# Lawsuits for schools selling copyright material?



## Sayen (Jan 5, 2012)

I am familiar with copyright law, and small vs. grand rights, and all of that jazz. Many high schools regularly violate these laws, either using music in performances without permission or by recording and then distributing performances, including not only theater but music and dance. There seems to be an industry attitude of turning a blind eye towards schools?

I am trying to prevent an individual in my facility from committing a gross violation of copyright law. Is anyone aware of any cases where a school or district has actually been sued, particularly for selling or distributing copies?

I figure if RIAA will go after someone for downloading a handful of songs, they must have gone after someone for selling mass DVDs.


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## Footer (Jan 5, 2012)

Never heard of any public lawsuits. I have heard of MTI giving out massive fines to schools for not following a contract. I have also heard of MTI essentially black listing a school from doing their shows. 

Legally though you may be more in the clear then you think. You can purchase "DVD" rights to most shows. Also, most school districts have a blanket ASCAP license that covers them for anything from basketball games to orchestra/band performances. There are also some fair use things that pop up when education is involved 

What specifically are they doing?


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## museav (Jan 5, 2012)

The actual costs for rights are small compared to the potential penalties and the PR of a public lawsuit might want to be avoided by both sides, so unless the damages greatly exceed the rights costs it seems more likely a matter of most claims being settled out of court or between the parties before a lawsuit is actually filed.

Maybe not directly relevant since it focuses on printed material, but Copyright Action Data Results has a few examples. The fines are interesting at $3,000 for simply skipping a repeat in the original piece for a marching band performance to $5,300,000 for distributing multiple unauthorized software copies.

Here's a good related resource, COPYRIGHT LAW FOR THEATRE DIRECTORS AND ACTORS. I'm not an expert in the topic but what is presented matches my limited understanding.


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## gafftaper (Jan 5, 2012)

Gordon Firemark is the entertainment law guy. His website www.Firemark.com is full of all kinds of great information. Besides all the stuff on the main page, don't miss the links about half way down on the right side to all kinds of topics in his blog.

The only hard number I've heard was $10,000 for each illegal copy of a production distributed.  However, I don't know any details about the case, or if that's just a fictitious number.


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## DrPinto (Jan 5, 2012)

museav said:


> Here's a good related resource, COPYRIGHT LAW FOR THEATRE DIRECTORS AND ACTORS. I'm not an expert in the topic but what is presented matches my limited understanding.


 
Lots of dead links...


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## Sayen (Jan 5, 2012)

As a school we're debating policies. If someone sued over a performance, they would sue the district, who would then look at all involved individuals, and as the facilities manager I don't want to be lumped in. I regularly have people requesting DVDs of plays and concerts.

Both our music and dance programs sell DVDs of their shows. The guitar classes are playing cover songs at battle-of-the-bands type events, and of course dance just selects their favorite songs to perform to. I know rights are available, but without a consequence none of these groups are willing to secure rights, and I'm not going to do it for them.

It also sets a poor example for students in an educational setting. Rather than teach the law, we're teaching that it is acceptable to break the law.


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## avkid (Jan 5, 2012)

At my former high school they used a contractor to reduce (in their opinion) their liability when video taping performances.
He was a career videographer specializing mostly in schools, he had been sued multiple times and jailed once for copyright and IP law violations.


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## Sayen (Jan 5, 2012)

I met a guy like that at a conference. He tried to give me his card, and I told him we cannot film most of our performances. He said not to worry about it, and that if it came up he'd take care of it.

Uh huh.

The one thing I do know about lawsuits is that they go for the throat, and they go for the top. When they're done with the district and everyone involved, the district is going to terminate anyone left standing who was associated.

Here's a question: What's my liability if, as an audio technician, I supply a line out to someone who is illegally recording with the intent to sell? I contacted a lawyer over this, but haven't heard back.


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## ruinexplorer (Jan 5, 2012)

Since most contracts give you the right to record for archival purposes, providing the means to record is probably not the issue. I would assume (non-lawyer speaking) that the burden would lie with the person who copied and distributed that material from the "archived" copy.


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## josh88 (Jan 5, 2012)

With the intent to sell and your prior knowledge, you'd certainly be in hot water if it came back on people


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## MNicolai (Jan 5, 2012)

Sayen said:


> Here's a question: What's my liability if, as an audio technician, I supply a line out to someone who is illegally recording with the intent to sell? I contacted a lawyer over this, but haven't heard back.



I agree with ruinexplorer. It's not on the audio op.

Most of the time when I get requests for signals out of the mixer for videography, it's from some parent or someone whose intent is to film the show on behalf of the dance or theatre troupe, who usually just wants to produce copies for parents. Legally, it's probably not wise to sell copies to parents, but if it's a school, I really don't see anyone going after a videographer. Nobody wants to get that kind of press: "Videographer Jailed by Big Bad Copyright Holder for Making DVD's of Little Suzy's Performance for Little Suzy's Parents"

More realistically, they'll say, "Hey -- stop that!" and that'll be the end of it unless they see that you're selling DVD's for profit out of your box office, in which case it may turn into a thing.

If you're working in K-12 education, just ask the entity granting your rights to put on the show what hoops they want you to go through to make some DVD's for some parents. Some will want money, others will just say it's fine, and a few may tell you no, but for the most part the K-12 education market isn't really where their concerns are so long as the group is paying their appropriate royalties for putting the performance on in the first place.

I have a friend who wanted to film some performances and sell DVD's to parents. He contacted the entity responsible for the rights, who pretty much just told him he could and that he could charge for parts and labor (DVD, camera, his time, etc...), but he couldn't put an unreasonable markup on the DVD's to try to make any sizable profit on them.


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## museav (Jan 6, 2012)

MNicolai said:


> I agree with ruinexplorer. It's not on the audio op.


According to the rights organizations and attorneys I've spoken with, US Federal law essentially defines anyone who potentially receives benefit from the violation as being considered a violator. Note that it is benefits and not profits and the associated damages incurred do not have to be direct financial damages, they can be damages to reputation, indirect financial losses, undesired associations being made and so forth.

Realistically, it makes little sense to file a lawsuit in situations that would cost more than you might easily recover or to go after parties that may not be able to pay or to get into a legal battle that would do more harm than is justified by the potential award. So the rightsholders and their agents tend to pick and choose which situations and parties to pursue. 

However, there can be a domino effect. Say the videographer is sued and loses. To try to recover their loss they may turn around and sue everyone they can in an effort to hope to collect something. They may argue that other parties contributed to their violation and thus should bear some of the burden. So it's not just being the cause of the violation, but their is also risk in being a contributing factor.

The point is really that other than securing appropriate rights it is apparently rarely a simple black and white matter when it comes to being at risk and all you can do is manage that risk. And contributing to a situation that you know may involve copyrights violations is not good risk management.

So in the case of an archival recording I believe that the risk would be much higher for the person making an archival recording if they freely gave or offered that recording to someone than if it was taken without their permission. And even greater if they gave it with reasonable knowledge that there was intent to copy and distribute it. As far as an audio feed, that might be even clearer as other than a signal archival recording what legitimate, as in legal, use is there for that feed and thus what defense would there be that you did not directly contribute to any related violation?


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## gafftaper (Jan 6, 2012)

I challenge everyone on the idea of the "archival recording". It's an idea that is commonly thrown around just like the idea of there are exemptions for educational purposes. Just because you put a fancy name on it and call it archival doesn't make the copy more legal, in most cases. I think someone found that phrase in an obscure fair use law and decided it applies. But again, the truth is you sign away most, if not all, of your fair use rights when you sign that contract with MTI (et al). We went through this a couple years ago at the college. Finally someone listened to me and actually read the contract for the shows we had been doing. Every one of them made it very clear that absolutely no recording is allowed, even the fabled "archival" copy. As a result, we quit recording our productions in any way. 

Read your contract!


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## pmolsonmus (Jan 6, 2012)

Here is the law re: archival recordings for concerts. I don't have a copy of the MTI contract, but it certainly could prohibit either of these as well. I'm not a lawyer but if you voluntarily enter a contract that gives up rights, you probably give up those rights. 
That said, it would not be the first time a copyright holder tried to assert more power/control than they actually are due. I still wouldn't make copies and I'm amazed at the number of youtube videos that are clearly in violation of LOTS of copyright laws.​

The law...​http://www.copyright.gov/circs/circ21.pdf

4 
​A single copy of recordings of performances by students may be made for evaluation or rehearsal purposes and may be retained by the educational institution or individual teacher.​ A single copy of a sound recording (such as a tape, disc, or cassette) of copyrighted music may be made from sound recordings owned by an educational institution or an individual teacher for the purpose of constructing aural exercises or examinations and may be retained by the educational institution or individual teacher. (This pertains only to the copyright of the music itself and not to any copyright which may exist in the sound recording.)


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## MNicolai (Jan 6, 2012)

I consulted a lawyer, who pointed me to this article: The 'Fair Use' Rule: When Use of Copyrighted Material is Acceptable | Nolo.com

The summary of our conversation was that there are no hard and fast rules for what is or is not copyright infringement. Everyone is under a different contract (some may not even be under contracts). If in doubt, check your contract and check with the copyright holder.

If you're a videographer being hired to film a performance, you may want to have an indemnity clause in your contract that prevents you from being held liable for however your client uses the recording after you hand them their copy. Such a clause goes both ways though -- if you're a school district, such a clause can prevent you from being held liable if your videographer tries to turn a profit off of the DVD or if they go throw the recording on YouTube.


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## museav (Jan 7, 2012)

MNicolai said:


> If you're a videographer being hired to film a performance, you may want to have an indemnity clause in your contract that prevents you from being held liable for however your client uses the recording after you hand them their copy. Such a clause goes both ways though -- if you're a school district, such a clause can prevent you from being held liable if your videographer tries to turn a profit off of the DVD or if they go throw the recording on YouTube.


Well, you probably already violated any rights if you are handing them a copy. 

As you said, few things are clear cut and while such clauses may reduce your risk, they do not prevent potential liability, nothing can really do that.


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## MNicolai (Jan 7, 2012)

museav said:


> Well, you probably already violated any rights if you are handing them a copy.
> 
> As you said, few things are clear cut and while such clauses may reduce your risk, they do not prevent potential liability, nothing can really do that.



Valid, but it could be argued that I've been hired to perform the task on behalf of the client, and that I am not the party responsible for securing permission. If I, as the videographer, don't explicitly have something to [that effect]* written into my contract though, it's a harder case to make when it arrives in a courtroom.

[That effect]* meaning something to the tune of "By signing this contract, the client affirms that they have the appropriate permission from any concerned copyright holders to record the performance in its entirety. The client agrees to indemnify and hold harmless the videographer against loss or threatened loss or expense by reason of the liability or potential liability of the videographer for or arising out of any claims for damages against intellectual property."

The first part of the above paragraph means that if it turns out that the client doesn't have permission to have the performance recorded, they are in violation of the contract. Add another tidbit of legal jargon and such a violation of contract causes the client to assume all legal liability for any cases of copyright infringment.

The second part of that paragraph means that if the client gets sued, they cannot turn around and sue the videographer, and any legals expenses the videographer may incur along the way will be covered by the client.

If I'm the videographer -- I don't care if the group has the permission or not. I care that if they don't have permission, my butt isn't going to be paying out a huge settlement.

FYI: I am not a lawyer, and this is not legal advice.


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## museav (Jan 8, 2012)

MNicolai said:


> Valid, but it could be argued that I've been hired to perform the task on behalf of the client, and that I am not the party responsible for securing permission. If I, as the videographer, don't explicitly have something to [that effect]* written into my contract though, it's a harder case to make when it arrives in a courtroom.


It's definitely a good idea and well worth it. My point was really that such issues are not always as simple or clear cut as we'd like them to be. As an Attorney once told me, they hate having engineers and scientists on juries as they see everything in black and white while lawyers like to work in the grey areas. So while such language will certainly help and is probably strongly recommended, it probably does not release you from any related responsibility whatsoever. People could still argue over the legality of the language and the reassignment of liability, whether you could/should have done something to prevent a violation, whether the language could be interpreted differently and so on.

A real world example, some years go I was involved on a university performing arts center project where we were working for the Architect. Apparently, because it made construction easier the General Contractor proposed, and the Owner accepted, a change to the balcony construction without asking for input from us or the Architect. When we became aware of the change we immediately sent a letter to the Architect informing them that the revisions proposed would result in a number of seats having impeded sightlines and that we recommended against it. The Architect forwarded that letter on to the Owner and Construction Manager, who chose to ignore it. Fast forward some months and sure enough, the seats have poor sightlines and the Owner sues the General Contractor over it. The G.C. turns around and sues us and the Architect. We figured no problem, we had informed them in writing what would happen and thus it would just go away. Nope, months later we had many hours invested in depositions, research, documentation, etc. and were still dealing with whether we should have done more, whether what was said could have been misinterpreted, whether it would be cheaper to just pay them than to keep fighting and so on. That was just one of several similar situations that I have encountered over the years.


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## misterm (Jan 9, 2012)

pmolsonmus said:


> Here is the law re: archival recordings for concerts. I don't have a copy of the MTI contract, but it certainly could prohibit either of these as well. I'm not a lawyer but if you voluntarily enter a contract that gives up rights, you probably give up those rights.
> [/FONT]​




Just got done reading over contracts from MTI for some shows and I'll verify that MTI specifically states that NO recording of ANY part of the show is permissable, even rehearsals, unless you receive permission from MTI.​


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## MrKerr (Jan 9, 2012)

On a related note I work part time for a Non For Profit Events company that would sell DVD's of performances of groups that performed at there events. They would get all rights that they thought they needed. After 25 years a single copyright artist with a chip on his shoulder hired a high priced attorney and had them sue anyone they could find in violation. They went after High Schools and Companies and anyone else that sneezed. The company I worked for found out that they forget 1 of 7 licenses they needed to produce videos. THis one license about bankrupted the company. So yes it does happen, not often but it does. Be careful cause sometimes it only takes a shark of a lawyer to change your life forever.


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