# Copyright enforcement?



## Sayen (Aug 8, 2012)

First off, thanks for all of the advice in my older copyright thread, as well as all of the awesome copyright threads in the history on this board. My facility has been working to establish cleaner and revised policies for renters, and we've come to a sticky point.

Our clause says that it is the responsibility of the renter to obtain all necessary permissions. We don't check them or have an easy way to check - but I also know that ultimately the facility is as responsible for violations as the individual clients. How do some of the other facilities out there handle this? Do you require renters to supply proof of copyright permissions?

I'm mostly thinking music here. I know most theater groups are good about rights, along with major orchestras. But I know most dance groups and variety acts do not have permission, even though we never ask outright.


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## museav (Aug 9, 2012)

Don't take this as legal advice, but in my communication with an attorney and some of the music licensing groups, at lkeast in terms of public performance rights it seemed to come down to two points. First, per Federal copyright law anyone who benefits from the use is at risk. You can say otherwise in the Contract but that does not alter the related Federal law. Second, as the venue directly relates to a performance being a public performance, usually benefits in some way from any performance, typically has something of value to risk, is usually a documented entity and is less likely to disappear, the rightsholders are most likely to go after venues.

The venue does seem to often have the most at risk and production companies, sound providers, etc. seem to generally assume that the venue will procure public performance rights. And most performance venues find obtaining public performance rights costs an inexpensive option compared to the potential risk.


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## Sayen (Aug 9, 2012)

That's exactly what I've found, in regards to liability.

What I'm trying to figure is for groups renting our facility. The contracts require them to obtain permissions, but should we be asking to see that in writing?

I'm not asking this as legal advice, just curious what other venues are doing/how they handle this issue.


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## gafftaper (Aug 9, 2012)

You absolutely should be asking to see proof in writing. If someone has gone through the trouble to obtain rights this is very easy for them to prove. Is it a pain for you to ask for this proof? Not really. It's just one more thing they need to send back to you with the rental agreement, just like proof of insurance. Will you potentially loose rentals to venues that don't care about rights? Yes you will. Perhaps a lot of business depending on what you usually do. Will you be in the minority if you start enforcing a paperwork check? Yes. Would you allow someone to rent your theater to show bootleg recordings of the latest motion picture release, the Super Bowl, or Olympics without permission? No of course not. How are those examples different from allowing someone to play music without a license in your space? The likelihood of your getting busted is higher with those activities. 

In the end the real question is, is it worth it? If you are the one theater in town that checks paperwork, then you are going to lose business. On the other hand if they make an example of you, and you get fined thousands of dollars you are going to wish you checked. 

In the end "You've got to ask yourself one question. Do I feel lucky? Well do yah Punk?" 

You might consider a consolidated effort with other rental facilities in your area. If everyone cracks down at the same then nobody looses business or risks a legal action.


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## museav (Aug 10, 2012)

You might need to be clear on which rights you are addressing. You mentioned music and because of the markets and usage covered, ASCAP/BMI/SESAC public performance rights are strongly oriented toward the venues addressing them and many bands, DJs and sound providers assume the venue will address them. Music in dramatic use is different licensing and since the use is specific to a performance may be handled differently. For the latter it would seem to make sense to make it the renter's responsibility and as an "at risk" party it does not seem unreasonable to ask for proof. On the one hand asking provides some indication of 'due diligence', on the other hand, asking for proof and proceeding without it seems like it could actually increase your risk.


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## JLNorthGA (Aug 10, 2012)

Sayen said:


> First off, thanks for all of the advice in my older copyright thread, as well as all of the awesome copyright threads in the history on this board. My facility has been working to establish cleaner and revised policies for renters, and we've come to a sticky point.
> 
> Our clause says that it is the responsibility of the renter to obtain all necessary permissions. We don't check them or have an easy way to check - but I also know that ultimately the facility is as responsible for violations as the individual clients. How do some of the other facilities out there handle this? Do you require renters to supply proof of copyright permissions?
> 
> I'm mostly thinking music here. I know most theater groups are good about rights, along with major orchestras. But I know most dance groups and variety acts do not have permission, even though we never ask outright.



If I may "chime in". Our theatre is a member of AACT. As such, we have a reduced rate for recorded music played at our venue. Rather than require all of the dance recitals, etc. which rent our facility to get their own ASCAP license, we just "bit the bullet" and paid for one for the venue. It covers all entre' act, pre-show and all recorded music used in shows. Our ASCAP license also covers live performances.

At the same time, we got a license from BMI for the music from live performers (NOT MUSICALS).

We are a small venue (250 seats) - copyright compliance costs are less than $600/year.

We do not have a license to record for distribution. In other words, if the local cable TV operation wants to record a concert for later broadcast, they have to show us that they got a license.

As an "aside", for many years I belonged to various choruses which put on shows. We were required by our "parent group" (then known as SPEBSQSA) to get a license for each show. We paid a yearly fee to ASCAP/BMI that depended on venue size. In my experience, I got asked for a license about 20% of the time.


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## Sayen (Aug 11, 2012)

These responses help a lot, thank you. I have feelers out in my local community too, but I get the feeling no one wants to admit what they do/don't do, and I'm guessing most places adopt some sort of "Don't ask, don't tell."

I only want to cover live performances (dance, choir, music used along with plays). Licensing for plays and musicals is easy, and as a director I have no problem asking for that evidence. I don't want to approach recording licensing yet, which I realize is a very different category.

I didn't realize a blanket license would cover renters - I've got calls into BMI and ASCAP regarding this.


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## museav (Aug 12, 2012)

Sayen said:


> I only want to cover live performances (dance, choir, music used along with plays).


I am pretty sure that music used to accompany dance or plays is considered a dramatic use rather than a music performance and I don't believe that BMI and ASCAP address those situations.

This is actually similar to what cinemas encounter where the rights they obtain to show the movie include the soundtrack, which is a dramatic use, so they have to procure separate rights to play any portion of that soundtrack other than as a direct element of the showing, such as before or after the movie or in the lobby.


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## gafftaper (Aug 12, 2012)

museav said:


> I am pretty sure that music used to accompany dance or plays is considered a dramatic use rather than a music performance and I don't believe that BMI and ASCAP address those situations.
> This is actually similar to what cinemas encounter where the rights they obtain to show the movie include the soundtrack, which is a dramatic use, so they have to procure separate rights to play any portion of that soundtrack other than as a direct element of the showing, such as before or after the movie or in the lobby.



This then gets into the very confusing line between "grand" and "small" performance licensing. Which is a really crazy area that I have only a vague understanding of. When you play music between scenes or during intermission as part of a play's sound design all of this music is covered under the normal "small" ASCAP rights. However if you have a singer jump up on a table and sing a song, then it becomes a dramatic centerpiece of the performance and crosses into "grand rights" which is a completely different deal. "Grand" rights are not covered by ASCAP and have to be individually negotiated with the producer of the album. 

I found this excellent article on copyright law.


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## Sayen (Aug 12, 2012)

View attachment sound-copyrights.doc


This is not perfect, but gives some info on grand/small rights. I wish I knew the source (suppose I could Google it...). You probably know this, but others reading the thread might find it useful.

I've been in unofficial contact with a copyright lawyer friend, and much of this seems to boil down to a case by case basis, especially once you introduce non-profits and educational groups into the mix. Sound of Music might need licensing direct from the dramatic publisher, while just a song danced to might need only the general music rights. If the dance is interpretive of the Sound of Music story it gets really confusing. Unfortunately "case by case" means determined by a legal entity, and not just the publishers.

It'll be a while, but if I make any headway I'll post back with what the big companies tell me.


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## Skjermoney (Aug 13, 2012)

As far as non-profits go I work for a non-profit that is a movie theatre and concert venue and I know that we have licenses with ASCAP and BMI. If anyone has any insight into the educational side of this I would appreciate it. I just started at a high school and am wondering about all the stupid little shows that go on every year; i.e. when kids play music for talent shows, lip sync contests, Mr. "name of school" pageants, etc. I've always been under the impression that there are pretty broad copyright exceptions for educational use.


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## gafftaper (Aug 13, 2012)

The best thing to do in the educational world is for the school to just get a license then all "small rights" activities for drama, choir, dances, talent shows, etc are all covered.


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## museav (Aug 13, 2012)

Skjermoney said:


> I've always been under the impression that there are pretty broad copyright exceptions for educational use.


I believe there are exceptions where educational use may be considered fair use, however the determination of it being "educational" use is not nearly as broad as some believe It occurring on a school property or by students is not what makes it educational, that seems to be determined more by factors such as being face-to-face teching, being directly relevant to an established curriculum and so on. In other words, the use essentially has to be directly supporting and furthering an established educational program. Use that is purely for entertainment or irrelevant to any curriculum would probably not fall under the educational use exceptions.


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## Sayen (Aug 14, 2012)

Fair Use Doctrine is painfully complex, and not well defined.. There are some specific guidelines for educational use based on court rulings, specifying how much of a work can be copied, such as a percentage of a poem or text. When it comes to performances it gets murkey. Here's the law, courtesy Wikipedia:

17 U.S.C. § 107


Notwithstanding the provisions of sections 17 U.S.C. § 106

and 17 U.S.C. § 106A

, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.

Those four points are substantial.

I'm not a lawyer, this is not legal advice, I'm repeating from memory what I was told by a copyright lawyer recently. For Educational Fair Use: Music used in a classroom is fine, background music at a school festival or assembly is fine. Music during a slideshow in front of the school is fine. Music used in a dance concert is PROBABLY okay, if it wasn't edited in any way. Background music in a play is most likely NOT okay. Music during scene changes is featured content, and probably NOT okay. Recording for distribution is never okay. But, as she put it, this is all determined on a case by case basis, usually with a lawyer or judge.


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## museav (Aug 15, 2012)

Sayen said:


> But, as she put it, this is all determined on a case by case basis, usually with a lawyer or judge.


My exerience is that many educators approach what is acceptable use as though it is theirs to determine and are often surprised to find that the school or district may look at it a bit differently. What is surprising is how many professors and instructors at universities I've dealt with that either weren't aware of or chose to ignore the university's published copyrights practices. But there are a lot of such documents available via the internet and some of them may make a good reference for creating your own guidelines and practices if they do not already exist.


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## JLNorthGA (Aug 15, 2012)

I talked with a representative from BMI today. According to him, dance companies can be covered under their own rehearsal licenses for recitals. Of course how many dance companies have rehearsal licenses?? Anyway, we have to "report" on our quarterly report and under responsible party, list the dance company name. If any other group rents our facility - we list the renter as the responsible party. Ditto for ASCAP.

Now it turns out that we may also have to talk to SESAC. Their catalog is a lot smaller (maybe 2% of the size of BMI/ASCAP) - but they do have Bob Dylan and Neil Diamond...


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## gfiremark (Aug 29, 2012)

I'm an expert in this area. As a theatre/entertainment lawyer, I help clients with licensing issues surrounding music (among other things). A while back, I wrote a blog post in response to a related question, here: Music Rights for Plays and Musicals | Law Offices of Gordon P. Firemark - Top Los Angeles Theatre & Film Entertainment Lawyer

I hope it's instructive. If it raises further questions, I'd be glad to answer them here. 

Thanks,

-Gordon Firemark
TheatreLawyer.com


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## Sayen (Aug 30, 2012)

My venue has, thankfully, decided to go with duel licenses to solve the hassle, and from what I gather our legal is either contacting a copyright lawyer or we are bringing one on board. This is a result of the information here and gathered from around the web, so thank you all.

Thank you for stopping by Gordon - I've sent several people to your website before, and you've been recommended here.

Since we have your attention, I have another sticky question, this one from the school I work at. Can you speak at all to the extent that the fair use doctrine and subsequent 4 points applies to educational productions, specifically the use of music in theater and dance at the high school level?


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## gfiremark (Aug 31, 2012)

Sayen said:


> ... another sticky question, this one from the school I work at. Can you speak at all to the extent that the fair use doctrine and subsequent 4 points applies to educational productions, specifically the use of music in theater and dance at the high school level?



Generally speaking, schools need licenses to perform the works they use in their programming.... 

The same four-factor Fair-Use analysis is involved when the alleged infringer of a copyright is a school. Since no one factor is completely dispositive of the issue, the analysis looks something like this:


*the purpose and character of the use; * - AS above, classroom use in the normal course of instruction is one thing... but performance to audiences is a bit different (and yes, I understand that performance is part of the educational experience, too, but the line has to be drawn somewhere)
*the nature of the copyrighted work;* (depends, of course, on the particular work, but most plays, musicals, etc., are created to be performed, and the creators DO expect to be compensated)
*the amount and substantiality of the portion used in relation to the copyrighted work as a whole;*and (usually the WHOLE work is being taken. (i.e,. performance of the entire song, play, or musical.... the analysis might be somewhat different where only a monologue or short scene from a longer play is used)
*the effect of the use upon the potential market for or value of the copyrighted work.* - There is such a market, licensing is possible, and licensors are able to garner fees from those who use their works, so the use in question has a significant impact on that market.

The main "exemption" is for in-class, truly instructional uses. In other words, using music in a dance CLASS is likely to be OK, but using it in a dance RECITAL requires a license. When you think about it, this makes some sense. In-Class use is educational. It's part of the training in the art/skill involved, but the presentation to an audience adds a couple of other components... ENTERTAINMENT, and COMMERCE (if tickets are sold).

As a practical matter, my understanding is that most school systems DO have blanket licenses from the Performing Rights Societies, to cover such concerts and recitals, and other "small rights" performances that go on in school.

BUT, in the context of stage productions, it's absolutely required that schools obtain licenses/permissions to perform dramatic works on stage. These rights aren't covered by ASCAP/BMI/SESAC... they must be obtained from the publisher/licensing agent for the play or musical in question.

---

One point to note. If you're an employee of a school, theatre, or producer, and in not obtaining licenses or permissions, you're acting under the direction of your employer, you're not likely to yourself be liable for infringement. The employer IS liable. The tricky thing is, as the employee most directly connected to this issue, your job could be on the line if/when your employer finds itself on the receiving end of a lawsuit. So, you should probably raise the issue with the boss whenever you see it arise. That way, at least you've got some ammunition if you're threatened with discipline or termination.


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## gfiremark (Aug 31, 2012)

Sayen said:


> ... from what I gather our legal is either contacting a copyright lawyer or we are bringing one on board.



I do provide this kind of service to venues, schools, producers, etc., so if your venue is looking for someone....

Law Offices of Gordon P. Firemark


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## MikeBee (Dec 4, 2012)

Hi all, I hope my twist on the question isn't out of line for this thread. I'm a volunteer, (a parent too) who video records kids on the dance line team in high school dancing, to music of course, for competition. These competitions are in the school gyms, are open to the public, but the hosting school does usually have a door fee, and the videos frankly are of very non commercial quality. That is to say, I'm in the stands with only the camera mic recording. The volunteer part comes in where I put these recordings up on youtube so that all of the girls, family, and whomever, can see them. They are used to review their performances as well as I'm sure, show grandma, what they are doing. I certainly make no money from this, and the recording quality is such that no one in their right mind would listen to it just for the music (there is cheering, yelliing, etc in the background) and as such I wouldn't think that it detracts from the marketability of the piece. The issue at hand is that youtube seems to randomly claim that I am infringing on UMG's, or someones copyright and either blocks, or removes the video. To me these are what fair use is all about, but then I'm the consumer here, not someone looking for a profit. On the down side, a substantial portion of the musical piece is played, sometimes all of it. Additionally, it isn't simply random, it needs to be there for the dance to make any sense. One could have a very weak argument I suppose that it is educational since it is used for review and thus further practice, but I'm wondering of putting it on youtube obviates that argument...... It is certainly non commercial. And it could possibly be considered a derivative since the tempo is frequently altered to suite the dance. I have thought of talking over the track a bit and adding commentary to turn it into a news piece, but feels silly and perhaps like a sham to me. Any thoughts? I'd love to hear what anyone else thinks. I should add that this same scenario applies to the video I might do of a school play, or other school activities. Thanks for your time, Mike


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## Morte615 (Dec 4, 2012)

Fair Use and Online Video | Center for Social Media
A good primer for information on Fair Use. The quality of the recording does not matter, neither does it matter if it is used for commercial or not, just how the copyrighted material is used in the recording. If in doubt ask an attorney.

YouTube uses an automated system to prevent violations. It misses quite often and even items that have a clear cut fair use are taken down regularly. If you think you are in the right there is a way to get your videos back up. (https://www.eff.org/issues/intellectual-property/guide-to-youtube-removals) Though they are not guaranteed to remain there. Look into spending some money and host the videos on your own site, that may help but you may still get take-down notices and you better be prepared to defend them.


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## gfiremark (Dec 4, 2012)

Volunteer or not, profit or not, what you're doing amounts to copyright infringement. It's NOT Fair Use, it's a wholesale copying of several other copyright protected works, and making of a derivative work without permission of the copyright holder. 

When you press "record", you begin making a duplicate (albeit low quality due to the microphone) of the song being played through gym's loudspeakers. When you upload the video to YouTube, you're making ANOTHER copy, and when the video is streamed to users, there's an unauthorized performance of the copied work. YouTube's algorithm is rightly catching this, and taking your videos down. If they don't, they could be liable for Millions of dollars in damages. (the DMCA requires that they implement these kinds of procedures, or lose their so-called "safe harbor") So, they have to be vigilant.

The school has a license to make a "public performance" of the song (this is what ASCAP, BMI, and SESAC are all about... public performance licensing) But, the license does NOT authorize the recording or making of derivative works based on the song. That would require direct permission from TWO different owners. First, the owner of the musical composition (the music publisher representing the songwriter), and second, the record company that owns the recording being used. 

It may seem oppressive, even silly, but it's the legal framework under which these entities (the publisher, record company, songwriter and artist) get compensated for making the investment in writing, recording and marketing the music we enjoy and dance to.


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## DrPinto (Dec 4, 2012)

I would personally have no problem recording a rehearsal for the purpose of critiquing a show. I would even record a show that had a relative in it to keep. Just don't post it on the internet. For safety reasons, personal videos of your children (and other people's kids) shouldn't be on the net anyway. There are too many weirdos out there. There is a way to make YouTube videos private so that only people you allow can view them, but you're still showing copyrighted material on the net.

Is making the video legal? Most likely not. But if I had a kid who was acting in a play and the cellphone in my pocket recorded video, you can bet I would save that memory.


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## derekleffew (Dec 5, 2012)

DrPinto said:


> ... But if I had a kid who was acting in a play and the cellphone in my pocket recorded video, you can bet I would save that memory.


And it's exactly this mindset that makes your ilk the bane of every House Manager and usher.

What part of "The use of cameras, and audio or video recording devices is strictly prohibited." don't you get?
.


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## DrPinto (Dec 5, 2012)

derekleffew said:


> And it's exactly this mindset that makes your ilk the bane of every House Manager and usher.
> 
> What part of "The use of cameras, and audio or video recording devices is strictly prohibited." don't you get?
> .



I'm not suggesting that someone disturb fellow audience members by opening up their cell phone and trying to record a show during a performance. That's distracting. However, I wouldn't have a problem recording during a dress rehearsal.


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## sk8rsdad (Dec 5, 2012)

DrPinto, I think you are missing the point. 

It is not just about the distraction to the audience, which I will grant you is very self-centered and rude. If you do not have permission from the copyright holder to make the recording, you have no right to make said recording. The copyright holder can seek redress for your action. I know of a local dance school where a parent made an unauthorized recording of their child's performance and the the choreographer had the parent ejected from the performance and their daughter ejected from the dance school. I guess they will treasure that memory.


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## DrPinto (Dec 5, 2012)

sk8rsdad said:


> DrPinto, I think you are missing the point.
> 
> It is not just about the distraction to the audience, which I will grant you is very self-centered and rude. If you do not have permission from the copyright holder to make the recording, you have no right to make said recording. The copyright holder can seek redress for your action. I know of a local dance school where a parent made an unauthorized recording of their child's performance and the the choreographer had the parent ejected from the performance and their daughter ejected from the dance school. I guess they will treasure that memory.



I do get the point. But I have to wonder why the parent was kicked out of the performance. I'll bet it was because he/she was distracting, not because the choreographer was thinking about copyright law.

In this age of cellphones with built in cameras, parents will try to sneak video of their kids performing. It doesn't matter what you say in the pre-show announcement, some will. And I don't see that changing in the near future. Parents want video of their kids. They don't care what song is playing while their child is on stage and they don't expect to make money off their recording. There should be some allowance for this. Maybe by allowing limited recording during a dress rehearsal or having the performance recorded professionally and allowing parents to buy a copy (with a cut going to the copyright holders), this problem can be dealt with reasonably. It just seems that copyright law and its enforcement has gone overboard.


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## MikeBee (Dec 5, 2012)

Well, you make it sound clear cut, but here's what I'm thinking. The case of a parent audio/video recording a, football game, dance recital , play, etc., seems to me to be directly related to the 'Dancing Baby' case where it has been decided that the use was Fair. The main difference that might occur is the length of the audio captured. Perhaps I'm placing too much emphasis on the fact that it is non commercial, does not detract from the saleability of the original piece, and has an educational function. This is still a developing area, and I sure do hope congress sorts it out in an understandable fashion soon. One thing that I thought of while pondering this, what of security cameras in the gym, on the street, in the theater, that are all recording AV all the time. This isn't posted to the public web such as youtube, but it is on the web for use by school officials, police, security, and so on. What issues may exist there??? Is it any different than the parent recording something? They are all copies. Mike

gfiremark said:


> Volunteer or not, profit or not, what you're doing amounts to copyright infringement. It's NOT Fair Use, it's a wholesale copying of several other copyright protected works, and making of a derivative work without permission of the copyright holder. When you press "record", you begin making a duplicate (albeit low quality due to the microphone) of the song being played through gym's loudspeakers. When you upload the video to YouTube, you're making ANOTHER copy, and when the video is streamed to users, there's an unauthorized performance of the copied work. YouTube's algorithm is rightly catching this, and taking your videos down. If they don't, they could be liable for Millions of dollars in damages. (the DMCA requires that they implement these kinds of procedures, or lose their so-called "safe harbor") So, they have to be vigilant. The school has a license to make a "public performance" of the song (this is what ASCAP, BMI, and SESAC are all about... public performance licensing) But, the license does NOT authorize the recording or making of derivative works based on the song. That would require direct permission from TWO different owners. First, the owner of the musical composition (the music publisher representing the songwriter), and second, the record company that owns the recording being used. It may seem oppressive, even silly, but it's the legal framework under which these entities (the publisher, record company, songwriter and artist) get compensated for making the investment in writing, recording and marketing the music we enjoy and dance to.


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## sk8rsdad (Dec 5, 2012)

DrPinto said:


> I do get the point. But I have to wonder why the parent was kicked out of the performance. I'll bet it was because he/she was distracting, not because the choreographer was thinking about copyright law.


They were ejected because the choreographer was upset about her work being stolen, not because her work used prerecorded music, under SOCAN license.


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## cpf (Dec 5, 2012)

Re. security cameras: They're there to capture thieves, miscreants, what have you - any inclusion of copyrighted material is incidental, and as it happens (in Canada at least) that's one of the exemptions. Additionally, if someone still wanted to pursue this non-infringement, who would they go after? The original installer who clicked "Record" 7 years ago?

Parental recordings, on the other hand, are clearly meant to capture a specific work. That the parent does not know if the work is copyrighted, or whether they have permission to record, has no bearing.

Of course, nothing is illegal if you don't get caught, but "everybody does it" isn't going to stand up that one time someone does end up in court.


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## museav (Dec 7, 2012)

The topic of copyright can get very complex and subjective. It is the realm of specialist attorneys who play in gray areas and use language that sometimes even they don't understand. It can also involve greatly varying personal perspectives and strong beliefs that one's personal perspective is justified.

That being said, the example of recording a dance team performance and posting it on YouTube seems to potentially involve multiple rights issues. Was the music being played legally obtained? Did someone obtain performance rights? Is the music and dance performance such that it may require dramatic or Grand rights? Do you have mechanical rights to record the copyrighted content? What about rights to copy and/or distribute it?

I look at it simply, there probably has been some benefit to or value gained from performing to the music and recording and posting those performances as human nature being what it is they otherwise would probably not be happening. The media and performance quality, your being a volunteer amateur, your not financially profiting and so on may affect any potential damages or penalties but probably not whether any infrigement occurred. And the educational exemption is generally much more limited than many seem to think, e.g. face-to-face instruction, directly relevant to an established curriculum, etc.

I also look at copyright infringement a bit like speeding in that it may be common and you may believe it is acceptable in your situation but neither of those alters the legality or the potential consequences. It isn't what you think or believe but rather how the legal system interprest it and thus you are often best served by obtaining the input of an expert in that area.


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## JChenault (Dec 7, 2012)

I always enjoy these copyright discussions.

One thing I have not seen discussed is the use of recording rehearsals for the sole purpose of setting cues.

For example, when not dealing with equity actors, is it all right for me to video tape a rehearsal in order to have a memory jog of the blocking so I can more easily decide where and what my cues should look like. 

I would opine that this is fair use. First of all what I am doing is akin to time shifting in recording TV shows. Secondly I am not taping the final performance, but only rehearsals. Third since I delete the video after the show is done, there is no adverse effect to the copyright holder

But as always, I would be interested in your opinions


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## Scarrgo (Dec 7, 2012)

As would I be interested in opinions on "cue writing only" recording...

Sean...


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## cpf (Dec 7, 2012)

JChenault said:


> I always enjoy these copyright discussions.
> 
> One thing I have not seen discussed is the use of recording rehearsals for the sole purpose of setting cues.
> 
> ...



I'm not a lawyer, but for the copyright aspects, this sounds like fair dealing to me (in a Canadian context). The copy of the work is for private study, literally, and is therefore exempt. Of course, there are many other factors that could prevent you from making the recording in the first place.


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## derekleffew (Dec 8, 2012)

GOP Caucus Fires Staffer For Advocating Copyright Reform | Crooks and Liars

> The document argues that the copyright regime has become too favorable to the interests of copyright holders and does not adequately serve the public interest.


Write your congressperson.


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## Sayen (Dec 12, 2012)

museav said:


> I also look at copyright infringement a bit like speeding in that it may be common and you may believe it is acceptable in your situation but neither of those alters the legality or the potential consequences. It isn't what you think or believe but rather how the legal system interprest it and thus you are often best served by obtaining the input of an expert in that area.



I like this analogy, and that's usually how I explain it to people. The other aspect is that if you speed, you probably shouldn't brag about it, or post videos online. The copyright world is also changing rapidly - pre-Internet copyright holders weren't as involved as they are now, especially in a post-Napster world.


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## museav (Dec 15, 2012)

Sayen said:


> I like this analogy, and that's usually how I explain it to people. The other aspect is that if you speed, you probably shouldn't brag about it, or post videos online.


There is also the element that not everyone gets stopped and you never really know when it might be you. You could get busted at any time for doing the same thing you previously did for years without issue. And while obvious violations will understandably garner attention, enforcement sometimes seems almost random or the result of some specific combination of circumstances.


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## Sayen (Dec 15, 2012)

I had a cop give me a good analogy for that too, as it related to speeders. This is like old timey advice time. He said a woman once complained when he wrote her a ticket, claiming that while she was speeding, she wasn't the fastest car on the road. Think of it like fishing, he said. You don't always catch the biggest fish, but you usually come back with something. And the big ones eventually get caught, or die off.


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## DrPinto (Dec 16, 2012)

derekleffew said:


> GOP Caucus Fires Staffer For Advocating Copyright Reform | Crooks and Liars
> 
> Write your congressperson.



Wow. Just wow. That was a really thought provoking memo. It has since been deleted, but it's available here:

Republican Study Committee Intellectual Property Brief

It's a good read for everybody.


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## Sayen (Dec 22, 2012)

That's both fascinating and disturbing. I'm not sold on the DJ/remix argument, nor do I quite hold that current copyright law limits creativity - I would argue the opposite, since artists of any form need to create their own works, not simply repackage the work of others.


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## museav (Dec 30, 2012)

Sayen said:


> That's both fascinating and disturbing. I'm not sold on the DJ/remix argument, nor do I quite hold that current copyright law limits creativity - I would argue the opposite, since artists of any form need to create their own works, not simply repackage the work of others.


I agree. Not only did I find the arguments presented rather weak and unsubstantiated but I also found the suggestion of turning copyright into a form of income for the government interesting as I don't recall that being in the Constitution nor do I see how more money for the government for some undefined purpose relates to furthering the arts or sciences that is supposedly the cornerstone of the argument for any changes. Overall that paper seems to me to possibly be more about creating a new form of income for the government while trying to justify it as a public service, something that is probably going to become more commonplace.


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## len (Dec 30, 2012)

What about a clause in the contract to the effect that "renter is responsible for a fees, fines, penalties, etc., incurred by venue as a result of renter violating copyright laws." ? I don't know if it carries any weight or is legal, but at least you're reminding them that they are responsible.


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## gafftaper (Dec 30, 2012)

len said:


> What about a clause in the contract to the effect that "renter is responsible for a fees, fines, penalties, etc., incurred by venue as a result of renter violating copyright laws." ? I don't know if it carries any weight or is legal, but at least you're reminding them that they are responsible.



It might not stand up in court but it seems like a good idea and worth getting a lawyer to advise you on how to properly word it. The music company is going to come after you the venue but that doesn't mean you can't then go after the renter afterward to get your money back. The only problem is you have a multi-million dollar asset in the form of a theater building, Jane's school of dance rent's a room in the strip mall. The probably don't have the money to hire a lawyer to defend themself against you, and you are likely to get very little back, even if you do have an air tight case against them. Thus, it's best to deal with it by simply having good policies and enforcing them.


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## museav (Jan 2, 2013)

len said:


> What about a clause in the contract to the effect that "renter is responsible for a fees, fines, penalties, etc., incurred by venue as a result of renter violating copyright laws." ? I don't know if it carries any weight or is legal, but at least you're reminding them that they are responsible.


I'm not an attorney or copyright expert but my conversations with attorneys and rights prepresentatives is that might not stand up. You could possibly iinclude language making the renter responsible for procuring rights beyond public performance rights, but in the end it probably comes down to what was the venue's role and did they benefit from any violation?

In speaking with those experts I got the impression that for a number of reasons the venue will almost always be a prime target when addressing any copyright violation related to a public performance. In fact because they can choose who to pursue in relation to any alleged violations and because it has advantages for them, some of the rights groups seem to automatically pursue the venue first, for example even stating that they consider the venue responsible for procuring public performance rights.


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## Sayen (Jan 2, 2013)

From what I've read outside this thread, most places do have that clause, and in most cases the clause will still not protect you. The venue has liability, and in most cases you can't really sign away liability.

Sort of like extreme sport activities that make you sign promising not to sue if you are injured, or employers who force you to sign agreeing to arbitration for disputes rather than a suit. My understanding is that those things look nice on paper, but you can't sign away your rights and liability.

Umm...I'm definitely not a lawyer, that just seems to be the majority of what I've read on this. Our rental contract does include a clause similar to the one above.


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## gafftaper (Jan 2, 2013)

I didn't make my point well so I'll try again in simpler terms. 

The person with the licensing rights is going to sue anyone and everyone they feel they can get money out of. This means the venue is target number one because you have a very large asset. No contract is going to keep them from suing you. So, it would be wise for everyone to have some phrasing in their contract that says the renter will be responsible for repaying the venue for any fines that result from the renter's illegal copy write activities. It might help, although you will probably face more fines than the renter has money to repay.


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## museav (Jan 3, 2013)

To riterate Gaff's point, copyright is addressing civil rather than criminal law and if ASCAP/BMI/SESAC or any rightsholder believes a violation has occurred then they get to choose whether to pursue it and who to pursue. From their perspective it may not always make sense to pursue the parties that are most directly responsible but rather the parties that will require the least effort to pursue, that represent the least negative PR and from whom they are most likely to actually get anything. And that often means the venue will be one of the parties, if not the only party, pursued.

At the same time, US copyright law addresses all parties who benefit from any violation so parties other than the venue cannot assume they are without risk. Thus the best bet is probably not to try to assign liability but to work together to limit everyone's liability.

The language noted does not seem to address actually protecting you from any action related to copyright allegations or fees, fines, penalties, etc. but rather simply provides some basis for subsequently trying to recover any resulting damages from the other parties involved. However, if the rightsholder or their representative did not pursue action against that party in the first place then that may work against you or at least be a sign that action against them may be more trouble than it is worth.


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