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Old August 28th, 2005, 01:42 PM   #1
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Copyright issues for taping a school performance

I have been shooting video of my children's school music performances for a number of years for personal use, essentially "home movies."

As time passes, I have increasingly been asked to record these performances "for the school," for individual parents, and recently to record it for the purpose of the band boosters to sell to parents to raise funds. (I didnt do the latter--yet--but Im thinking about it--which is the topic of this post.)

I was also asked recently to record the audio portion of a student performance for a local university. They intend to make copies to give to the student performers, and I would simply hand a single audio CD to the school and they would handle it from there. (No charge from me or the school.)

I have noticed a growing cottage industry around taping school performances, and selling the video or CD at a table in the lobby, particularly at bigger venues, like summer music camps, and county-wide or state-wide honors performances. It appears in most of these set-ups the recordist takes orders, collects funds, produces and delivers the final product to the parent or student, and passes a per-unit portion of the sales to the school or the booster organization.

I suspect that in most instances this is being done without any thought toward copyright issues. Can anyone shed light on how this is typically (or should be) handled? Life would be easiest to assume the school, in purchasing the music and hosting the performance, has the responsibility to oversee that taping as I have described is appropriate.

Does the responsibility change depending on the nature of the arrangement? For example, if the school takes orders and delivers the disc to the students, and the videographer delivers a bulk of DVD's to the school--ie the videographer's customer is the school and not the "end user" -- is it different?

It would seem local music educators as much or moreso than anyone else should be keenly aware of and abide by copyright laws. The last thing I want to do is solicit business from schools and what I would be proposing be illegal.

Any ideas? Anyone out there doing this sort of business now?

Thanks,

Eddie
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Old August 28th, 2005, 04:11 PM   #2
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I suspect the answer will be found in the copyright notices on the pieces of music or scripts being performed. With our operas, for example, we always obtain the right to make archive video and audio recordings. But this is not at all what you're describing; they are very carefully controlled. We definitely don't sell them for fundraising! They are available for study by staff, cast and sometimes colleagues at other companies, but strictly on a loaner basis and before giving a copy to anyone they must sign a legally binding agreement. In addition to saying they won't reproduce the videos, the borrower also assumes all financial responsibility for any damages incurred as the result of third party use of the video while it's in their possession.

In our case, the only exception is that we can use a maximum of 3 minutes (IIRC) video for promotional purposes. In the case of a professional company you're not only dealing with the copyright issues, but also those of the artists, stagehands, director, designers.... and the line of people with outstretched hands goes on down the block ;-) We have negotiated special deals where we're permitted to do local PBS audio broadcasts, but video is a whole different ball of wax.

I can't imagine that it would be legal to sell copies of your videos without the permission of all the copyright holders of all the program selections they contain. Yeah, I know "everyone does it" though - my daughter is an actress and has a shelf full of these kinds of tapes. Personally I'd be a little worried to do this anymore, depending on the material involved. The publishers of musical comedies, for example, guard their rights very jealously and long before the internet they hired clipping services to see which small town schools were producing their plays without paying royalties.

If you're determined to do this for anything but home use (and I suspect that is strictly forbidden as well in most cases - the school shouldn't allow you to bring a video camera to the show) you really need to do a little research. But it's a lot safer to just let someone else take those kind of chances.
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Old August 28th, 2005, 11:39 PM   #3
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Just about impossible to do professionally until Congress addresses these issues. Which will not happen as long as big business controls the country. But certain types of shows have "performance recording rights" available, up to the school to contract for them when they rent the scripts.
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Old August 29th, 2005, 01:54 PM   #4
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My local school district has posted signs in the high school auditorium that say, per district policy, all video taping and recoding of performances is forbidden under copyright law. Announcements are also made at other district performances -- and then they let parents do what they want. I presume the signs came as a result of advice from the district's counsel.

There are a lot of complicated issues here. Student performers may have certain rights (unless released), parents get concerned about the use of their children's image, the material performed could be subject to any number of contractual restrictions distinct from plain ol' copyright rules.

Music Theatre International (www.mtishows.com) is one of the leading, if not the leading, liscensor of musicals to schools. A quick call to them (they are very approachable) might give some idea what the standard practices are.

Just take a look at the rules (http://www.lesmizschooledition.com/default_HOME.asp) for the school edition of Les Mis.
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Old August 29th, 2005, 10:51 PM   #5
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Bob Costa's answer is right on the money, in all respects. Unless the license provides otherwise (and some do), making a videotape of a school performance constitutes making an unauthorized copy and also preparation of a unauthorized derivative work. Giving out copies (whether or not sold) is unauthorized distribution.

Though I'm not aware of anyone who has been sued for doing videos of school performances, there is at least one rather celebrated case in which a New Jersey high school was sued for putting on an unlicensed performance of Jesus Christ Superstar. As I recall, the damage award ran into six figures. I'm not suggesting that a parent is necessarily going to get sued for bringing a camcorder to their kid's production of The Music Man. I'm merely pointing out that (1) it's a violation of copyright, and (2) "but it's just high school" isn't a defense to infringement.
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Old August 29th, 2005, 11:01 PM   #6
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Well gee, I am glad I stopped writing when I did.

Paul, wouldn't a PARENT's video recording fall under some fair use / personal use exemption, as long as they don't make copies for distribution? I understand that the school can't allow/sanction recording, but are the parents really violating any law if they just make a copy for their own use?
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Old August 29th, 2005, 11:07 PM   #7
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A parent's videotape of their child in the high school play would, almost certainly, constitute fair use, I think -- traditional fair use analysis supports it. Moreover, as it's an equitable doctrine, it's difficult to imagine a judge writing an opinion holding that it was not fair use and the parent was therefore liable for copyright infringement. As you start descending the ladder in the direction of professional production, however, it becomes murkier.

Is it fair use if the parent makes copies for their child's friends? Probably.
For the entire cast? Hmmm. Maybe.
For the entire school? I doubt it, though I've seen it done.

How about if the parent charges money for copies? Possibly -- depends on how many and under what circumstances.
How about if a local professional videographer comes in and produces the tape? That's where it becomes a problem. It still might be fair use -- hard to say -- but it would be a much tougher defense.
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Old August 30th, 2005, 07:38 AM   #8
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Just to clarify, I am talking about recording a performance of music by a band or orchestra, not musical theater or dramatic performance. Dont know if thats different, but the answers seem to dwell on musical theater.

Thanks again,

Eddie
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Old August 30th, 2005, 07:53 AM   #9
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Paul,

I would like to ask you some questions, and get your opinions.

We have had threads all over the place lately dealing with copyright issues. Images in bars, music in wedding DVDs, and school productions with all the many issues there. Many threads, with many questions.

You are in a unique position, being an IP attorney, and I would like to know what your opinion is on the current state of copyright laws. I hope you can spare the time to address this.

1. With all the new technology, are the laws outdated and in need of change?

2. Do you think that they are far too complicated, even for most attorneys, you excluded of course?

3. What percentage of people on this forum, and in this country do you think have violated copyrights?

4. What would you like to see changed if anything, and what do you think will be changed?


Thanks in advance for your time, and I always look forward to reading your posts. They are always interesting and informative.

Mike
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Old August 30th, 2005, 09:25 AM   #10
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Eddie,

Music can be different.... if the school was playing Mozart from the original text then the composition is in the public domain. To sell the CD they should still have the signed consent of the performers, or in this case their parents because they are minors.

The trouble is that almost no high-school school orchestra plays from the original text, so they are likely playing an simplified arrangement of the piece that someone controls the copyright for. And if they are playing arrangements of modern pop tunes, you are totally out of luck.

At the very least I would put an agreement in writing with the school that you are providing an archive copy only, and that you do not support it's use in any copyright infringement. Get a lawyer to put an hour in for you and try to remove yourself from the equation of any potential lawsuits. It may be impossible though, if you do actually know that they are using it for copyright infringement a signed document saying otherwise may not help you.

Remember, ASCAP once sued a scout camp to pay royalties on the songs that kids sang around the campfire. I am not kidding, and niether are they. No matter how unlikely it seems, the potential for a lawsuit exists. There is a great chance that they would only go after the school, but in that position I would do myself the favor of having the insurance policy of a written agreement.
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Old August 30th, 2005, 10:58 PM   #11
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Quote:
Originally Posted by Mike Teutsch
Paul,

I would like to ask you some questions, and get your opinions.

We have had threads all over the place lately dealing with copyright issues. Images in bars, music in wedding DVDs, and school productions with all the many issues there. Many threads, with many questions.

You are in a unique position, being an IP attorney, and I would like to know what your opinion is on the current state of copyright laws. I hope you can spare the time to address this.

1. With all the new technology, are the laws outdated and in need of change?
I don't think the laws are outdated. I do think judges need to better understand the technology. I also think Congress needs to stop passing laws to please large commercial interests -- the DMCA is a perfect example, as is the "Mickey Mouse" copyright term extension. These kinds of laws do not benefit the American people.

Quote:
2. Do you think that they are far too complicated, even for most attorneys, you excluded of course?
I don't think so. Law is complicated because it mirrors society, and society is complicated. Our common law system is particularly well-suited to handling exceptions and niche doctrines, to accomodate new and developing factual scenarios. However, this also means that the law gets more difficult with each passing year. It is very, very rare for me to encounter a purely incompetent attorney who, literally, doesn't understand the law. Off hand, I can think of only one in my career to date.

Quote:
3. What percentage of people on this forum, and in this country do you think have violated copyrights?
Probably everyone, including myself. ;)

Quote:
4. What would you like to see changed if anything, and what do you think will be changed?
Hmmm. That's a touch one for a quick reply. Okay, I'd like to see the DMCA repealed -- it's bad law, period. It's not that hard to tailor a law which would protect satellite television providers from piracy. It should not be illegal to make fair use of encrypted material.

I'd like to see a law which acknowledges that amateurs, and professional wedding and small event videographers use commercial CDs for soundtracks. I think a very strong argument could be made that this is fair use. However, everyone's life would be made a lot easier if Congress simply enacted a compulsory license to cover it.

I'd like to see the term of copyright brought back to no more than 50 years. The original intent of copyright was an incentive to creation, allowing the creator to keep exclusive rights long enough to profit from them, and provide for his/her family. 75+ years is, I think, ridiculous.

I'd like to see the penalties for infringement increased, particularly in the context of criminal copyright infringement. This is the only way to deal with piracy from China and other Asian countries -- stop it here, on the ground, by making it too difficult for the street-corner knock-off peddlar.

That's about all I can think of . . . at the moment. ;)


Thanks in advance for your time, and I always look forward to reading your posts. They are always interesting and informative.

Mike[/QUOTE]
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Old August 30th, 2005, 11:03 PM   #12
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Quote:
Originally Posted by Barry Gribble
Eddie,

Music can be different.... if the school was playing Mozart from the original text then the composition is in the public domain. To sell the CD they should still have the signed consent of the performers, or in this case their parents because they are minors.
If the arrangements are public domain, no consent of the performers is necessary. There is no protectable right in a live performance.

Quote:
At the very least I would put an agreement in writing with the school that you are providing an archive copy only, and that you do not support it's use in any copyright infringement.
Too late -- you committed copyright infringement when you made the recording, and a second act of infringement when you gave it to the school. Also remember that copyright infringement is a strict liability tort, meaning it doesn't matter whether you thought you were infringing or not, or whether you got an agreement that no one else would infringe. You're still liable for direct infringement and, quite possibley, contributory infringement as well.

Quote:
Get a lawyer to put an hour in for you and try to remove yourself from the equation of any potential lawsuits.
It can't be done. However, if the lawyer believes that what you are doing is non-infringing, and gives you a written opinion stating so, you have prima facie proof that the infringement wasn't intentional, protecting you from enhanced liability.

Quote:
It may be impossible though, if you do actually know that they are using it for copyright infringement a signed document saying otherwise may not help you.
Sorry -- you missed the point. YOU committed infringement when you made the recording of the protected piece of work. It doesn't matter what the school does with it, you're already on the hook.

Quote:
Remember, ASCAP once sued a scout camp to pay royalties on the songs that kids sang around the campfire. I am not kidding, and niether are they. No matter how unlikely it seems, the potential for a lawsuit exists. There is a great chance that they would only go after the school, but in that position I would do myself the favor of having the insurance policy of a written agreement.
A written agreement with the school provides absolutely no protection whatsoever.
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Old August 31st, 2005, 08:24 AM   #13
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There you go :)
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Old September 1st, 2005, 01:00 PM   #14
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I have nothing of merit to add to the conversation except to say thank you to Paul T for his sage advice -- It is a great service to us all.
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Old September 1st, 2005, 01:51 PM   #15
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Paul just said...

"Probably everyone, including myself." ...is guilty of some sort of copyright infringement.

And... "I don't think the laws are outdated."

So after every law-breaker is prosecuted criminally and put behind bars, we will have Paul's big-brother Orwellian society. I hope you don't run for congress.

Of course the laws are out-dated. You said the laws mirror our complex society but in this case they DON'T. At the very least, there should be some sort of distinction between "for broadcast" and "not for broadcast" use.
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