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Copyright for Performing Artists  

Last Updated: Sep 12, 2016 URL: http://chapman.libguides.com/CopyrightPerformingArts Print Guide RSS Updates

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Taylor Greene
 

U.S. Copyright Office: Current Legislation

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Copyright Laws

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Welcome to the Copyright for Performers Guide!

This guide will serve as an introduction to U.S. Copyright law and will focus on the needs of students, staff, and faculty at Chapman University's College of Performing Arts (CoPA). Please note that I am not a lawyer and cannot offer you legal advice!

Why should I care about copyright?

Musicians, actors, directors, dancers, and other performing artists make their living from performing and recording works, and often these performances are made using works created by another author who is not taking part in the performance. While there are many instances where these works may be in the public domain, there are a great many works (or editions of works) that are copyrighted and must be used legally in order for the performance or recording to be made legally. If your performance or recording makes illegal use of someone's copyrighted work, you (the performer, theatre company, record company, etc.) may:

  1. have your production shut down, recording banned from distribution, video removed from the internet, etc. 
  2. lose your right to profit from the efforts your performance
  3. have to pay monetary compensation or face other legal repercussions (as detailed in Chapter 5 of the Copyright Act).

So, in order to avoid these consequences, it is important for performing arts students and professionals to be aware of the copyright issues regarding musical works and to know how to use music legally.

Why do I need this guide?

Copyright law can be extremely complicated and it can be daunting to know where to begin finding out what you need to know. This guide is will also lead you to reliable sources which you can use to find more information.

Another important consideration when it comes to copyright for performers is that there are often multiple copyrights to consider for every recording and/or performance. To make things worse, these separate copyrights are often owned by different copyright holders. Take the following example:

  • Ludwig wants to write a song using the words from a play by William.
    • William owns the copyright to his words, so first Ludwig will need to gain permission to create a derivative work
    • Once that has been negotiated and Ludwig composes the song, Ludwig owns the copyright to the music.
  • Now Martha wants to choreograph a dance work set to this song.
    • She needs permission from both William and Ludwig to create a new derivative work
    • Martha then must write down or record her choreography in some way, and then Martha owns a copyright on the choreography
  • A dance company now wants to perform the work for a live audience and record the performance.
    • They must secore rights to publicly perform the work from William, Ludwig, and Martha
    • If the work has some kind of plot, they will need to secure grand rights before the performance
    • Now the performers, dance company, recording engineers, etc. may have a shared copyright in the recording, and this copyright may be assigned to third parties such as a publisher or record label. (For more information on copyright and sound recordings, see Butler and Jaszi)[1]

[1] Brandon Butler and Peter Jaszi, “Fair Use and Sound Recordings: Lessons from Community Practice,” in ARSC Guide to Audio Preservation (Association for Recorded Sound Collections, Council on Library and Information Resources, and National Recording Preservation Board of the Library of Congress, 2015), 196.

 

Music

Let's start by talking about Music. This doesn't mean the information here is only relevant to students in the Hall-Musco Conservatory, it will outline important matters that are important for any dance or theatre performance that use music as well.

When it comes to copyright law, there are many ways in which music is treated differently from other copyrighted works.

First, it is important to know that copyright law makes an important distinction between music that is dramatic versus non-dramatic. Music that includes dramatic elements, including choreography or dialogue that advances a plot, involved different rights and necessitates different licenses. The Copyright Act does not explicitly define what constitutes a “dramatic work,” but according The American Society of Performers, Composers, Authors, and Publishers (ASCAP), an organization that provides licenses exclusively for non-dramatic works, “the line between dramatic and non dramatic… depends on the facts,” and “a dramatic performance usually involves using the work to tell a story or as part of a story or plot.”[1]

As mentioned in the introduction, another way in which music has special copyright considerations is in the compications of sound recordings. A musical sound recording (e.g., an album or a recorded track) always contain at least two copyrightable works: 1.) the musical work (e.g. a song and its lyrics, a musical score) and 2.) the sound recording itself (the sounds recorded, mixed, and stored). The copyright on these works is often held by separate owners, with the composer and lyricist owning copyright on the work and the record company, recording engineer, and/or producer owning copyright on the recording.


Notes:
[1] “Common Music Licensing Terms,”ASCAP The American Society of Composers, Authors, and Publishers, Accessed August 2,2014, http://www.ascap.com/licensing/termsdefined.aspx.

 

Dance

Perhaps the most important consideration for dancers creating new choreographic works is to remember that copyright can only be granted once a work has been “fixed in any tangible medium of expression.” This means that if someone steals your choreography before you ever recorded it in some way, you have no claim to authorship and cannot claim ownership of the copyright.


See the next section on "What is Copyright?" to gain a better understanding of this context.

 

Theatre

Remember that a work—that is the story, the plot, the dialogue, etc.—can be copyrighted, but some individual elements cannot. For instance, you cannot copyright a title, names, or characters because they are not works themselves. You may be able, however, to trademark some of those elements (but trademark law is separate and distinct from copyright law).

As attorney Gordon Firemark has said, “Copyright protection for elements beyond the script and music of a theatrical show is an unsettled and ambiguous area of law.”[1] Stage directions, for example, may not be copyrightable, and often were created under "work made for hire" agreements, which means that the stage director's contract might preclude owning copyright over his/her work. (To learn more,read Firemark, 2010).[2]



[1] Gordon Firemark, “‘Urinetown’ Creators Get Pissy about Midwest Productions,” Entertainment Law Offices of Gordon P. Firemark, accessed August 30, 2015, http://firemark.com/2006/12/05/urinetown-creators-get-pissy-about-midwest-productions/.

[2] “Should There Be a ‘Director’s Copyright’ in Stage Directions? (Reader Survey),” Entertainment Law Offices of Gordon P. Firemark, accessed August 30, 2015, http://firemark.com/2010/06/24/should-there-be-directors-copyright-stage-directions-reader-survey/.

 

Section 1101: Performers' Rights

Section 1101 or the Copyright Act makes it illegal for someone to record your performance without your permission.

From Copyright.gov:

§1101 . Unauthorized fixation and trafficking in sound recordings and music videos

(a) Unauthorized Acts. - Anyone who, without the consent of the performer or performers involved —

(1) fixes the sounds or sounds and images of a live musical performance in a copy or phonorecord, or reproduces copies or phonorecords of such a performance from an unauthorized fixation,

(2) transmits or otherwise communicates to the public the sounds or sounds and images of a live musical performance, or

(3) distributes or offers to distribute, sells or offers to sell, rents or offers to rent, or traffics in any copy or phonorecord fixed as described in paragraph (1), regardless of whether the fixations occurred in the United States, shall be subject to the remedies provided in sections 502 through 505, to the same extent as an infringer of copyright.[1]



[1] U.S. Copyright Act, 17 U.S.C. §1101.

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