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Legal Question - Using Theater Performance in Demo Reel

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Beth Zivitski
Legal Question - Using Theater Performance in Demo Reel
on Jan 30, 2012 at 9:26:25 pm

I have done lots of work for a local musical theater department. Some of the actors have given me permission to use their footage in my demo reel and on my website.

However, I realize that does not necessarily give me permission to use the copyrighted music which they are singing.

How can I show examples of live musical performances and avoid copyright infringement?

Can I get away with just using short snippets of each song?
Or, do I need to cut out the audio entirely? (Which basically defeats the purpose of a music demo.)


Any advise would be great. Thanks!

bz


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Todd Terry
Re: Legal Question - Using Theater Performance in Demo Reel
on Jan 30, 2012 at 10:32:16 pm

Well, very strictly speaking, it's verboten. Although you see people do it all the time.

If we are talking about Broadway show tunes, I wouldn't bother even pursuing getting rights to the clips... it would be wildly expensive to license the music, especially for web usage.

I think you'd be in the clear (or at least probably never caught) if you used short snippets, and if you don't put them on a publicly accessible page. Maybe put them on a hidden page or a password-protected page where if someone was, for example, specifically interested in seeing your work or hiring you, that you could direct them to.

On the upside, since these are local performances, even though they are well-known works the music label's and publishing company's robot spiders will not find them on the web, since it would be highly unlikely they would be looking for the exact performance of a piece that you have posted.

But again, strictly speaking, it's not legal... especially and even more so if it is put up as a professional business website.

Oh, and by the way, the same goes for the dialog portion of a play that you might excerpt, not just the music. Although the book rights will likely be a different publisher (and also easier to get) than the music rights.

T2

__________________________________
Todd Terry
Creative Director
Fantastic Plastic Entertainment, Inc.
fantasticplastic.com



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Beth Zivitski
Re: Legal Question - Using Theater Performance in Demo Reel
on Jan 30, 2012 at 10:48:47 pm

Could you explain... "especially and even more so if it is put up as a professional business website."

Is this because it could be considered "For Profit?"

Luckily, the dialog portions were written by the actors themselves.
Only the music is copyrighted in these performances.

Thank you for your response!

bz


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Richard Herd
Re: Legal Question - Using Theater Performance in Demo Reel
on Jan 31, 2012 at 5:25:02 pm

I paid an Intellectual Property attorney a ton of money, once. She wrote a bunch of Memos Of Understanding and License Agreements. She told me "copyright is not a verb. It is something you hold." For me, that cleared up what a copyright is. The creator of a work always holds the copyright. The "verbiness" is when you register the copyright with the government.

What does that mean?

It means the actors who wrote their own parts hold the copyright.

It means you cannot use someone else's work without the copyright holder's permission. The name for the document that gives you permission to use their work is (generally speaking) called a License.

And also of course, I'm not a lawyer.


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Beth Zivitski
Re: Legal Question - Using Theater Performance in Demo Reel
on Jan 31, 2012 at 7:38:14 pm

You're right, I should not have worded it that way.

"Only the music is copyrighted in these performances."

I was meaning in the "official" sense... where I would need to spend lots of money.

I know that the actors own their work, which is why I asked their permission for its use, in its entirety.

However, great explanation.

Thanks.

bz


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Todd Terry
Re: Legal Question - Using Theater Performance in Demo Reel
on Feb 1, 2012 at 6:42:38 pm

[Beth Zivitski] "Could you explain... "especially and even more so if it is put up as a professional business website.""


Sure, Beth... I meant that the publisher and rights-holders will be much less forgiving and less inclined to "look the other way" if the material is on a website for a for-profit business or for a professional organization or individual.

Whereas if it is for a single private individual just "doing it for fun," then they would less inclined to do anything.

That is NOT to say it's any less illegal for a private individual to do that, as opposed to a professional company... it's just that rights holders tend to not care quite as much. A teenager can put up a video of her singing a cover of a Lady GaGa song in her bedroom on YouTube and not have to worry much about any repercussions... whereas if another real band were to cover the same song without paying proper publishing fees then they would be targeted in a heartbeat. The kid is no more legal than the band is... it's just that the rights holders probably don't care much.

One mistake that is easy to make (and you see it happen often) when it comes to theatrical performances, is that people think they are in the clear to do as they choose because they have already paid for rights to use the work on stage. Well, those licenses that the play's producers have already purchased are for its performance on stage ONLY (and for a specified time and number of performances, and usually for the specific venue as well). Those rights usually do not however include the right to record the performance in any way... and certainly not to distribute it. Now, if you put on a play and shoot video of it and make DVDs for the cast to keep as souvenirs, no one would ever catch you (even though it is, strictly speaking, not legal). Now, if you decided to sell those DVDs to audience members, well that's quite illegal, although the chances of getting caught are still pretty slim (although you never know when one of the recipients will decide to post a clip from it on YouTube or Vimeo or FaceBook or whatever). BUT... the second you put that footage on the internet the chances of getting discovered skyrocket.

You might, at best, have absolutely nothing happen and never hear a peep out of anyone. Or, you might receive a "Cease and Desist" notice from the rights-holders' attorney. At worst... well, recently a wedding videographer was slapped with a six-figure lawsuit for using a pop song in a couple's wedding video. Best to err on the side of caution.

As my dad would say, "Clear as mud?"

T2

__________________________________
Todd Terry
Creative Director
Fantastic Plastic Entertainment, Inc.
fantasticplastic.com



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