Archive for October 23rd, 2012

Can They Dance Away With My Copyright?

Tuesday, October 23rd, 2012

By Brian Taylor Goldstein, Esq.

I own the video footage of a performance by a dance company. Recently, I learned that another choreographer purchased a license from the dance company to recreate and perform the same work. However, they used a copy of my video to help in recreating the choreography. In other words, they copied the performance which was on my video, but no one asked my permission. Aren’t I entitled to a royalty or a fee? How are the choreography and the video separable?  The only way they could get the choreography was through my video.”

Copyright protects original, creative works that are fixed in some tangible medium. For example, when a playwright creates a script, he or she obtains a copyright in the play. If someone else later videotapes a performance of the play, the videographer may obtain a copyright in the video and, with it, the right to control who can make copies of the video or broadcast the video or sell the video. However, the playwright still owns all rights to the play itself. If another theater wants to produce the play, they only need to seek permission of the playwright–even if they use the video as a reference, so long as they don’t make a “physical” copy of the video itself. It’s the same with choreography. Choreographic works become protected by copyright when either the chorography is written down in choreographic notes or videotaped. However, the videotape or the choreography is a separate copyright from the choreography itself.

In your case, the fact that the other company may have used your video to “learn” and remount the choreography doesn’t mean they necessarily copied your video. You own the video footage. That’s your copyright and no one can make a physical copy of the video without your permission. However, the original dance company and/or the choreographer who created the work own the performance rights.

Of course, what I have given you is a copyright analysis. The real question I have is: what were the terms of your agreement with the dance company when you made the video? Did you even have a contract? Issues such as performance rights, licensing, and permissions—as well as many others, including credit, ownership, control, and exclusivity—are all issues that can be agreed upon in a contract. Not have a contract, and relying solely on copyright laws and statutes, is like dying without a will. If you wanted to receive a royalty every time the work was performed, you could have asked for that, just as the dance company could have asked for a royalty every time you sold or licensed a copy of the video. When it comes to avoiding miscommunications and disappointments, nothing beats a piece of paper…correction, nothing beats a piece of paper with lots of details!

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For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.

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THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

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Posted in Arts Management, Contracts, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Recordings | Comments Closed

Depth Perception

Tuesday, October 23rd, 2012

For people who don’t happen to read the Los Angeles Times, I would suggest clicking here for an excellent article posted on October 21 by Neal Gabler. It is headlined, “Hollywood’s perception of value versus real value [my italics]: America emulates Movieland’s way of measuring the worth of things, which teaches us to place the perception of value over value itself.”

Once again Mr. Gabler, with his customary lucidity, has identified an aspect of contemporary American society that needs to be recognized for what it is, questioned and, in my opinion, resisted. The term “valuation” refers to identifying some measurable worth of a film, a director, actor or actress, and accepting that measure as intrinsic value. He writes, “Movie grosses, TV ratings, salaries, lists of the most powerful are all ways that a society sets a valuation on things.” His point is that, through the ubiquitous translation of art and artists’ worth into monetary and commercial terms, we turn the perception and economic rewards of success into our own notion of success.

Hollywood created the film “industry,” which in turn has given us stars and the star system. It has had, and continues to have, a profound influence on our way of thinking. The article’s concluding sentence sums it up: “And so here we are, many of us subscribing to the same measures of worth to which Hollywood has subscribed for years, focusing on creating the perception [again, my emphasis] of worth and leading to a society that may know the valuation of everything and the value of nothing.”

It is not an enormous leap from the collateral damage of Hollywood’s influence on a large portion of our society’s perception (or lack thereof) of “value,” to our comparatively rarified and smaller subculture of classical music. It would be hard for any of us to claim that the phenomenon described above has not significantly impacted the way “our” music, its musicians and its institutions are perceived and promoted. Just as the concentrated listening that classical music requires has been neither nurtured by the media environment nor by education, so have the visual and marketable aspects of music-making claimed increased prominence.

“Value” and “valuation” have many definitions in various disciplines; most of them primarily have to do with identifying an object’s (or a person’s) place in a monetary or commercial hierarchy. However, it seems to me that contemporary humanity commonly uses (and misuses) the words “value” and “values” for various ethical and moral concepts. In the three definitions of “valuation” in my copy of Webster’s New World Dictionary of the American Language: College Edition, only the last one mentions the word “merit;” and one has to get to the seventh of thirteen entries under “value” before any non materialistic dimension is to be found. And here it is:

“That which is desirable or worthy of esteem for its own sake; thing or quality having intrinsic worth.”

Isn’t that characterization fundamental to Western Civilization’s conception of art? And isn’t that why musicians devote their lives to playing the works of Bach and Mozart–because their music has “intrinsic worth”? Don’t the nation’s symphony orchestras exist to keep alive a wealth of music (in the non-monetary sense of the word) that has attained universal recognition, while also providing a forum for new works that will hopefully survive into the future? Are opera houses not there to preserve several discrete traditions of vocalism and theater, some of which were once as popular a form of entertainment as our cinema is today?

Assuming the answer is yes to any or all of these questions, I think it is important to keep our eyes off the bouncing ball of image and attune our ears to the music in music-making. We should take heed of the insidious effects of “valuation” within, and of, the classical arts. We should be capable of recognizing the difference between art and artifice, performance and its promotion, essence and the extraneous. The central distinction between “value” and “valuation” has been keenly scrutinized in Neal Gabler’s article. For anyone interested in the health of our classical music life, it is well worth the five minutes it will take to read and the hours required to digest.

Posted in A Rich Possession | Comments Closed