Asked & Answered: Video/Film/recording performances of plays.
Q: I work in educational theater. Every year we revisit the same topic: Filming performances. I keep telling the director and others that it is simply not legal to record a performance. The response I always hear is that they never sell the film. They are only making an “archival copy” which is given to the cast. I know it's illegal. I know it's specifically banned in the contract that the director signs. I've heard rumors of schools getting busted with huge fines, because clips showed up on You Tube. But I have no proof. What are the potential penalties? Are people schools really getting sued? Help me convince these people that they should stop.
A: It's irrelevant whether they sell the film. They're making and distributing copies of a derivative work of the play. That's copyright infringement. It doesn't matter if money changes hands. It's NOT “archival” (which isn't permitted anyway, under most licenses from play publishers).
The penalties for violations of these rules can exceed $150,000 per infringment, and each copy of the offending product can be considered an infringement. So, with a cast of 10, each receiving a copy, you're talking about as much as $1.5 Million dollars. (that's enough to put most school districts in a serious bind).
Schools and nonprofit organizations are sued ALL THE TIME over this kind of thing. They usually settle, so there's little media coverage… but it is happening. It's not just because videos wind up on the web….The major play publishers have ‘spies' everywhere, and they're reporting violations all the time.
Bottom line: It's illegal, it's a breach of the license agreement, and can be very costly. Also, once a play publisher catches you, they will put you on their blacklist, and never authorize another production again.
This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for readers’ detrimental reliance upon the information appearing in this feature.
Thinking of Producing it yourself? subscribe to my FREE e-course “6 ways to Finance A Feature Film” by visiting https://firemark.com/minicourse
Just a follow-up question b/c this came up in a discussion with my fellow faculty last week. How and why is this copyright infringement? My understanding (from royalty contract discussions) was that people believed that a video of a production would cause potential audience memebers to not see a live show, thus impacting ticket sales and royalty rates, b/c they watched a video instead. If the video is archival and is not available for anyone in the public sector to view, therefore not impinging on their seeing a show, how has copyright been violated? How is that any different than owning a published version of the script? The authors have received their royalty check; they have not lost any money, public credit, or prestige. As a director, my artistic work is also protected, so how am I infringing by keeping a private record of my own artistic work? I find it all somewhat confusing, so any clarification that you can provide is greatly appreciated! Thank you for your time and knowledge.
Sincerely,
Angela
Thanks for your follow up question, Angela.
Nature of Copyright Protection
Copyright is a actually a bundle of rights, belonging exclusively to the author. Specifically, these are the right(s) to:
1. Make copies of the work
2. Distribute copies of the work
3. Display the work in public
4. Perform the work in public
5. Make derivative works
Rights may be subdivided
Each of these rights may be licensed separately, and can be subdivided by media, territory, time, etc. So, for example, your production of “The Great American Musical” might be licensed by the authors for a production (live performances only) during the 3rd and 4th week in June, at your theatre in “anytown USA”, while the authors retain the right to license other productions, elsewhere, at other times.
Recording exceeds the scope of production agreement
Typically, the production agreement works just this way, granting a limited right (to perform the play), for a limited time (dates specified), at a particular place (theatre named in the contract). All other rights (including 1,2,3 & 5 above) are reserved to the authors.
When you make a video recording, you are making a derivative work (#5) (i.e., a recorded embodiment of a particular production of the play), which constitutes a copy (#1) (duplication) of the text of the play, and by sharing that video (either by posting online, or circulating DVDs to cast, crew, parents, etc.), you are distributing (#2) copies of this unauthorized derivative work.
So, video (or other) recording of a a play performance is copyright infringement because it exceeds the scope of what was authorized.
When you purchase a published version of the script, you are granted only the right to possess that particular copy (the making of which was authorized by the copyright owner). You are not granted the right to copy, distribute, perform, display or make derivative works.
When you make a video or recorded version, the authors HAVE, in fact, lost an opportunity to license you or others to do so. (which they are free to refuse).
It’s not entirely about money, but also about control over how the work is used, by whom, when, where, etc.
The question of “archival” video comes up frequently, and all I can say is that the rights holders have the right to grant or deny such permission. Although you likely have the best intentions in creating such an archive, your successors may not, or may simply not know that the video isn’t for public consumption. So, most rights holders err on the side of caution, and refuse to grant such licenses. Sadly, this is a rule that (I suspect) is honored more in its breach, than in its observation.
“…control over how the work is used…” and the Happy Birthday song is now ruled invalid.
It’s mostly about rich copyright holders and lawyers who game the copyright thing to mint money. The artists are either already dead and get little of it. These greedy people need to chill when it comes to a kid/parent simply trying to keep a memory of growing up and education. Fair use.