Patent & Trademark Office, Background and Summary of the 2012 WIPO Audiovisual Performances Treaty 2 (2012). Although the Copyright Office hasn't issued a statement of compatibility, it's hard to believe that it would sign on if it believed that the Treaty's key provisions are inconsistent with U.S. copyright law. In fact, the Copyright Office praised the Treaty as "an important step forward in protecting the performances of television and film actors throughout the world." U.S. Copyright Office, NewsNet: Beijing Audiovisual Performances Treaty (2012), http://copyright.gov/newsnet/2012/460.html. Except in the Ninth Circuit.
The Copyright Office's position is thus inconsistent at best. And, in any event, neither the Copyright Office's reasoning nor the authority it relies on in its letter to Garcia fare any better than the majority's. The Copyright Office would refuse copyright registration to an actor like Garcia because "an actor or an actress in a motion picture is either a joint author in the entire work or, as most often is the case, is not an author at all by virtue of a work made for hire agreement." However, Garcia isn't a joint author of the entire movie and didn't sign any agreements. She doesn't fit into either category. Like the majority, the Copyright Office would wish this problem away by refusing registration unless the copyright claimant personally recorded his performance. But nothing in the legislative history relied on by the Copyright Office (which concerned joint authorship of an entire film) suggests that a non-employee doesn't retain any copyright interest in a video clip of his acting performance because it's recorded by the film's producer. See H.R. Rep. No. 94-1476, at 120.
