The people over at the Technology in the Arts have been offering some nifty guides and podcasts for performing arts folks. Those I have looked at are fairly concise and easy to consume in a short period in your busy day. One of the more timely guides I have recently seen is about the legal considerations associated with posting video online that you hope will go viral.
As the guide author Amelia Northrup notes, technology has been moving faster than union agreements have been made so it can be difficult to know what is allowed and what is forbidden. Yet there is a fair bit of pressure to have a more extensive multi-media representation on the internet.
“Many of us have received well-intentioned comments from a friend or board member about posting performance footage online. However, there are not a lot of people giving practical advice on how to avoid an ugly legal run-in with your dancers over streaming video or negotiate with a union to ensure you are able to post the video of the third movement of a string quartet to your Facebook page. Building audiences with performance footage is wonderful, of course, but the benefit is nullified when your efforts cause a lawsuit from the composer!”
The guide has some case studies comparing the experiences of different arts organizations, both union and non-, who have worked to broadcast their works over the internet with varying results. Northrup also provides a brief guide to copyright law with a graphic that does a pretty good job at helping you get a general sense of which of the myriad copyright laws may apply to your production. (Though no guarantees you will be completely sure after looking at the graph.)
Northrup also discusses the fair use doctrine and address an assumption I never considered people might make. She points out that since using materials for educational purposes is permitted under fair use and non-profits are classified as educational entities, non-profits may assume there is nothing forbidding their use of protected materials. In short, it just ain’t so. On the other hand, some unions have rules that define use within certain parameters – “Actors’ Equity contracts have allowances for “b-roll,” which is approximately three minutes of footage that can be made publicly available, usually without royalties being paid to the performers.”
The guide also points out that more than just the work of the performers is covered by copyright and union protections and may involve payment of royalties and residuals.
“Artists contribute to the production by creating intellectual property, and therefore essentially become authors themselves. Any art used in the show, such as set, costumes, and lighting design are the intellectual property of these additional artist/authors (lighting designers, technical directors, etc.). This is also often a problem in the entertainment industry. In his book The Future of Ideas, Lawrence Lessig describes the difficulties that movie producers have clearing rights for logos, artwork, even furniture.”
And don’t forget that a video you post online highlighting interesting sections of a performance will also involve the intellectual property work of the video editors and related production crew as well.
The guide includes a list of Dos and Don’ts which reiterates knowing what the rules are, negotiating for the widest latitude of use from the outset and sticking to the agreement. One of the case studies reinforces the “don’t” of assuming the two related unions you are making arrangements with talking to each other, even if they say they are. There was one “don’t” that wasn’t really discussed in the rest of the guide- “Don’t assume that designers, actors, or any other artist or author will automatically equate your organization’s promotions with publicity for them.”
I have never run into an instance where this became a problem between an organization and artists, but I have had encounters where people at arts organizations assumed that an artist or designer wouldn’t mind if they used the artist’s work because it would promote them. I think that could potentially be the biggest area of contention in the future since technology seems to be fostering this attitude. That was the basis for a big discussion debate on composer Jason Robert Brown’s blog this summer. Brown is a big defender of sheet music royalties and had that view challenged by a young woman who felt she was helping promote him by trading his sheet music over the internet. Brown found 4,000 instances of people offering his work for free and was a little concerned about the loss of royalties that might represent. One of the points the young woman used as a counter during their lengthy debate was that he might stand to make money if someone used the free sheet music in a talent show which lead someone else to download Brown’s music from iTunes.
This is a topic that has no quick or easy answers. There are hundreds of comments on Brown’s post debating this topic and from what I heard, visits to his site rocketed into the hundreds of thousands. I daresay the basic conversation about intellectual property and the best intentions of fans when they use it hasn’t exhausted itself yet. You can sue those with malicious intent with a clear conscience. Responding to exploitation by those who adore you is another matter entirely.
