think the dubbing was in French language, so it was not a case of foreign language here either. The tribunal found that authors' and performers' should receive the same level of protection, especially with regards to moral rights. Of course, one case does not carry a lot of a weight in a jurisdiction not based on precedent but I thought the facts made it worth raising. (Case in question: Trib Seine, 23 avril 1937, Rigault dit Marnay c. Chaperot et Copelier : Le Droit d’Auteur, No 11 p 129, 130).

I understand that editing is routine, and even when it involves putting one's face on another's body, but here the motivation of the director are quite different, which is why I wonder whether a case would be at all possible. Hence the posting.

Andy said...

Thanks, Mathilde.

I forgot to check the Beijing Treaty, mainly because it isn't in force yet, but your point is well made.

Adrian Aronsson-Storrier said...

Thanks Mathilde, it is an interesting post. What do you think of an argument that after recent allegations Kevin Spacey now lacks sufficient reputation to succeed in the UK in an action to object to the right of derogatory treatment? This type of approach seemed to be floated as a possibility at the end of the Confetti Records judgment at paras 159 and 160.

Mathilde Pavis said...

Adrian - Oh that's a good question and twist on the argument! So you think that the allegations would damage the reputation of the performer to the extent that he would have no reputation to protect (with moral rights) in the first place? Do I understand your comment correctly?

I dont know if you could say Spacey has lost all reputation quite just yet. If the trend carries on like this, and allegations keep coming up, for sure Spacey's reputation will soon only become all about the sexual abuse, very little will remain of this acting reputation or 'Hollywood sweetheart' status. The argument that he has no reputation to defend... might be tenable then. Do you think we are there yet? In any case, I am not sure we should link the moral right doctrine to 'tabloid'/public opinion reputation that closely. I think we risk mixing IP law with questions that is outside the subject-matter it applies to. Then, what's the solution? Adopting a definition of 'reputation' specific to IP? Is that desirable? I am not sure. We need a case on this!

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