Why do publishers let people put school plays on YouTube?
 

I've produced a number "Cast and Crew" videos for a local school's annual play. It's always done as an authorized recording under a specific Cast and Crew license purchased by the school from Disney or R&H and it grants specific rights. It always prohibits the video from being put on the Internet.

This year, R&H won't even offer that license for Once Upon a Mattress. Yet, there are plenty of YouTube clips of school productions of that play and many others that have been there for years. Some are obvious multi-camera high grade productions done by the school or production company. I asked one such YouTuber how they got a license to put it on YouTube and they said they saw other schools doing it so figured it was ok.

So if R&H is so strict as to not offer cast and crew licensing for a given play, what is their strategy in allowing people to publish recordings on YouTube? Does it affect their rights?

Is the licence still available for any other production that the school could possibly do?

Andrew

There is no strategy, and they are not "allowing" anything. They just don't have the resources to police the web daily. And they probably realize the futility of suing their customers.

Last time I was on the R&H website their policy seemed to be, "no video, ever, under any circumstances." Perhaps that has changed for certain shows. But Internet is almost always prohibited no matter who you deal with.

Andrew,
There's various things that go into the decision about what play is chosen. This is the first that a license is not even available so that may go into the criteria for next year. I know R&H was bought out last year and that may be why the video license isn't offered anymore.

Adam,
It's not like these things are popping up daily. Many have been around for years. Also, suing customers is different from removing from YouTube. If they aren't doing anything about those publishing unauthorized recordings, what could possibly be the benefit of turning off a revenue stream from authorized ones? Come to think of it, they are aggravating their paying customers by not offering the license and rubbing their face in it by not enforcing their own policy against those who pay nothing.

YouTube is a copyright infringement cluster-F that is full of videos which abuse the rights of the original copyright holder. In fact doing a search there I found 90 TV commercials where the use of my voice was only licensed for TV broadcast use in a particular market for a particular amount of time. Now I have to contact YouTube on each instance to get the audio portion removed.

This just highlights how times & technology have changed to such an extent that publishers couldn't even imagine what people would want or be able to do in terms of recording. They just haven't caught up with the fact that every single member of the audience of a production could be making their own HD recording on a $200 camcorder then uploading that recording to YouTube.

Les, I understand what you're saying and I agree with your points, but I never said that any of this makes any sense. I think all of us imagine a famous organization like R&H being a huge outfit in a gleaming office tower with hordes of lawyers and such, but the reality is more likely that it's a couple of really old guys in a crappy underlit cubicle in a tattered low-rent office building in a shady part of NYC, with piles of files on their desks, and any PCs, if they have them, running DOS. They're stuck in 1980s technology and philosophy and don't have a clue as to how beneficial it could be to license proper video rights. As for YouTube, I doubt they've even heard of it.

Adam is correct. They simply don't have the resources (money, time, personnel, expertise) to police the web. Like 90% of businesses, they would not have a clue how to get a video removed from YouTube, even if they knew it was there.

According to YouTube, almost 30,000 hours of video is uploaded every day. Can you imagine trying to keep tabs on that without an automated method of doing it?

Just as locks are to keep honest people out, so terms and licenses are to keep honest people abiding by the publishers wishes.

It's highly unlikely that any IP holding company consists of troglodite/luddite types living an a cave...

Even if that were the case, they would have lawyers in a fancy building most likely, working on "creative" ways to "protect" IP interests (AKA run up a huge bill at $250/hr.).

The challenge is that they ARE aware of the mess that the digital revolution has created, pretty much like a deer in the headlights is aware "something" is happening...

The problem is technology has leapfrogged past the traditional boundaries - where the cost and time required to "create" (or more importantly create a perfect or at least usable copy of) a book/play/commercial/TV show/movie was prohibitive. Now every kid with a cell phone, iPod or similar and access to a computer has ZERO education in IP rights, and a "loaded weapon" which can make passable copies for nest to nothing.

Think about how the "lay of the land" has changed and you'll see how revenue models are being created and destroyed at an unprecedented rate...


When I used to record a cassette copy of the LP I bought, and maybe one for my buddy who paid for half the LP, the "fidelity" sucked, but of course LP's would skip rather badly if you tried to use it in a moving vehicle, so it was "OK"... and people passed around bootleg cassettes... can you even BUY a cassette recorder or player anymore??

Along came CD/DVD - plays most anywhere, and at the beginning expensive to create/copy, but now it could be done with a PERFECT copy... a few years pass and the cost to burn an original of copy becomes more than affordable... downright cheap.

FF to NOW, and practically evey portable device has playback for multiple digital formats for audio and video, HD cameras are coming down...

I'm sure you can already buy a cell phone with full HD/high res photos and audio recording that might not have every bell/whistle/adjustment on it, but would shoot video that would beat an SD camera from just a few years ago.

Technology changes things - some for better or some for worse... IP holders will figure this out, perhaps instead of selling X copies and making more per copy, they should in theory be able to sell XXXX copies, or "license" XXXXX copies, and create a "new" revenue stream, hopefully greater than the original one... or not.

There are a LOT of professions/business models going to DISAPPEAR if they haven't already, and new ones will be created. IP will always exist, ways to create a revenue stream from IP "should" continue to exist, but it won't look the same as it did 50 years ago, 20 years ago, or probably even last week...

I just saw a news story about how YouTube is going on a hiring binge (in a horrible economy), so "something" is working there... maybe next week a new startup will pop up and put them out of business a few years from now... welcome to the age of technology.

There ARE automated methods of doing so, far more sophisticated than the average person realizes. Perhaps a great business model would be to have a couple code monkeys create the necessary programs, and draw up some agreements where an IP holder can farm out tracking/enforcement for a fee... I'd frankly be shocked it YouToob wasn't doing this or at least working on it right now.

1's and 0's leave a trail, messy little buggers that they are! Having dealt with another site that had trouble with scammers, I can tell you that there are ways to spot, track, and eliminate the "troublemakers" fairly quickly and efficiently.

Part of the problem is that people buy a CD/DVD/cable feed/internet access and have the nerve to think they "own" it (tongue slightly in cheek) and can do whatever they want with it... they don't understand the 1's and 0's are actually "on loan" for very limited and specific uses. People understand "buy", and "own", but "license"?!? Will take a lot of edumacatin' to get that concept across.

Some IP holders believe those uses should be so severely limited that EVERY use should accrue a charge that comes back to them, or invoke a severe penalty. Yet the practical value of IP changes (one would argue diminishes) every day as more and more uniquely configured 1's and 0's are uploaded, media shifted, copied, parrotted, emulated, reinterpreted, etc...

Perhaps somewhere in the middle lies a GREAT new business model, where each use channels a micropayment back through "the system", small enough that the user is happy, AND the IP creator is too... or not...

Of course the "unique-ness" of a given concept/sound/visual will also be called into question, further compounding the problem!

Not for recognizing IP sung by a high school choral group recorded with a built-in camcorder mic halfway across the gymnasium.

You are referring to acoustic fingerprinting, and all current technology relies on identifying a particular master recording, not an infinite number of variations on an arrangement.

I can see the scene. The DOS computer is cast perfectly. Hysterical.

I did some more looking around and found information on what I had heard:

R&H was sold to ImageM last year for $250M. ImageM is the Music publishing arm of a Netherlands pension investment firm with revenues of $130M a year. According to the PR, "The current management team of the R&H Org, topped by prexy and exec director Theodore S. Chapin, will remain in place." According to rnh.com, Chapin is an industry veteran with a staff of 50.

So maybe Chapin is a figure head while spreadsheet toting bean counters manage numbers on a screen for profit in their pockets not for growth. No investment for growth. Cut progressive activities. Don't invest to protect the brand. Print books and manuscripts. Milk what's on the shelf. Sell it to a lower echelon investment group when the numbers don't add up anymore. I've seen this movie before and the ending stinks.

Automation not needed. THere's few of these plays and YouTube tagging makes them easy to find. You find one song in one play and Youtube dishes up a bunch of other users that have posted clips from the same play.

So by not pursing infringers on YouTube, are they saying any value lost is less than the cost of paying a college student minimum wage for a couple hours a month?

To my original question, does not pursuing infringement on the worlds largest video search engine affect their ability to prosecute infringement in the future?

It's easy enough to create algorithms to go snoop around the data streams - one using an acoustic footprint is only ONE way - as Les notes, it's pretty simple to cross check videos and come up with a manageable list of potential infringement...

In theory, the "horse is out of the barn". As a practical matter, a creative attorney could probably come up with some argument and sue a bunch of nice folks who simply didn't know any better and wanted to "share" some happy moments of their lives, thereby tossing any goodwill attached to the IP out the window (think RIAA and where the old like music biz is).

Far better would be a licensing/advertising agreement whereby the IP holder gets free advertising (good for them), and perhaps access or an arrangement for others to purchase their "product", and the otherwise decent copyright infringer is allowed to have reasonable abilities to post without fear of retribution. I suspect YouTube is up to something like this already, but who knows.

We've discussed IP law ad nauseam here (probably the most knowledgeable and intellegent discussions to be found anywhere short of Harvard), and there is no easy answer. The IP holder certainly doesn't "let" or want to "let" their IP be freely posted (no IP freely! DOH!), but there is little or no provision for licensing for "the little guy" or the "small production".

And of course an IP creator MUST have control of their "property", yet if they hold too tight, they lose the opportunity to profit from it (which is thier choice) - tis a sticky wicket. Toss in a bit of greed and larceny, and you've got a decent plot...

Please explain how it would beneficial to them to license proper video rights? How does the IP holder generate revenue from allowing the posting on YouTube of a video made of the performance of a play he's licensed? Remember, if it doesn't either generate direct revenue through royalties or increase his sales of licenses, it has no value to him. All he sees is someone else generating a benefit to themselves off of his property without giving him a cut of the action. So how could posting the play on YouTube put signifigant dollars in his pocket?

It's amazing that they don't chase this up. Getty Images have been making a very profitable career of sending lawyers letters to website owners claiming that some of their images are infringing & demanding thousands of dollars in royalties & damages. As far as I know only one or two alleged infringers has actually been deemed in breech by a court but many thousands have paid up when they receive one of Getty's blackmail letters.

I'd like to use a classic radio analogy:

Anti-piracy types (the same ones that use crappy contracts and Hollywood Accounting to deny as much payment to the real artists as possible, leaving more for themselves) rave on about closing off the great "analogue hole" that still exists on computers and other home entertainment systems.

Yet they would give their right nut to have their songs achieve airplay on the radio, which is another analogue hole. Apart from a small share of a radio royalty pool, they don't get payment for the public being able to hear their recording for free. So what's in it for them that they are so desperate for? Publicity and top-of-mind awareness.

It doesn't matter how good you are. If nobody knows that your album exists, how do they know to go out and buy it?

Same goes for low quality YouTube copies of your play. The benefit is that others can watch it and think (a) our school can do a better job at this play; and (b) that's actually an interesting play .... and then go on to book a theatrical license. For a theatrical script that isn't A-grade Lloyd Webber fame level, a bit of YouTube exposure can help overcome the clutter.

Andrew

Adam's point was wrt the discussion about R&H theatricals no longer offering add-on licenses to their amateur performance licenses that authorize cast and crew videos. These typically cost another 20% of the performance license. It costs them little to administrate these and it benefits them with additional revenue.

If they don't license the cast & crew video the danger is that it will get made anyway & they will lose out on that 20% extra that could have been theirs.

Steve -
I think the other replies hit the nail on the head, but to recap/expand -

The IP holder would benefit from up front licensing fees they wouldn't otherwise get (for acknowledging what's already likely happening, and allowing videotaping).

The IP holder would benefit from the "goodwill" (intangible, but valuable, and there is an accounting entry for it!) generated by providing a mechanism/option for people to "memorialize" the performance of themselves or an important member of their family/circle of friends.

The IP holder benefits (i.e. Chris Brown and the wedding march video of 2009) by having EXPOSURE (free advertising - advertising costs $$, and again is an accounting entry) of their "product" in front of more people, some of whom will decide they want their own "copy", or as mentioned, they would like to perform a given play with THEIR group.

The IP holder benefits from not "criminalizing" their own client for simply using the technology available to them. I realize this is the wealest "argument", and infringing is infringing, but I doubt very much that any given performance of a given "work" will have such widespread appeal as to dilute the "brand" - collectively, you can argue that a property can be diluted by overexposure, but popularity= more potential buyers/licensers and in the end THAT is what EVERY IP holder desperately needs/wants (with rare Salinger type exceptions).

The real "goal" should be to create a revenue path that allows the IP holder to profit and benefit from (as well as exercise reasonable control over) their property, yet allows fair and reasonable "use" (given the state of technology) and enjoyment of that property - it is of course a balance, yet it is one that is worthy of being attained, as that will in the end benefit BOTH the IP holder AND the "consumer"/licensee.

Does anyone have an idea what the cost range is for schools to get a performance license for a play? I would be interested in knowing about the lower end of the market - not the hot properties.

I have shot some elementary school plays and had pretty good DVD sales, but I'm lucky that these are all original plays written by the director's father. He has written five of them that they cycle through. This year there is a cast of 55 in the play!

One year they did a musical and the music was composed for the play by the author and a local musician - and the songs were surprisingly good. (btw, I don't shoot school plays that are not originals.)

Maybe I should team up with the author and try to get his plays into other schools and expand my market...

Others have clarified this but I should reiterate that I never said posting on YouTube, or anywhere on the Internet, for that matter, was beneficial to the IP owner, nor that this had anything to do with proper video rights. But pretty clearly the attitude of "No video, ever," shuts off a potential revenue stream that could come from additional fees that would permit a cast/crew/families video license, for all the reasons that others have mentioned above.

As you know from my prior posts, I'm not one of those who thinks everything ought to be free just because I don't feel like paying for it, or that it's okay to ignore a law just because it's stupid. But we're clearly seeing more publishers waking up to the potential of allowing more leeway with moderate extra payment, and those who drag their feet in this regard risk being left behind.

The license fees for some of these shows and for some smaller schools are laughably low -- on the order of $200 per show, with maybe an extra $50 or $100 for the limited video rights in some cases. But that could mean 50% extra revenue from every school.

Adam, I agree. The issue of YouTube is separate and a distraction.

I would think that Cast/Crew licenses generate tangible benefit in additional upfront revenues from each school. That they also generate customer satisfaction and loyalty which stimulates return business. And that the converse is also true: Lack of the license reduces near term revenue, lowers customer loyalty, inhibits return business and creates more unauthorized copies potentially uploaded to YouTube.

Cast and crew videos, especially in schools where they are generally non-professionals, I can see because it would simply allow the particpants in an amateur event they've done for pleasure (and perhaps school credit) a souvenier to memorialize their particpation. But I think it's a major leap to go from there to allow posting and display of the resulting video in the public areana in venues such as YouTube. Paid licensing for public performance is what the business is all about and is really the only reason it exists, not fame, not exposure, not cheers and "attaboys" but nickels in the pocket. No dollars coming in, no reason for the IP to exist in the first place. Posting on YouTube is a public performance very similar to commercial broadcasting, the only real difference is in the ease of entry, lack of content vetting, and easy access to "airtime" on the part of the content makers. I don't see any problem at all with owners of IP wanting to prevent their property from being used for such a purpose without their deriving revenue from it.

The "exposure" and "free advertising" agruments are completey bogus. In the case of music, the pieces that present the copyright problems on YouTube are by name artists who have all the exposure they need already. I sincerely doubt Gwen Stefani or Lady GaGa need any advertising or will gain any sales from having their latest song appear in a YouTube video. Likewise, a video of a school performance of "Little Shop of Horrors" on YouTube isn't likely to generate any additional license sales for the play's publisher. And in any case, it's solely the IP owner's
perogative whether they want their property exposed and advertised and in what venues - a licensee simply does not have the right to make that decision for them. The bottom line is one of private property rights.

Right. That's understood but always worth reiterating. As for the topic:

Why do you suppose they allow the years of postings on YouTube?

By not acting on YouTube postings, do you infer they therefore want the exposure on YouTube?

Is there a point where letting people "expose their IP" affects their ability litigate?

A video of a school production that gets posted to YouTube is hardly likely to be watched by anyone other than those directly involved or their relatives. It's not like people will prefer to watch a free amateur version of 'Little Shop Of Horrors' on YouTube rather than buy the DVD. The copyright holders are missing the opportunity to generate revenue by licensing YouTube uploads.

I'm sure they'd be happy to license it ... for the same price they'd license a performance on NBC. You can always ask.

Les -

1. I think using the terms "allow" and "let" mischaracterize the situation - it's analogous to a thief saying you "let" him use your car because you didn't report it stolen right away... it's a matter of discovery, notice, and enforcement.

2. Doubtful. More likely they "tolerate" the "problem". I believe YouTube will pull down any offending videos if notice is given - but just think of the volume involved. People don't think about the fact that the video they post so Aunt Lou can see Junior in his play will be "exposed" to everyone with an internet connection...

3. In theory... while it would be an affirmative defense that the IP holder failed to protect and defend their "property", I don't think it's much better than the argument in #1... if the IP holder could show they didn't discover the infringement and acted quickly when they did, it would probably negate the defense. Remember that the "ability" to litigate is dictated by the depth of the pockets, and a creative attorney can find a way to file suit over just about anything (or nothing at all).

More likely the reason they aren't doing anything is proving damages, and the potential PR backlash from suing "customers", but that doesn't mean it won't happen.

Don't they tend to price licenses on what they can get away with or whatever the market will bear which is all dependent on the size of the market? Thus the rights for broadcast of a show in e.g. Sweden will be less than the same show in the UK. The potential market for the cast & crew video of the school production may be in theory everyone in the world with an Internet connection but in practise will be their friends & family. YouTube already has a mechanism in place to count the number of times the video is played so it could be licensed on a PPV basis.

Useful explanation. Thanks.

Be grateful you have such a facility as a cast and crew video - here in the UK video in any shape or form is specifically banned as part of the contract. No video recording even for educational or any other use. People still do it, of course - but I've never come across much UK copyright material on the net.

Yes. It has many benefits in the school realm and why it is puzzling and disappointing that R&H stopped selling them. With the license, students and parents put more into the production because they knew they'll be able to see it. It also was a mechanism to teach respect for IP to both students and parents. Now it puts the parents in a bind.

Is it against law in UK or just that all the publishers pact together?

Well - it certainly infringes copyright as it's a specific clause everybody signs up to. It isn't so much that there'd probably be fines involved, it's that if a school or college were proven to have done it, it's highly unlikely Weinberger or Warner Chappel, the two big ones here in the UK would then license another - and places that have performing arts as a big part of their portfolio can't take the risk.

Maybe because the user base here is smaller, these things tend to get noticed more easily.

Video is kind of allowed under the UK version of the Fair Use Policy - because of the educational link, but the reality is that the copyright owner has to agree with your request for fair use - and most, as they've specifically prohibited it, don't agree and withhold permission, kind of making the fair use concept a bit worthless. Ironically, I visit many UK schools and colleges and video is probably the most common evidence I see of performance standards - but it just gets kept very quiet, and officially doesn't happen, if you see what I mean!

In North America the fact that the video is made by or for a school does not, in itself, bring it under the educational provisions of the Fair Use doctrine. It depends as well on just what the school does with it. If it is used for classroom instruction, such as perhaps the teacher in the drama class putting on the production using the video to critique the student's perfomances after the play and showing cuts from the video as teaching examples in front of the class, then it's likely to be Fair Use. But selling, even if just at cost, or even giving away, copies to their parents as souvenirs of the play, or even worse, selling copies to the general student body to raise funds for the next production, would not be considered an educational use at all and would require the normal commercial use licensing.