Is this derivative work covered by fair use or otherwise permitted?

[Les Wilson]

I think I have a working understanding of licensing music for use in video and have done so on my productions. On the topic of school plays, I've read as much as I can and tattooed several posts on my eyelids. But, I can't figure out how all that applies to a request I recently got from a school (tax-exempt, non-profit if it matters).

Twice I was hired to make the archival recording of school musical theater productions. The school properly purchased the videotaping license, were permitted to pay a professional videographer and sold the recording only to cast members etc all as per the license.

The school is now asking if they can create a mini-documentary to promote this year's play using footage from the archival recording as long as they don't use the sound track. They want to show the mini-documentary at school events, their website, and YouTube. I have a copy of each license (R&H Theatricals and MTI) and it only addresses the archival recording (containing the intellectual property of the lyrics, score and script).

Since the IP has been removed, is this a lawful derivative work by the school to which neither MTI or R&H have rights? I contacted both R&H and MTI via the procedures on their websites to request permission but neither acknowledged the contact or responded in any way.

So, does the licensing company own the rights to the visuals of a given licensee's performance?

[Gordon P. Firemark]

The IP hasn't been removed. Just because the soundtrack is not used, does not change the fact that the visual that's been recorded is based upon the underlying copyright work.

The documentary is, technically, an UNAUTHORIZED derivative work, and requires a separate license from the play publisher.

As a practical matter, depending on the play in question, it may or may-not be possible to identify the show just from the appearance of the characters, costumes, sets, etc. (if it's "CATS", for example). But if not, it's likely that the documentary COULD be characterized as a fair use.

Trouble is... Fair Use is a DEFENSE to a claim of copyright infringement. What that means is, by the time you get to argue about it with the plaintiff, you're already being sued... at great expense, inconvenience, etc.

Better to treat the archival footage as just that.. ARCHIVAL, and not as source material for some other kind of work.

--------------------------------------------------------------------------
Law Offices of Gordon P. Firemark
Theatre and Entertainment Law
--------------------------------------------------------------------------

[Les Wilson]

All MTI and R&H did was provide music and a script. Neither of those are in the material. The visualization and choreography are the work of school staff not MTE or R&H.

What is the basis in law for the assertion that an MTI or R&H copyright was infringed when there is no material from MTI or R&H in the video?

[Dave Blackhurst]

Interesting case - the "small distribution" (school & parents) is apparently cleared, which makes good sense. I believe the "school events" would also be covered within that area?

Where you've got an interesting question (one that no doubt the attorneys are mulling over with no good answer, thus the dead air you've encountered) is the "website and YouTube"... now instead of authorizing a LIMITED audience of viewers, in theory you've opened the performance to an UNLIMITED audience.

This is the sort of copyright question that rears it's ugly head in the wedding/event video threads quite often.

As I see it it's a "size of audience/distribution" variable that creates a HUGE problem. I believe that IP holders probably wouldn't (or at least shouldn't) be terribly stingy on a limited interest "semi-private" distibution basis (meaning only released to participants and family for "memorializing a performance").

I'd argue that is "fair use", meaning that as long as any person there could shoot a video, it should not be "infringement" for a "professional" to document the event properly and distribute copies to participants/families. Presuming limited distribution on a fixed media (DVD, etc.), the IP holder has a reasonably small scope to deal with.


AND NOW THE "RUB"...
The second you upload to a website/YouTube, in practical reality you now have made that content of "limited, semi private" interest available ad hoc to anyone and their web surfing dog. It also is in theory, in digital form, so is easily transferred between various media, creating another quandry. We all know how "quality may vary" in digitization... so that becomes a problem - bad performances or presentation may harm the IP holder, and they probably don't want to have that risk beyond the limited audience.

And of course what if for some reason the video "goes viral" and becomes a big international hit...

Yesterday I saw a Disney DVD (Bolt), where the "deluxe" version included a "digital copy" (and other extra stuff too) for a few $ more, and right on the box suggested it could be taken with the buyer anywhere on any viewing device (computer/cell phone/MP3 media player). Progressive thinking there, and an acknowledgement of the portability of digital media. I'm pretty sure if you put that "digital copy" on a web site, they'd break your fingers...

While displaying something on a website may seem "fair" to the owner (or licensee) of a piece of digital content, unless you produced the entirety of it (script/music/audio/visuals, etc.) you're crossing into all sorts of IP issues... it's a violation of the license to "distribute" unless you stay within the contemplated "audience".

While the plan may be that only a limited audience may access the "website/YouTube", the reality is there are too many people with absolutely nothing better to do out there who CAN or will "possibly" view that content... why those poor souls represent a threat to the IP holders "property value" is hard to say, but that's the "threat".

I believe that for the IP holder the challenge is to protect against "willy nilly" use/distribution of their IP, as traditionally a holder must show they have taken reasonable steps to "protect" their property, or risk losing ALL protection.

Thus, allowing for creation/distributing a few hundred (at most) DVDs within a license for a performance represents a controlled, quantifiable, and reasonable "use". Releasing a performance to the entire world... does not.

I've contemplated this question quite a bit (shooting my kids plays, I get asked for copies... and I shoot weddings), and think the above is a pretty good analysis of the question at hand. The digital artist/IP holder has (and MUST have) a reasonable right to control use/distribution/audience for their "product". They MUST be able to quantify and establish parameters within which they deem it reasonable to allow people to "use/view/screen" their content, and be able to get reasonable compensation for that use. BUT in this digital age where everything is 1's and 0's and can fly round the world in milliseconds, there is a challenge to be faced.

I believe you've found where that "line" is drawn. Hopefully this will help you sort out what the school needs to do vs, the IP rights holder.

[Les Wilson]

Thoughtful analysis Dave. I enjoyed reading it. My immediate first step was to pursue permission and licensing from MTI and R&H for all three venues and back off as needed. But after getting the silent treatment from both, I started evaluating the work against the four factors of Fair Use:
1. the purpose and character of use
2. the nature of the copyrighted work
3. the amount and substantiality of the portion taken
4. the effect of the use upon the potential market

When I realized the answer to #3 is zero, I decided to post here.

I also re-read the Copyright law with this situation in mind and wondered if MTI or R&H even HAVE a copyright claim to the video which only shows the costumes, staging and choreography which are original works of the SCHOOL nit MTI or R&H. As per section 103(b) of the US Copyright law:

The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

[Dave Blackhurst]

AHH... I think you're in the clear if I understand you correctly - you're stripping the audio, and just using the visuals for a "clips" type compilation? "Video beds" if you will.

IOW, these could be kids dancing in costumes at a halloween party for all the viewer knows, though in this case it's to illustrate the activites that are part of the school experience,specifically participation in a stage presentation, without any direct identification of the play or portions thereof they are performing, or any recognizable portions of audio/dialog.

I'd suspect you'd be in the clear in that case to post short visual clips in that context, without any further permission. The video of the unique presentation would qualify as you suspect for it's own copyright, independent of the underlying license to perform "the play".

The original license was to perform a complete play or portions thereof, and the original video clearance allowed limited distribution. Short promotional video only clips are enough removed from the original licensed "work" that I doubt one could argue that additional copyright clearance would be needed - you're promoting the school, regardless of what they are performing, and I would think you'd have reasonable grounds to show activities at the school including reading copyrighted books, watching copyrighted instructional videos, and performing copyrighted plays. The copyrighted material is incidental, as long as it's not individually identifiable (logically extending the requirements for model releases)

Since we live in litigious times, you may want to approach the rights holders and explain the context in a bit more detail, just in case, but I think you're probably in the clear.

PS - not familiar with your 4 factors of "fair use" offhand, but they are consistent with my analysis, I presume they are from case law? Interested in the source if you have a link handy!

[Les Wilson]

Yes. I'm going to attempt contact MTI and R&H one last time. In my initial contact, I described it in detail and gave them access to a draft. I'm re-diting remove references to the specific plays as per your points. Thanks.

The four factors come from the US Copyright law. Below are links to an invaluable resource on the topic.
Stanford Copyright & Fair Use - Measuring Fair Use: The Four Factors

Stanford also provides a web application for logging the four factors for each project:
http://www.copyright.iupui.edu/checklist.htm

Another interesting read:
Stanford Copyright & Fair Use - Fair Use

The featured video on the home page of a Charlie Rose interview with Larry Lessig is refreshing:
Stanford Copyright & Fair Use Center

[Paul Tauger]

Originally Posted by Les Wilson

I think I have a working understanding of licensing music for use in video and have done so on my productions. On the topic of school plays, I've read as much as I can and tattooed several posts on my eyelids. But, I can't figure out how all that applies to a request I recently got from a school (tax-exempt, non-profit if it matters).

Twice I was hired to make the archival recording of school musical theater productions. The school properly purchased the videotaping license, were permitted to pay a professional videographer and sold the recording only to cast members etc all as per the license.

The school is now asking if they can create a mini-documentary to promote this year's play using footage from the archival recording as long as they don't use the sound track. They want to show the mini-documentary at school events, their website, and YouTube. I have a copy of each license (R&H Theatricals and MTI) and it only addresses the archival recording (containing the intellectual property of the lyrics, score and script).

Since the IP has been removed, is this a lawful derivative work by the school to which neither MTI or R&H have rights? I contacted both R&H and MTI via the procedures on their websites to request permission but neither acknowledged the contact or responded in any way.

So, does the licensing company own the rights to the visuals of a given licensee's performance?

Sorry to be late to the party.

No, it is not a lawful derivative work. The school has acquired only those rights specified in the license, i.e. "archival copy." I'd also be surprised if the license includes distributing copies to the cast, but it might. However, unless expressly authorized in the license, unauthorized uses, i.e. those outside of the creation of the archival copy, are not permitted and would constitute infringement.

[Paul Tauger]

Originally Posted by Dave Blackhurst

PS - not familiar with your 4 factors of "fair use" offhand, but they are consistent with my analysis, I presume they are from case law? Interested in the source if you have a link handy!

Fair use is an equitable doctrine, meaning that it is judge-made law that arose applying traditional concepts of equity. It has been codified into the copyright statue as four factors, but these factors are neither exclusive nor dispositive. Fair use remains an equitable doctrine and will be decided on a case-by-case basis by a judge in the context of copyright infringement law suit. Non-lawyers should never attempt to make a fair use determination by themselves -- doing so requires complete familiarity with the entire body of fair use decisional law.

[Les Wilson]

Originally Posted by Paul Tauger

Sorry to be late to the party.

No, it is not a lawful derivative work. The school has acquired only those rights specified in the license, i.e. "archival copy." I'd also be surprised if the license includes distributing copies to the cast, but it might. However, unless expressly authorized in the license, unauthorized uses, i.e. those outside of the creation of the archival copy, are not permitted and would constitute infringement.

Better late than never. The licenses are for archival and sale to cast member and say it in plain english. They refer to "The Video recording".

What I'm trying to understand is the argument that lets the publisher of a play's lyrics, music, and dialog claim ownership of the choreography, costumes, and other visuals that were created by someone else after the lyrics, music and dialog are removed and in light of section 103b: "The copyright in a compilation or derivative work extends only to the material contributed by the author"

And then there's the issue of various High School's in house recordings on YouTube that the publisher has done nothing about.

[Paul Tauger]

Originally Posted by Les Wilson

Better late than never. The licenses are for archival and sale to cast member and say it in plain english. They refer to "The Video recording".

What I'm trying to understand is the argument that lets the publisher of a play's lyrics, music, and dialog claim ownership of the choreography, costumes, and other visuals that were created by someone else after the lyrics, music and dialog are removed and in light of section 103b: "The copyright in a compilation or derivative work extends only to the material contributed by the author"

The violation would be one of contract, not one of copyright per se. Without seeing the license, it's not possible to tell. However, these licenses are usually pretty specific about the conditions under which the show can be performed.

And then there's the issue of various High School's in house recordings on YouTube that the publisher has done nothing about.

Hardly an issue. High schools have been sued for copyright infringement of shows in the past. That the licensor hasn't bother to sue for this (or doesn't know that it is occurring) has no legal consequence.

[Les Wilson]

I get it. Thanks. Contract violation makes sense. When I called the publishers to review the usage, I found pleasant people who listened but didn't get it so they just said no. I persisted and asked if they would review it. After they reviewed it, they said it was fine.

Interestingly, one required the video be changed to stills. With the insight from your post, I see now they basically said no to using the video but because the contract does not cover stills there is no contract violation and if the stills are OK, that reinforces there not being IP infringement.

It's all pretty frustrating for the schools. They invest a lot of money, time and resources of their own putting on the event of which the play is just a portion yet the publishers tie their hands from using their own investment and IP to promote the program. Most around here are trying to just break even.

[Les Wilson]

Epilog: Dave, Paul, everyone ... many thanks ... released yesterday:
YouTube - Cinderella Promo Internet