Can actors use their scenes in a casting reel without being liable for copyright infringement? BAIN v. INDEPENDENT

A creator of a new work of expression is granted a copyright to that work when it is fixed in a tangible medium. This means that when a photographer takes a picture, the photographer is automatically granted a copyright to that photograph. The owner of a copyright is granted the exclusive right to reproduce, distribute, display, perform, transmit and make derivative works based on the original work. If someone other than the copyright owner attempts to exercise on of these exclusive rights, that can be considered copyright infringement. A copyright owner can combat copyright infringement by filing a complaint in a Federal District court.

The rights granted by copyright law do have some limits. The purpose of copyright law is to promote the progress of useful arts and science by protecting the exclusive right of authors and inventors to benefit from their works of authorship. Sometimes the interest that the public has in a copyrighted work out weighs the interests of a copyright owner. In these cases, a defendant in a copyright infringement lawsuit will be excused from liability.

A fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. Fair use is a defense to copyright infringement. A copyright defendant that demonstrates to a court that their use of the copyrighted work is a fair use would not be liable for infringement.

When a court is presented with a fair use defense the court will apply a test with several factors to the facts of the case to determine whether the defendant’s use constitutes a fair use. The four factors judges considers in a fair use defense are: (1) the purpose and character of your use (2) the nature of the copyrighted work (3) the amount and substantiality of the portion taken, and (4) the effect of the use upon the potential market. This inquiry can often be fact specific, therefore it is useful to study prior court decisions to understand how a court will apply the fair use factors to future cases.

BAINv. FILM INDEPENDENT, INC. 18-CV-4126 (C.D.CA 2020) illustrates a case where the use of clips from a movie were found to qualify as a fair use.

Plaintiff owns the copyright for the motion picture Nowhereland. Defendant Jessica Haid acted in the Film. After the Film was screened but before a commercial release, Haid retained Defendant LA Media to edit scenes from the Film to create an acting reel she could use to showcase her skills to casting directors. Haid shared a watermarked version of the Film with LA Media. LA Media removed the watermark and produced two versions of the acting reel for Haid, each under 4 minutes long. Plaintiff sued Haid, LA Media, and Film Independent for copyright infringement. On a motion for summary judgment, Haid contended that her use of the excerpts from the Film in her acting reel qualify as fair use.

In ruling on the motion for summary judgement the trial court reviewed the four fair use factors in turn. The court concluded that the purpose and character of the use favored fair use because Haid’s reel was transformative. The purpose of the reel was to further Haid’s career by showcasing her acting abilities whereas the Film’s purpose is to tell a story. The nature of the copyrighted work disfavored fair use because it was a fictional work entitled to broad copyright protection and it had not been released to the general public. The the amount and substantiality of the work used in relation to the work as a whole, favored fair use because Haid took no more than was necessary for her
intended use of conveying her acting range. Finally the court found that the fourth factor favored fair use. The court found that there was no reasonable probability that distribution of a reel would interfere with the profitability of or market for the Film because the reel and the Film serve different market functions.

Based on these findings the court granted Defendant’s motion for summary judgement.

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