Websites, Scripts and Copyright
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URL: http://www.communitytheater.org/forum/forum_posts.asp?TID=4899
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Topic: Websites, Scripts and Copyright
Posted By: Scott B
Subject: Websites, Scripts and Copyright
Date Posted: 12/16/10 at 1:27am
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I was wondering what the copyright laws were regarding the postings of select readings from scripts. For instance ... an audition is coming up for your show and you know what selection you want people reading for the various parts. Can you post a page of dialogue on your website with the character's names so they can either read it, download it or print it out? Thanks - |
Replies:
Posted By: jayzehr
Date Posted: 12/16/10 at 9:33am
| I'd check with the company you're paying the royalties to. Samuel French, Dramatists, etc. |
Posted By: SeanReidLaw
Date Posted: 1/27/11 at 11:14pm
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It's possible that this practice could fall under fair use, however there are alot of questions that need to be answered first. If you don't wish to contact every performance licenser for every show, you could work with an attorney to develop general policies about the posting and distribution of sides for your theater company.
To give you an idea, variables could include: - How much of the total script will be posted. - How long the sides will be available - Whether the theater company is a nonprofit (presumably it is.) - How sides are presented. (Have they been edited?) Often the first response to a suggestion such as this is that lawyers are just too expensive. They don't have to be. There are plenty of attorneys and nonprofit legal organizations out there that work in the arts and provide these services either at an affordable rate, or even pro bono. |
Posted By: NDTENOR
Date Posted: 1/28/11 at 1:54am
| I'm not saying that I know the specifics of the law but I have had call-back to a few smaller professional theaters where I was supplied some "sides" of music and readings over the internet in e-mail from the show. My feeling is that it seems unlikely that these theaters would risk putting themselves at odds with licensing companies unless they could legally do it. And these theaters undeniably had already obtained production rights for the show . But again, I don't know the specific details of copyright laws. But only that I know some theaters that do it. |
Posted By: David McCall
Date Posted: 1/28/11 at 11:28am
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There is an old saying "It is easier to get forgiveness than it is to get permission". Words to live by? Some people do. Technically there is very little you are allowed to do with a script beyond performing the show as written and only for the audience you licensed it for. This applies to audio or video recording, duplication of any kind, etc., etc.. This should not be construed as legal advice in any way. However, I personally have never heard about anybody getting into trouble for such activities. Although there is not much legal difference between keeping an archive in the theater compared to selling DVDs in the lobby or online, in practice, you may have a very hard time finding anyone that has been shut down for keeping an archive. Providing the odd page for auditions most likely won't draw much attention unless an actor is pissed about not getting a part they wanted and turns you in. ------------- David M |
Posted By: Rorgg
Date Posted: 1/28/11 at 11:54am
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You don't list where you are, and this kind of issue varies from country to country. BUT, if you're in the U.S., you should be clear on this under the terms of Fair Use, as listed above, as long as the distribution is limited (mail your auditioners a URL that's not linked to publicly), confined to a reasonably small amount of the script, and you've secured performance rights and own a copy legally. IANAL, but even copyright lawyers will tell you that Fair Use is a very grey field. Fortunately, intent is usually a large part of any decision, as is profit. I'd say if it came to a head, odds would be strongly on your side, but chances are that it'd never get that fair -- because: 1. The publisher would probably never know; 2. If they did, they probably wouldn't care; 3. If they did, they'd have to win; and 4. If they did, the damages would probably be so small as to make their action not worthwhile. |
Posted By: David McCall
Date Posted: 1/28/11 at 12:10pm
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Most of the copyright issues I’ve heard of have resulted in a “cease and desist” order. In other words; if you don’t stop right now we are coming after you. ------------- David M |
Posted By: SeanReidLaw
Date Posted: 1/28/11 at 12:12pm
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It occurred to me that in my last post I failed to provide any explanation of the fair use doctrine in copyright law. (I realize many may know this, but many also don't, so if you do I apologize.) Basically, fair use allows people to use copyright protected material without needing to obtain permission from the copyright holder. Whether a use constitutes fair use is evaluated on a case by case basis based upon several factors. http://www.copyright.gov/fls/fl102.html
The fact that other theaters do this certainly works in the favor of fair use, however, it comes down to a totality of the circumstances. Including those factors I mentioned above. It's also worth mentioning that in the case of the theater company I am directing for, use of script portions for auditions is a standard part of their contract with the playwright. (They do new works so they have the luxury of using their own contracts.) David raises an important point. It is certainly an evaluation for your theater company to make as to whether they risk being sued. David, I do have to step in regarding your second point though. This is not to start a fight , but because it might also help shed some light on what kind of lines exist in this area. As far as copyright law is concerned there is a HUGE difference in copyright law between making an archival copy and selling copies in the lobby. If the rights do not include permission to make an archival copy, a case can generally be made that an archival copy falls under fair use. (As always the specific circumstances may effect this) The difference here is that with the copies in the lobby: A. You are making several copies and distributing them to the public which is a right reserved to the copyright holder. With an archive copy you are making one one copy, and your not going to be broadcasting it to many audiences. (Come to think of it, in all the years I've done theater I don't think I have actually ever seen any of the archived copies of shows I've been in. Or the pictures from photocall come to think of it) B. You are selling these copies (presumably for a profit) also a right reserved to the copyright holder. Obviously with the archival copy you are not selling the work It is extremely unlikely that these two differences will still protect you under fair use. |
Posted By: Spectrum
Date Posted: 1/28/11 at 1:49pm
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"B. You are selling these copies (presumably for a profit) also a right reserved to the copyright holder. Obviously with the archival copy you are not selling the work."
I'm not sure the profit motive has any influence on it at all. If you were giving copies away for FREE, it is still a violation of the copyright law, UNLESS the royalties or 'license fee' is paid for every copy distributed. Just my two cents worth.  ------------- Growing old is mandatory. Growing up is optional. |
Posted By: SeanReidLaw
Date Posted: 1/28/11 at 2:15pm
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In some ways you are correct. It's very possible that even giving copies away in the lobby for free will be enough to not meet the fair use requirements.
I mentioned the profit aspect because the first prong of the fair use analysis specifically looks at whether the use is commercial in nature. Courts generally view this as whether a profit is being made. Although there are some exceptions, in general if a profit is being made, that is a nail in the coffin for any fair use claim. |
Posted By: Scott B
Date Posted: 1/28/11 at 7:07pm
Thank you all for your insight. The above statement is what I've seen in other areas of copyright as well. I'm reasonably sure there would be no actual "damages" that a copyright holder could show, but it's not anything that I would want to just dismiss either. I've seen it done before by other theatres (including a university) and it just made me wonder if it was a good way to prepare the actors. We do purchase all the scripts, so that's not an issue. Great dialogue. |
Posted By: JoeMc
Date Posted: 1/28/11 at 7:27pm
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this might be like hoying a lit smoke in the bush! Which came up on a pohmy comeatre forum recently;- http://amdram.co.uk/forums/index.php?showtopic=6081&pid=128672&st=0&#entry128672 - http://amdram.co.uk/forums/index.php?showtopic=6081&pid=128672&st=0& # - entry128672 I wonder if this how J K Rowling was successfully able to gain an injunction to stop a 'Harry Potter Fancy Dress Party' taking place a few years ago in the UK? ------------- [western] Gondawandaland "Hear the light & see the sound! TOI TOI CHOOKAS {may you always play to a full house!} |
Posted By: museav
Date Posted: 1/30/11 at 10:13am
I'm not sure how much difference being a non-profit makes. While profit or the motive of profit may make it easier to show damages and intent, simply being non-profit or making no related profit does not alter the damages a rightsholder incurs. People seem to sometimes forget that copyright law was developed to protect the rightsholder.
Back to the OP, I would guess that posting it on a web site could be a significant factor. Unlike physically handing something to someone or even an e-mail where you directly control the distribution in a one-to-one manner where you know and control who you distribute it to, posting on a web site may be seen as a form of public distribution. If you had a secured portal for which you could limit access and track how many people, and who, viewed or copied the information then that might be seen as limited distribution. ------------- Brad W. |
Posted By: NDTENOR
Date Posted: 1/31/11 at 12:47pm
| Speak of the devil..... yesterday I just got an e-mail musical "side". I would prefer not to say from who but it is from a "smaller" professional theater that has academic affiliations and I think if this group did not have clear permission to do this and some problems arose then somebody job might be on the line. I say again.... I don't know the law and I don't know what permissions this theater may have recieved. |
Posted By: Rorgg
Date Posted: 2/01/11 at 12:18pm
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Sean covered it very wel. Bottom line is: in the scenario originally asked -- in the U.S. -- this almost certainly falls under the umbrella of "Fair Use." Noting, of course, that Fair Use has vague boundaries and is judged on a case-by-case basis. |
Posted By: SeanReidLaw
Date Posted: 2/01/11 at 1:01pm
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My intent with this response is not to pick fights. In my experience, copyright law is an area subject to rumor and misunderstanding. My goal is to correct some important misconceptions so that people can make an informed decision about the risk they are willing to take on. Ultimately, whether your company decides to post sides is up to you, and the risk you are willing to accept. I'm just trying to make sure that there is a clear understanding of those risks when i can. (obviously as I said before consulting an attorney in your area is always the best choice)
In regards to the damages comment, it is not always necessary for the holder of a copyright to prove damages such as lost profit). Under certain circumstances, the law allows for damages to be awarded without necessarily proving the amount of damages suffered. These are known as "statutory damages." The amount of these damages to be awarded is set out in the law. As an alternative Copyright law also allows the copyright holder to prove actual damages suffered and recover "actual damages." NDTenor - I'm sorry but I have to contradict you here. While common practice in the industry does merit consideration, basing your decisions on what a specific institution does can be extremely dangerous. (Especially if it is affiliated with an educational institution.) Educational institutions do not have a great track record when it comes to copyright law. |
Posted By: NDTENOR
Date Posted: 2/02/11 at 6:41pm
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Mr. SeanReidLaw :
I have never made any legal assertion as far as sending "sides" via the internet but have only reported that , to the best of my knowledge, it occurs. The same could be said that I have knowledge of people who make DVD recordings for their personal record of the community theater shows that they participate. And I even know some people who actually use their computer to rip the songs from CD's that they borrow at the library or their friends. Yes...... there is evil and illegality all around us.... and we must not let it pass unnoticed! |
Posted By: SeanReidLaw
Date Posted: 2/02/11 at 8:17pm
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NDTenor:
I fear that I may have offended you in some manner. That was not my intent. Maybe I misunderstood your previous post. If so, I apologize. When I read your previous comment, it was the following section that caused me to think I should perhaps respond:
I would estimate that 75% of the time I speak with people about copyright law, I find that they have either based their past copyright practices on, or don’t understand why they can’t base copyright decisions on a version of the following: “Well X does this and they are a pretty well known university/organization/corporation. Surely they would not do so if it violated copyright law. Therefore, this is probably okay to do.” When I explain to the person some of the issues that this university/organization/corporation has faced or could face because of their action, the person is usually quite shocked. I then explain that there may be a means to do what the person originally wanted to do based on the requirements of the copyright law, instead of what another is doing with the law. When I read your previous post, I was under the impression that you were putting forth an idea similar to the one I usually dissuade others of. If that was not the case, then clearly I was mistaken. My response was not intended to cast a judgment on you or others. I did not intend to imply or suggest that you, the theatre you received the side from, or the academic institution it is affiliated with or any of its employees, contractors or volunteers are in any way involved in acts that violate the copyright laws. I would also submit that whether violating the United States or International laws of copyright is an “evil” act is a discussion for a different time, and probably a different message board. I am not here to judge anyone. Generally, after I explain to people why I wouldn’t suggest that they base their decision on the concept that if X does it they can too, I tell them that my goal is to provide them with additional information so they can make an informed decision. Ultimately, they are free to ignore what I tell them and utilize whatever means they see fit in making their decisions. |
Posted By: NDTENOR
Date Posted: 2/02/11 at 8:57pm
| It was a joke bro..... chill... |
Posted By: JoeMc
Date Posted: 2/03/11 at 2:30am
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G'donya SEAN on your posts have cleary chucked light on the topic here, through this rather sticky wicket & it's potential mine field.
You make good simple points in order to clarify some of the home grown myths that are cultivated in this game, which invariably end up becoming more like the old 'Chineese Whispers' outcome of, "send three 'n four pence, we are going to a dance!". Since the original simple Pohmy '1735 'Engravers Copyright Act' [a.k.a the Hogarth Copyright Act']. I'm sure willy hogarth in order to gain royalty fees by protecting his intellectual property or out of fear of a forced holiday, like Dick his father, in the Fleet Gaol debtors prison.
We subsequently bunged up the dunny with that much bog roll it makes it difficult to flush & clear easily. Maybe you could hoy together and Idiot proof a dummies guide on the subject.  ------------- [western] Gondawandaland "Hear the light & see the sound! TOI TOI CHOOKAS {may you always play to a full house!} |
Posted By: SeanReidLaw
Date Posted: 2/15/11 at 6:59pm
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I have been trying to put together an a guide that theaters could use for copyright issues. It's incredibly difficult because of all the variables. Of course, it's no replacement for getting together with an attorney to put together policies for your company.
If I do manage to put together something I am happy with, I will try to check back in this thread. There are some guides out there already that address theater and fair use. They may be of some use. As I have never been over thrilled by any of them, I don't have one to specifically recommend. |
Posted By: Rorgg
Date Posted: 4/06/11 at 2:50pm
Not exactly responsive, but perhaps illuminating. I did run into this over at Dramatist's:
And here's from the copyright office on Fair Use:
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Posted By: museav
Date Posted: 4/23/11 at 12:18pm
Just to avoid a common misunderstanding, "educational" and "teaching" are not referencing schools and teachers in general, they refer to the act of face-to-face teaching and being directly related to an established curriculum. Many groups use school facilities and sometimes believe that this means that any events there are considered "educational" when the reality is that even many school events are not educational as used in copyright law. The same kind of issues apply to churches where something related directly to "worship" or "religious services" is different than simply being related to a church facility or religious organization. In both cases it is the related act, not the title or location, being referenced. ------------- Brad W. |