But a performer need not operate the recording equipment to be an author of his own performance. See H.R. Rep. No. 94-1476, at 56 (1976); S. Rep. No. 94-473, at 53–54 (1975); see also 1 Nimmer on Copyright § 2.10[A][3] at 2-178.4 to 2178.5. Without Garcia's performance, all that existed was a script. To convert the script into a video, there needed to be both an actor physically performing it and filmmakers recording the performance. Both kinds of activities can result in copyrightable expression. See 1 Nimmer on Copyright § 2.09[F] at 2-165 to 2-171 (discussing Baltimore Orioles, Inc. v. Major League Baseball Players Ass'n, 805 F.2d 663 (7th Cir. 1986)).[1] Garcia's performance had at least "some minimal degree of creativity" apart from the script and Youssef's direction. See Feist, 499 U.S. at 345. One's "[p]ersonality always contains something unique. It expresses its singularity even in handwriting, and a very modest grade of art has in it something which is one man's alone." Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 250 (1903). To dispute this is to claim that Gone With the Wind would be the same movie if Rhett Butler were played by Peter Lorre.
- ↑ Professor Nimmer agrees with the first premise of Baltimore Orioles, namely, that a contributor of a copyrightable expression that's captured on video may retain a copyright interest in it. 1 Nimmer on Copyright § 2.09[F] at 2-166. That's because both the underlying human activity and the creative aspects of the video itself may be copyrightable. Id. Professor Nimmer disagrees with the Seventh Circuit's decision in Baltimore Orioles on the basis that the underlying human activity in that case (the baseball game) didn't contain any creative elements. 1 id. § 2.09[F] at 2-167 to 2-171. But Garcia's acting performance is clearly copyrightable subject matter. See Laws v. Sony Music Entm't, Inc., 448 F.3d 1134, 1142 (9th Cir. 2006) (citing Fleet v. CBS, Inc., 58 Cal. Rptr. 2d 645, 651 (Ct. App. 1996)); 1 Nimmer on Copyright § 2.09[F] at 2-170 n.85.
