sync/mechanical/repro - portion of a number?

[Dave Stern]

I've taped a school performance and am in process of gathering the sync/reporo permissions for the numbers in the show so that we can put them on a disk.

Question (this is a US question) - if I'd like to include only part of that number on a disk, does that make the sync, etc. process any different? E.g. (a) not permitted b/c I'd only be doing a part of the number and the owner may not want that, or the owner would have to include that in their permission (b) same - request the sync rights and that would be ok for only part of the number, (c) something someone has figured out where if you use less than a certain # of seconds or % of material, then its generally viewed as acceptable without a sync license, or other some other doctrine.

I'd be very surprised if anyone found (c) to be a solution, given everything that happens with copyrights, permissions, etc., even for a few notes, but I just thought I'd give it a shot.

I don't think anything I'm doing in this case would qualify under fair rights, so I'm not even going to look at that for this (but someone would make my day if they found fair rights could apply in this situation and can say why. In our case, we are not really doing this for academic use, e.g. studies, so I don't think I can look to that as a reason).

Any thougts on this would be greatly appreciated....

[John Vincent]

Originally Posted by Dave Stern

I've taped a school performance and am in process of gathering the sync/reporo permissions for the numbers in the show so that we can put them on a disk.

For what? Sales to the kids, general public? Are you selling it at all (ie - just making copies of the performance for those who were in it)? What exactly did you tape - a musical?

Gotsta have all the facts...

john
evilgeniusentertainment.com

[Steve House]

It's an 'urban myth' that you don't need permission if you only use 'X' minutes or seconds out of the work so you can eliminate that one right there. If you use it, you gotta have permission except in the VERY limited circumstances where 'fair use' would apply (and this doesn't sound like one of them). And AFAIK, the rights you need aren't any different if you use the entire work or only a portion.

[Dave Stern]

thanks Steve, and I hadn't heard the urban myth, and those are so hard to rely on anyway. but your certainty in your response seems to confirm what I was thinking.

I can't see an argument that this is fair use, which is why I'm not really looking at that. I told the school committee that I don't think using a portion of a number would change anything about the rights that are required, so that unless I turned up something unexpected, that they'll need to sign the permissions (and pay) if they want me to put any of the content on a disk.

john - the show was a compilation by the music director of several different numbers (acutally about 10), each with different publishers / copyright owners. No $ was charged for admission, and we would not charge for the disk, and it would not be posted on the web. But, permissions are still needed, and the circumstances was some of the info I provided on the sync requests (in addition to # of copies we would make, etc.).

thanks very much for your responses.

[Steve House]

Originally Posted by Dave Stern

thanks Steve, and I hadn't heard the urban myth, and those are so hard to rely on anyway. but your certainty in your response seems to confirm what I was thinking.

I can't see an argument that this is fair use, which is why I'm not really looking at that. I told the school committee that I don't think using a portion of a number would change anything about the rights that are required, so that unless I turned up something unexpected, that they'll need to sign the permissions (and pay) if they want me to put any of the content on a disk.

john - the show was a compilation by the music director of several different numbers (acutally about 10), each with different publishers / copyright owners. No $ was charged for admission, and we would not charge for the disk, and it would not be posted on the web. But, permissions are still needed, and the circumstances was some of the info I provided on the sync requests (in addition to # of copies we would make, etc.).

thanks very much for your responses.

I am not a lawyer nor do I play one on TV ...

Hang on here. Unless I've misunderstood what you just said, I think theres a problem. The school can't grant you any synch or reproduction rights - that has to come directly from the copyright owner of the works performed - most likely the publisher and/or composer. Mechanical rights probably aren't an issue since it doesn't sound like you're directly copying another recording. The school licenses performance rights to the works but that doesn't not grant them reproduction rights and even if they did obtain them, they can't transfer them to a third party (ie, you). The performance itself is not a copyrightable work since it doesn't constitute 'fixing the work in a tangible form.' Because of that, a synch 'license' from them for you to use the recording you made is moot since they couldn't copyright the performance anyway. OTOH, a recording or video of the performance IS copyrightable since it is a tangible expression of the work. What the school can do for you is assist you in obtaining the necessary releases from the performers (or in this case probably their parents, I assume they're minors) so that you can use the recordings you made of their likenesses. But that is something totally separate from the necessary licenses to use the music that they performed in a video of the performance.

[John Vincent]

Not sure about needing releases from the kids - presumably a public performance with the intent that it would be seen, not only live but also via the multiple videocameras present, would tend to support no need for the kid's permission. This, coupled with the fact that the only people wanting these recordings would be the kids and parents, would also give little ground for anyone to sue... Who would they sue, esp if it was used in context? Think of the Peyton Manning HS video tape played right before the Super Bowl - did every kid give their permission to be seen? Perhaps... But unlikely.

However, the owners of the songs and their various rights would still have those rights. It's rumored that there used to be a widow of a playwright whose work was often performed in schools (one of those plays that's always playing at some local HS) who would sit in the audience with a script and mark down any errors in performance - then sue the school if there was for breaching the limited license given to the school...

That said, I see school performances on my public access channels that have certainly not been "cleared." Again, in most civil suits, the plaintiff must prove damages... And normally you can usually only get those actual damages. Perhaps all but impossible in a case such as this...

Also, I think there is a fair use issue here - presumably the performance given was, at least partly, for educational use under the guidence of a school. Did the school get a lisence to perform the music? If so, what exactly did that say?

Also, it would presumably help educate the kids to see themselves perform. Was the piece comedic? There's big, repeat BIG, exceptions to the copyright act in this regard (if you have any doubts about this, remember that poor "Star Wars" kid who has been mocked almost to death - no suit there, despite his reported unhappiness with the mockery), as well as the presses abilty to report, well, reportable news.

Try to get the releases... But I think you might be a bit over-worried. I can only give you my general impressions... And as usual, if you have any lingering questions, please see a lawyer in your jurisdiction. Good luck.

John (I only play a lawyer in court)
evilgeniusentertainment.com

[Dave Stern]

Hi Steve - must have been a misunderstanding, probably partly b/c I have to learn the differences between sync vs. the others. but yes, the permissions would come from the copyright holders, which are the publishing co's. That's who I've requested the permissions from.

Hi John - thanks. in all likelihood, I could video tape the show and make 75 copies and nothing would ever come of it, and it's probably done all the time. but, given that these are copyrighted works, I'm not sure I can bring myself to do that nor am I necessarily willing to. what a pain :-) getting them signed will be even more difficult .. will make paying for it seem easy. one of the copyright holders even told me to go ahead and do it and pretend we never talked (we wanted to use the music from a big hit song on that one). oh boy.

[John Vincent]

Originally Posted by Dave Stern

one of the copyright holders even told me to go ahead and do it and pretend we never talked (we wanted to use the music from a big hit song on that one). oh boy.

Now that's classic! Good for that guy.... Well, I'm glad you're not makin' the copies...
Wink wink, nudge nudge, say no more :)

john
evilgeniusentertainment.com

[Dave Stern]

Originally Posted by John Vincent

Now that's classic! Good for that guy.... Well, I'm glad you're not makin' the copies...
Wink wink, nudge nudge, say no more :)

john
evilgeniusentertainment.com

yeah, that was funny. I should have listened!

question - if I make 1 copy of the video and give it to the school for archival purposes, am I potentially liable if they make copies without obtaining permissions? (I shot two different performances and interleaved the camera shots to make the video - not sure if that process makes me any more involved in defining the 'work' that was created when I taped the show)

I'm trying to decide whether I should give the school a copy of the video if this committee decides not to deal with distribution to the parents and all the permissions. If they then make any copies, can I be drawn into the whole thing later? (they are not planning to make copies, but it would be beyond my control). I assume that whether I give them an analog copy (VHS) or digital (DVD), the answer would be similar (?).

Any thoughts on this?

[John Vincent]

Originally Posted by Dave Stern

yeah, that was funny. I should have listened!

question - if I make 1 copy of the video and give it to the school for archival purposes, am I potentially liable if they make copies without obtaining permissions? (I shot two different performances and interleaved the camera shots to make the video - not sure if that process makes me any more involved in defining the 'work' that was created when I taped the show)

I'm trying to decide whether I should give the school a copy of the video if this committee decides not to deal with distribution to the parents and all the permissions. If they then make any copies, can I be drawn into the whole thing later? (they are not planning to make copies, but it would be beyond my control). I assume that whether I give them an analog copy (VHS) or digital (DVD), the answer would be similar (?).

Any thoughts on this?

Reproduction or saving works for critism, comment, news, teaching (which can include multiple copies), scholarship, or research is not copyright infringement. Things weighed when evaluating this include: purpose or character of the use, nature of the copywritten work, the portion uses, and the overall effect on any potential market use.

As far as a school copy goes, single copies of works may be re-produced by libraries and archieves for non-commercial use w/o violating the law.

These libraries must be open to the public, or to anyone doing work in that field. I would not think the maner of reproduction is relevant (ie - no differnce between DVD and VHS tape). the library must give notice to any user that the work is copywriten. Libraries are allowed to copy all or part of a work that is "out of print."

Some food for thought...

john
evilgeniusentertainment.com

[Dave Stern]

John -

thank you. it seems to me based on the above, that if our school library did maintain a copy, it would be for teaching purposes, would be non-commercial, and market impact would be zero (unless someone makes the argument that our production was so bad that it deterred others from performing those works!). being a public school, access to those materials would be as good as it gets without it being a public library, and I would think the materials are relatively available through the proper requests, even to the public.

perhaps my best bet in this case it to give the copy to the school library and let them handle it. I can mark all of the works as copyrighted and list their owners..may be my safest route.

[John Vincent]

Dave - glad I could help. I'd think that the vast majority of copyright holders would treat school productions with kid gloves, esp when there is no desire to "exploit" the copyright.

Our laws can be practical, even if on the surface they apear otherwise. Very few cases are black + white, or as cut and dried as they might first look.

That's what good lawyers are good at - seeing the grey areas of the law, and then applying the specific facts.

Good luck w/ your future projects -
john
evilgeniusentertainment.com