BY:Neil J. Rosini, Michael I. Rudell
(As originally published in the Entertainment Law column in the New York Law Journal, Friday, June 25, 2010)
Arts organizations and venues that present live performances use their websites to promote the sale of tickets and achieve other important goals relating to marketing and membership development. As is widely known, the available tools go well beyond identifying available seats and collecting credit card information. Websites can include a digital buffet of audio and video content, photos, artwork, biographical sketches, analyses of the works presented — and more — that will enhance the online experience, increase consumer awareness and better entice visitors to fill their seats.
The process of clearing rights to present a live-on-stage performance has become familiar territory to dance, music and theater companies as well the venues in which their performances are booked (collectively “performance organizations”). But the added clearance effort that may be required before uploading material to a website isn’t necessarily a top priority when the material is created or acquired by the organization. The scope of licensed use for pre-existing materials – such as permission by a freelance writer to include an article in a printed program – simply may not extend to a website. And exploiting music for promotional purposes online has much in common with using music under most other circumstances: unseen pitfalls in a complex landscape of multiple rights and rights holders.
Clearance concerns like these aren’t unique to any particular category of website or site owner, but well-established performance organizations may have more to contend with than most because of the depth of materials they have at their fingertips, like archives of photos, years of printed programs, collections of video and audio recordings and images, some of which may come from performing artists who don’t own rights in them. Also, performance organizations can create recordings of live performances that may not be intended for public consumption at the time they are made or cleared for it. And performance organizations have live audiences whose publicity and privacy rights also must be taken into account.
This article will discuss issues that arise in the context of organization-commissioned materials by employees and third parties; use of third party materials; and privacy and publicity rights of performers and audience members. Key questions include: What might stand in the way of using the materials the organizations have created or commissioned for themselves? Who owns or controls rights in other third party materials? What rights must be cleared in musical compositions and recordings as well as the names, likenesses, and performances of those seen or heard? What clearance issues arise from using live streams of performances? And when must collective bargaining agreements be taken into account?
In-House and Commissioned Items
Performance organizations often create or commission their own material, like articles for programs, photos of performers in concert, educational guides, synopses, videos of performance excerpts, and audio recordings. The natural impulse is to select from these items for online use as they seem invitingly available. But copyrights, contracts, or a combination of both still might pose obstacles, just as when items are created by unrelated third parties.
If the materials were created by “regular” employees in the course of their employment, they are works for hire under the Copyright Act and the performance organization is deemed the author and owner of copyright. It has no need to ask permission from employees who wrote the words, drew the art, or captured the sound or images before putting them to work on a promotional website or anywhere else – unless of course the employees benefit from a contractual promise to the contrary, which would be uncommon. The situation may be different, however, when employees are performers whose performances are embodied in a recording or stream. For example, even though the copyright in a recording or live capture of music handled by employees may belong to the organization, the use of that performance online may be restricted by agreements with individual performers and collective bargaining agreements that only lately have begun to be negotiated with website uses in mind.
Often materials like these are commissioned from independent contractors rather than regular employees. If their work falls into one of nine categories stated in Section 101 of the Copyright Act and both the employer and the employee sign a work for hire agreement, then their work product will be owned by the performance organization just as if the creators were “regular” employees. Although those nine categories have their limits, they include works specially ordered or commissioned for these uses: as a contribution to an issue of a monthly magazine or other collective work (in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole); or as a compilation (a work formed by the collection and assembling of preexisting materials that are selected, coordinated or arranged in such a way as to be considered, as a whole, an original work of authorship—including collective works); or as a part of a video or other audiovisual work; or as a translation– of lyrics for example. 1 Many other items suited to online self-promotion are not found in these categories, such as anything created “on spec.”
Even if a specially-ordered or commissioned work fits into a work for hire category, the independent contractor may refuse to accept a work for hire arrangement. This is often the case, for example, with professional photographers who may not accept a work for hire arrangement for the fee offered, opting instead for additional payments when further uses are sought.
A work not born a work for hire still can be assigned to a performance organization, which then will own and control it for all purposes, but this too requires a writing to be effective. The same independent contractors who resist becoming employees for hire are not more likely to become assignors.
A performance organization considering the use on its website of a photo, video, audio recording, or other work that it commissioned but does not own already might have acquired the necessary rights by license, but that authorization must be established by finding and checking whatever documentation exists or by determining the extent of the license by other available means if documentation is lacking. Licenses often contain limitations on the media, term, and territory of use; or are limited to use in connection with a particular production or event or even a particular promotion of a particular event. Including an item in an online “highlights” collection, for example, may lie well beyond the scope of granted rights.
Even with assignments and works for hire, the written, executed document that makes the performance organization owner of copyright still might limit usage or require further compensation for uses beyond the one for which the work was commissioned. As a result, the organization may own the copyright but its scope of exploitation still may be limited. In retrospect, it may have made more sense to clear all rights at the outset or negotiate an option for a determined price, but at the time the cost of doing so or the time required for a negotiation might have seemed prohibitive, particularly when subsequent uses are conjectural.
To sum up, in many instances the fact that a performance organization was responsible for creating or commissioning an item that it now wishes to upload to a website doesn’t mean it can do so without first obtaining authorization from individuals who created it and paying a price.
Use of Third-Party Materials
One must also consider whether it’s necessary to clear rights in copyrighted works of third parties that are embodied in each item to be included in the website. Even employee-created material may incorporate third party materials like song lyrics or a performer’s image or a composer’s overture for which further third-party clearances are needed. This same layer of concern applies to music, sound recordings, text, photos, video and artwork that are not commissioned by the performance organization itself. For example, if a theater company wishes to upload a video of a scene from a play, it may need permission from the actors and director, from the play’s copyright owner, and perhaps even from the copyright owner of an earlier novel or play on which the play was based.
Use of music is commonly complicated. In virtually every musical sound recording 2 there are at least two copyrightable works and two copyrights, assuming neither work has fallen into the public domain. 3 First, there is the copyright in the underlying musical composition written by a composer (which in the glory days of sheet music usually was reduced to tangible form in musical notation on a piece of paper, but today may be found only in electronic incarnations). Second, there is the sound recording that embodies a performance of the composition in digital or analog form. In considering rights clearances, the threshold question is who owns the recording, but even if that entity is the performance organization itself, third party rights in the underlying musical composition will usually need to be licensed if not in the public domain.
If a third party — most frequently a record company – owns the copyright, permission generally must be obtained from it even if the artist has authorized the use. A recording artist is rarely the copyright owner of a professionally-produced sound recording. Even the use of relatively short excerpts may infringe copyright or contractual restrictions whether or not the setting is promotional. There is no compulsory license: the compulsory license scheme in the Copyright Act for web radio that involves payments to Sound Exchange has no application to promotional uses and there is no compulsory license for downloads of sound recordings at all.
A license also must be obtained from the copyright owner of the second copyright — the musical composition being performed in that sound recording — usually from a third party music publisher or someone acting on its behalf. (Even if the musical artist composed the music, he or she is not necessarily the current owner of copyright.) If the sound recording is being streamed, and the musical composition performed is non-dramatic, a blanket license from ASCAP, BMI or SESAC would cover performing rights. If the sound recording is offered as a download and the musical composition performed is non-dramatic, the compulsory license provisions of Section 115 of the Copyright Act (17 U.S.C. §115) will apply unless waived by the copyright owner. Otherwise, a license must be obtained from the copyright owner. 4
There are further permissions, too.
Privacy and Publicity Rights
Selling tickets is a commercial enterprise which not only weighs against fair use treatment in a copyright sense but also creates exposure for violation of publicity and privacy rights. Referring to artists by name, showing their photos, and playing their performances for the purpose of selling tickets, generally requires their permission. This detail is often covered in the performance contract between the artist and a presenting artistic company. Collective bargaining agreements may provide the organization with the requisite rights, but they also must be consulted to ascertain the rights, restrictions and costs associated with the desired usage.
For the same reasons, photographs of recognizable audience members entering and exiting a venue, offering favorable comments, or applauding a performance should not be included without permission, unless the images are small and “incidental,” such as in a depiction of a very large group. This rule may be bent when photos of celebrities or audience members are confined to a separate section of a website that is informational rather than commercial, like photo coverage of opening night. These uses may be First Amendment-protected if markedly distinct from the ticket-selling function.
Also, placing a notice of intended promotional photography accompanied by a waiver (“if you take your seat, you waive the right to object…”) on ticket backs, the “shopping cart” page of a website, or a prominent sign posted at the entrance of a venue, may serve not only to clear rights but also to discourage audience members from pursuing frivolous claims. Use of audience images still should be judicious, however; a posted notice or a terse statement on the back of a ticket may not support a featured role in a promotional campaign, online or otherwise. And it may be of no use at all when it comes to minors.
As websites increasingly became valuable tools for performance organizations, clearing rights for online uses of content should not be an afterthought. Focusing on right clearances required to make optimal use of websites at early stages of creating or acquiring content can save performance organizations time, effort and expense.
1 17 U.S.C. §101; see, in particular, definitions of “work made for hire,” “collective work,” “compilation,” “motion pictures” and “audiovisual works.”
2 In the United States, sound recordings made before February 15, 1992 were not afforded – and still don’t have — protection under federal copyright laws. But, they do have protection under state common law copyright and the law of misappropriation that will endure in many instances as far as the year 2067. See 17 U.S.C. §301(c) and Capitol Records, Inc. v. Naxos of America, Inc.,. 4 N.Y. 3d 540 (2005). For purposes of rights clearances, they are not distinguishable from copyrighted sound recordings for practical purposes.
3 Musical compositions published before 1924 are in the public domain in the U.S., which means that sound recordings of classical compositions by 18th and 19th century masters tend toward one copyrighted work rather than two. However, new arrangements or substantially edited versions of old compositions may enjoy copyright protection as derivative works in which rights must be cleared even when the musical composition on which they’re based has long reposed in the public domain.
4 It has been argued that permission must be expressly obtained for buffer and storage copies of musical compositions and sound recordings and similar uses that are ancillary to licensed streaming and downloads. This is at best an open question, especially in light of industry practice that seems rarely to acknowledge the need. When permissions are obtained from music labels, music publishers, or their representatives, however, the opportunity is presented to clear those ancillary uses, too, which should be taken.