In his classic 1980 song “On the Road Again,” Willie Nelson articulates that “the life [he] love[s] is making music with [his] friends.” This affinity for the life of a traveling performer likely has little to do with his authorial rights under the Copyright Act. However, as this Note demonstrates, Mr. Nelson indeed benefited from favorable authorial rights when compared to other types of performers, beyond the rights he acquired as the song’s writer. Specifically, the current law around the default authorial rights of performers provides greater protection to performers of sound recordings than it affords to visual and audiovisual performers.
Intellectual property scholar Justin Hughes has explored this differential in copyright authorial protections in what he labeled a “[t]hought [e]xperiment[ ].” In his experiment, Hughes compared the authorial protections afforded to musicians with those afforded to actors while minimizing all other creative contributions to the point of nullity. This Note seeks to expand on Hughes’s thought experiment. Namely, it examines the law surrounding the default authorial rights of photographic subjects, actors, and musicians. This examination demonstrates that both actors and photographic subjects receive disproportionately minimal authorial recognition when compared to musicians. This Note then argues that the minimal default authorial protection afforded to actors and photographic subjects does not honor their labor rights. Further, it argues that the best way to correct the discrepancies between the authorial rights awarded to performers in these different fields is to expansively apply the doctrine of joint authorship.