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Say that Dave the director really likes Keanu Reeves in John Wick, and wants a character just like that for his original movie. But Dave can't get Keanu, copyrights to the character, or anything official. So Dave hires Beanu Beeves, a look-alike, and tells him to act similar to John Wick for Dave's own original movie. The movie is completely original, but Beanu Beeves is clearly trying to act/look just like John Wick, and Dave openly directs him as such. But to be clear, the character isn't John Wick. It's like if I told you to do a gruff voice "like batman". I'm not asking you to be batman for my movie, just do that gruff voice.

Is this legal, or grounds for a lawsuit? It's not parody per se. But it's not outright stealing either (e.g. it's not like explicitly putting Woody from Toy Story in my movie). It's more like "inspiration" I'd say. Actors all the time say that they took inspiration in their performance from others. So is this mostly fine?

For a topical related example of this: there's a controversy with OpenAI where it's seemingly the case that they directed an actress to do her best impression of Scarlett Johansson in the movie "Her". Johansson got angry and threatened legal action. AI voice spoofing considerations aside, is it illegal to explicitly try to give a similar performance?

Another example is in Bayonetta 3, where the original VA (Voice Actor/Actress) for Bayonetta was no longer on the project, but said that the voice she created for Bayonetta was a product of hers, and that she took issue with the new VA they brought on to imitate her Bayonetta voice.

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    I assume that "VA" in this context means "voice actor" but it is best to spell out all acronyms at least once in a post.
    – ohwilleke
    Commented Jun 11 at 17:34
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    @ohwilleke I find it silly that you follow this rule and point out that "AI" stands for "Artificial Intelligence" in your answer, and yet use N.B., without defining the acronym (which stands for "nota bene", a latin phrase >.<). Anyways, I'm just being silly. I too agree acronyms should be defined for their first use (it's usually a pet peeve of mine). Thank you for your fantastic answer!
    – chausies
    Commented Jun 12 at 3:00

1 Answer 1

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Short answer

Is it legal to hire an actor to imitate another performance (to which you don't have the rights)?

Yes. This is probably legal in the context described in the question's fact pattern under U.S. law.

While the answer to this question is close to as clear as it gets in all but the most elementary of intellectual property fact patterns, however, the legal analysis that gets you to this conclusion is somewhat involved if it is fully spelled out.

N.B. I qualify my assessments throughout this answer because intellectual property infringement determinations are made on a case by case basis in a highly fact intensive manner by the finder of fact, a jury in a jury trial or a judge in a bench trial, and the legal standards that apply are malleable and subject to considerable interpretation. Outcomes in a particular case can't be predicted with perfect accuracy even if you have a perfect knowledge of the relevant law. To some extent, this is an intentional design feature of copyright law and other forms of intellectual property laws.

Long Answer

This is probably not an infringing derivative work

Arguably, the new film could be a derivative work. In U.S. copyright law, the meaning of the term derivative work, the preparation of which can constitute copyright infringement, pursuant to 17 U.S.C. § 106(2), is defined as follows at 17 U.S.C. § 101:

A "derivative work" is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work".

The US Copyright Registrar's Office provides guidance regarding what constitutes a derivative work in its Circular 14: Derivative Works which states:

A typical example of a derivative work received for registration in the Copyright Office is one that is primarily a new work but incorporates some previously published material. This previously published material makes the work a derivative work under the copyright law. To be copyrightable, a derivative work must be different enough from the original to be regarded as a "new work" or must contain a substantial amount of new material. Making minor changes or additions of little substance to a preexisting work will not qualify the work as a new version for copyright purposes. The new material must be original and copyrightable in itself. Titles, short phrases, and format, for example, are not copyrightable.

What is sufficient to constitute a derivative work is analyzed at length in the law review article, Amy B. Cohen, "When Does a Work Infringe the Derivative Works Right of a Copyright Owner?" 17 Cardozo Arts & Ent. L.J. 623 (1999).

In particular, it is well settled that mere similarities in theme or in common plot devices are insufficient to find copyright infringement, because copyrights protect "expressions of ideas" and not ideas themselves. See, e.g., Kustoff v. Chaplin, 120 F.2d 551, 559-60 (9th Cir. 1941); Harold Lloyd Corp. v. Witwer, 65 F.2d 1, 27-28 (9th Cir. 1933); Roe-Lawton v. Hal E. Roach Studios, 18 F.2d 126, 128 (S.D. Cal. 1927).

In this case, when there is an original screenplay and the only similarities are the acting style and the use of a similar looking actor and a similar genre, however, the similarity is probably too remote from the source work to constitute a derivative work that could support a derivative works based copyright infringement lawsuit.

Additional defenses to copyright claims

Parody is one highly effective subset of a fair use defense to a copyright claim (and probably a defense to the other kinds of intellectual property claims discussed below as well). But "inspiration" is not parody for fair use purposes.

"Inspiration" is, however, sometimes protected by the scènes à faire doctrine, which provides that copying something that is a genre convention isn't infringing for copyright purposes. The acting style of Keanu Reeves playing John Wick is itself arguably heavily influenced by the "film noir" genre, or more specifically, one of its modern genre iterations known as "neo-noir".

This probably does not violate Keanu Reeves' right of publicity

Another possible intellectual property possibility is that it violates the "right of publicity" of Keanu Reeves, which entitles him to compensation for use of his likeness, voice, etc. for a commercial purpose.

The right of publicity is a product of state law, however, and varies materially from one state to another. The strongest right of publicity protections in the U.S. are in California, where these rights are codified at California Civil Code section 3344. The core substance of this statute (omitting much of the detail on the exact nature of the damages that can be awarded, definitions not applicable in this case, and exceptions that don't apply in the original screenplay case in the question) is as follows:

Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent . . . shall be liable for any damages sustained by the person or persons injured as a result thereof.

The question has a California tag, but still doesn't include enough facts to evaluate confidently which state or states laws would apply to a right of publicity claim in this fact pattern. Determining which state's law or states' law applies to a case is a perennial difficulty in right of publicity cases that involve widely distributed media.

But since this is really Beanu Beeves and doesn't actually involve any depiction of Keanu Reeves, and since a mere acting style generally can't be protected as intellectual property, there is probably no right of publicity claim under any potentially applicable U.S. state's right of publicity in this context.

AI voice spoofing compared

An artificial intelligence (AI) version of an actor is on thinner ice, since there is no other real person being depicted (even if the other person is chosen to be similar). Casting someone who looks similar and directing them to provide a similar performance is not the same legally as techniques like AI voice spoofing.

AI voice spoofing, almost by definition, requires that it be based on the spoofing target's actual voice and doesn't add an independent person's voice (even if it is similar) to the mix the way directing a different person to try to use a similar voice does.

The first U.S. statute to directly address AI voice spoofing is the Ensuring Likeness, Voice, and Image Security (ELVIS) Act of 2024 in Tennessee. Federal right of publicity statutes to address this and other right of publicity issues have been considered but not enacted.

In U.S. states other than Tennessee, this issue is addressed by court interpretations of existing rights of publicity under state law, either enacted by statute or arising as a matter of common law.

This probably doesn't infringe a trademark

There could conceivably be a trademark claim too, if some mannerism or expression was so strongly associated with a film or actor that it acquired "secondary meaning" associated solely with the film or actor in the minds of the public.

The core of trademark law prevents people other than the trademark holder from using a trademark to mislead someone about who a good or service is affiliated with, although the scope of trademark protection is somewhat broader than that and some of the issues are particularly muddled in the context of a claim that a pose or voice is protected by trademark law. But not all uses of a trademark without permission of the trademark owner are infringing.

A trademark infringement claim is also a stretch in this case. No part of the acting style of Keanu Reeves in the John Wick movies is so distinct, or so singly associated with Keanu Reeves personally, that it would be likely to constitute a trademark.

The most distinctive part of the John Wick character, that would arguably be a signature trademark of the John Wick movie franchise, would be the extreme importance that the John Wick character assigns to his dogs, Daisy and a later an unnamed dog, and his willingness to go to extreme lengths to seek revenge for harm done to his dogs. But, this is probably too amorphous a concept to be protected by trademark law.

Making another film using the same "revenge for harm to the dog" plot device would also probably not make the new film a derivative work for copyright purposes. Instead, this would probably be viewed as an homage to the John Wick movies which does not infringe the copyright for those movies, because a true homage is either fundamentally not a copy, or constitutes fair use, which is an affirmative defense to a copyright infringement claim established by 17 U.S.C. § 107. See also Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994) (in which the U.S. Supreme Court holds that a work can be "transformative" and non-infringing, rather than derivative and infringing, under the fair use defense, when it "it uses a source work in a completely new or unexpected way.").

A replacement actor's imitation an original actor is probably legal

Another example is in Bayonetta 3, where the original VA for Bayonetta was no longer on the project, but said that the voice she created for Bayonetta was a product of hers, and that she took issue with the new VA they brought on to imitate her Bayonetta voice.

The copyright for a voice actor's work in connection with a video or radio production is almost always the producer or production company's property and not the property of an individual actor under the work for hire doctrine. So the original voice actor would not have a copyright claim.

The original actor might have a right of publicity claim (although it is likely that this was contractually waived in connection with the contract for the original performance), but the original actor would generally not have a right of publicity claim if the new work merely has a different person imitating the original voice actor's voice.

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