Video Performances
 

Most of the time I film student performances and make my money selling the DVDs to parents. Lately I've been getting more jobs from a College to video some of professional performances. So the College pays me $500 to shoot it for archival purposes. I've always assumed it wouldn't be right to then go and sell DVDs. But last night I had people who wanted to buy a copy, I asked the guy who hired me and he said sure. I was thinking if I had know this ahead of time I could have brought order forms and sold many more. It also made me think about whether the performers wouldn't like me selling copies but I have no idea what sort of agreement they have with the College.

I'm not afraid of being sued, I just like to conduct my business ethically and in the same manner as most professional videographers. So how do you do business in these situations?

Sorry, but you have to pick only one! ;)

Get everything in writing and up-front. Make it a standard part of your written agreement that you can/can't sell copies of the perormance. If you can't sell copies, charge them accordingly.

Are these performances of material that you have the rights to record and distribute? If the college is performing Neil Simon's Odd Couple, you can't sell (or even distribute for free) copies of the performance, unless the college has secured and paid for those rights.

I've done videos for schools twice. In both cases I asked for a copy of the school's video license and in every case it was very clear that the school could pay a videographer but the video was only to be sold by the school to the cast members, crew and families of same. The licenses were also clear that the school was responsible for ensuring the "Home Use" usage rights were communicated and there was verbage about under no circumstances could it be published on the web.

I inherited this gig from a colleague who retired, so the first go round I didn't want to do anything to rock the boat. I was so happy to get paid a flat fee because selling DVDs is a pain in the butt and you never know how much you'll make. So I didn't want to make it seem like I wanted to get paid in that way. The other thing is each performance can vary greatly but they are usually dance or music. In this case a St. Patrick's fiddle and dance, that happened to be all professionals which lead me to this question. Next time I'll ask if I can sell copies and write it into the contract.

If you're simply shooting for the school for a flat fee and turning over the footage to them after the event, it's a work for hire and they are the ones that have to deal with any rights and licensing issues that might come up. But if you're putting it together into a finished production and selling copies on your own, you run the risk of opening up a whopping big can of worms regardling copyright and licensing. Your activities would NOT be covered by any licenses the school has, more likely than not. If they are really professional performances you will likely sooner or later run into issues with the unions they belong to as well. The marginal revenue you might make from the relatively few copies you sell may prove to be not worth all the hassle and expense involved.

You would also need to make sure that all the performers sign release agreements and that the audience members are notified that they are being video taped and that the video may be sold so that they are aware that their likeness could be sold. Most of the time the tickets can contain a statement to the effect and that would usually serve as your release agreement with each audience member.

Most school productions and shows have a standard release form that either the performer or their guardian in the case of a minor, must sign to participate in the show. It usually has some language to the effect that they are aware and agree that their likeness and their performance can be used and sold for profit and that the rights to the performance become the property of the school or to the entity the school designates. Then you need to make sure your agreement with the school covers the fact that you will own the rights to the video taped performance and that you can sell the performance for a profit.

You still need to deal with the issues surrounding copyrights on the material being performed. If you're taping a stage play, a dance number, or a band performing music the authors of the play, the composers of the music, and their respective publishers own the copyrights to the material. The school will (should have) have purchased licenses for the performance rights but that doesn't necessarily give them the right to video it. Even if they have properly licensed the material and their licenses do permit filming, those rights are not transferrable to a third party which means the school cannot give permission to someone else to film the performance and sell copies. You need releases from people appearing, of course, but even more importantly you need licenses from the owners of the copyrights to all the material being performed.

Update:
You guys were right about the dangers associated with selling DVDs of professional performances.

Yesterday I was contacted by college director who hired me. He said the lead performer found out people had requested the DVDs of the performance. He said under no circumstances would he allow it. Not because of the money, but because he said videos don't capture the quality of a live performance. The funny thing was the people making the requests were the other musicians and dancers in the performance who wanted a copy for their own purposes. While I think its crazy because the video is not intended to compete with a live performance, I'm not going to jeopardize my job and will do as requested by the band leader and not sell any copies under any circumstances.

That sort of thing happens all the time. A friend of my wife is in an amateur choral music society that puts on an incredible concert each Christmas. I broached the idea last year of shooting a DVD and recording one of the performances. The director said that because some of the musicians were professional, even though they could perform in the society's concert without pay, if it was recorded, even just for the performer's own use, it came under the union's jurisdiction and all sorts of pay and workrules issues kicked in.

You'll get this a lot. These people spend a lifetime perfecting an artistic skill. Sometimes they have a bad night and the last thing they want is that to be memorialized. Also, as you say, they want their product recorded under ideal conditions usually. They're adamant about this mainly because of peer competition.

Sorry, but that's not correct. "I did it for someone else" (or, "My boss made me do it") is not a defense to copyright infringement. Unless the school's license expressly contemplates making an archival copy of the production (and some do), this is unauthorized copying and distribution.

Does that extend to regular empoyees as well, say an employee of a photocopying service who has been directed by his boss to make a copy of a copyrighted image as part of his normal scope of work? Who is liable for the infringment, the employee or the employer?

A "regular employee" typically will have the defense that he was told to do it by the boss (respondat superior is the legal term, meaning the buck stops at the boss). This is why employers take great lengths to "educate" employees about misconduct and should act quickly to enforce policies, so they can show they tried to avoid problems as a defense. It allows them some defense to a rougue employee. The facts can get complicated.

When it's a contractor/subcontractor, guess who is the boss? While you can point back to the client, it's problematic, as hiring an "expert" suggests that that expert will know and follow applicable rules and regulations in their area of expertise... YMMV. If you get in a position lawyers and judges are sorting it out, it's too late, and your odds are better in Vegas...

Better safe than sorry, within reason. It's truly sad that something which in theory should be a mutually beneficial situation becomes a conflict of "rights", but that's life in "these" United States. Maybe when the performer has that "perfect" night he/she will be sorry that it wasn't captured for posterity...

The pendulum swings both ways... it's important to protect IP/economic interests against piracy/theft, yet too much restriction upon "use" and it kills the perceived value of the product to the "audience" (which includes the performers and ultimately the IP holder)... there must be a balance, or everyone loses.

Does anyone think the decline of the music industry and the agressive enforcement efforts of the RIAA are UN-related?? People, industries, or organizations perceived as "prima donnas", bullies or "bad neighbors" don't usually find themselves prospering from their "bad citizenship". The reverse is true most of the time...