UCLA Entertainment Law Review

The genre of documentary films has grown in both importance and audience reach over the past few decades, in no small part because of filmmakers’ reliance on the copyright doctrine of fair use. The expansion started after the passage of the 1976 Copyright Act and accelerated in the wake of the Supreme Court’s unanimous, landmark 1994 decision, Campbell v. Acuff-Rose Music, Inc., concerning a parodic rap-music send-up of a classic rock ‘n’ roll song. Over the years, a consistent body of case law evolved that provided a basis for making edit-room decisions about third-party content that filmmakers and their legal counsel could reasonably expect to be protected as fair use. Twenty-seven years later, the Court’s ruling in Google LLC v. Oracle America Inc. reaffirmed Campbell’s principles and the case law on which documentarians relied.

However, the Supreme Court’s recent decision in Andy Warhol Foundation for the Visual Arts v. Goldsmith raised important questions about the proper application of the fair-use doctrine. The Warhol case involved the licensing of a work Warhol based, in his signature style, on Lynn Goldsmith’s photograph of Prince, the iconic musician and performer. After the Andy Warhol Foundation (“AWF”) prevailed in the district court, the Second Circuit reversed, rejecting the claim of fair use. In its petition for certiorari, AWF raised only a single question: whether the Second Circuit erred in holding that the first statutory fair-use factor prescribed by section 107 of the 1976 Copyright Act favored Goldsmith.

The Internal Revenue Code (IRC) imposes an excessive income tax burden on many low- and mid-income performing artists. Low- and mid-income performing artists suffer a higher effective income tax burden than similarly situated taxpayers who are not performing artists and may also suffer a higher income tax burden than high-income performing artists. This inequity is due to a failure in the Internal Revenue Code, which has been significantly exacerbated by the Tax Cuts and Jobs Act (TCJA) passed in 2017.

This Article makes three key assertions: First, it shows that the IRC and the TCJA do not account for the unique employment structures of the entertainment industry, resulting in low- and mid-income performing artists having to pay income tax on more than their net income. Second, the Article uses stylized examples to show how current taxation of performing artists fails the standard benchmarks of sound tax policymaking. Third, the paper explores several possible solutions to the problem and calls for the passage of the Performing Artist Tax Parity Act (PATPA), which has been introduced with bipartisan support in Congress several times but has yet to pass.

Freelance dancers do not receive adequate workplace protections. This problem is largely attributable to two interrelated causes: the dancers’ inability to unionize as well as a choreographer’s inability to access sufficient funding. The inability to join existing performing arts unions leaves the freelance dancer with limited power to secure better protections. A shortage of sufficient funding opportunities available to choreographers inhibits a choreographer’s ability to improve conditions for his or her dancers. These unionization and funding problems must be remedied concurrently to establish adequate workplace conditions in the freelance dance industry.

A current bill in Congress, the Richard L. Trumka Protecting the Right to Organize Act (PRO Act), may provide freelance dancers with the ability to unionize by amending the National Labor Relations Act (NLRA) so that freelance dancers are captured within the NLRA’s definition of “employee.” The dancers’ newfound ability to unionize would alone be an insufficient and detrimental remedy to the problem, however, without simultaneously addressing the scarce avenues of available dance funding. The National Endowment for the Arts (NEA) provides a basis for increasing funding opportunities. The NEA once gave independent grants to choreographers through choreographers’ fellowship sand allowed for more widespread use of subgranting NEA funds. In response to controversial and obscene photographic works in the late 1980s, however, Congress eliminated choreographers’ fellowships and greatly restricted subgranting. This Comment argues that Congress must reinstate choreographers’ fellowships and expand eligibility for subgrants so that choreographers can gain access to the funding necessary to respond to their dancer’s needs and to create better working conditions in the freelance dance industry.