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DPChallenge Forums >> General Discussion >> Copyright, Fair Use, and "Cannot be Photographed"
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 11/30/2006 10:09:47 PM · #1
I know we've discussed this before regarding photographing buildings, etc., but the issue of what you can photograph came up again tonight for me personally, in a different sort of "case".

My son is in a local theater company play. Tonight was a special pre-opening performance and I thought it would be a good chance, with the theater not completely full, to take some pictures. At the beginning of the show, they announced no flash photography and no taping.

Actually I spoke with the director yesterday when I went to pick up my son at the rehearsal, and he said pictures were ok, but we could videotape (at least he said he wasn't allowed to "let us" because of copyright laws. (The play is Oliver.)

So tonight I went to shoot at the show. I was out in the open on the side, with no one near me. But I got the tap on the shoulder, "You can't take pictures". But I am not using flash, I said. She said, you can't take any pictures, because of copyright.

So I want to open that as the issue of discussion. Since the pictures weren't for commercial use, why does copyright apply? (I don't think it does). I did stop taking pictures when she asked, however. But I am going to two more performances, and would like to grab a few more.

Second, my son and another friend in the play really wanted some video to get feedback on their acting. It seems to me, the fair use clause covers this:

Fair Use

The "fair use" of a copyrighted work, including use for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright. Copyright owners are, by law, deemed to consent to fair use of their works by others.

The Copyright Act does not define fair use. Instead, whether a use is fair use is determined by balancing these factors:

* The purpose and character of the use.
* The nature of the copyrighted work.
* The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
* The effect of the use on the potential market for, or value of, the copyrighted work.


What do you think? Does the fair use doctrine apply if it's for several of the actors educational (improvement) use? Is this still valid (I got the above from //library.findlaw.com/1999/Jan/1/241476.html)

If fair use applies, the question then is whether or not to see if I can convince the director that we should tape the whole thing to give to any interested cast member for feedback? (He sort of sounded like he would have liked that, but copyright prohibited it.)

So for everyone's interest, let's see if anyone here knows enough about copyright law to make any real definitive statements?

11/30/2006 10:25:20 PM · #2
I'm not a lawyer, but I woulda followed the shoulder-tapper home to her village...

;-)
 11/30/2006 10:27:09 PM · #3
This is interesting...

The 'performance' of the play would be copyrighted to the performance company... not the author/writer of the play.

For instance, if I created a photo slideshow of YOUR photos, the photos are still copyrighted to you, but my presentation of them is copyrighted to me...

Something to think about...
 11/30/2006 10:28:39 PM · #4
I don't know about the technical answer but it's pretty pathetic when a father cannot take some images of his son. You clearly went out of the way to discuss ahead and sounds like you were not using flash or hurting anyone else e.t.c.

I presume the copyright police had no real answer other then "not allowed" right?
 11/30/2006 10:35:06 PM · #5
That is the stupidest thing I've ever heard of! I have been in approx 30 or so plays and musicals throughout my life and I have nearly every single one of them on video (and pictures). Never once has there ever been a copyright issue. Paaaleeeezzze. Ridiculous. Next time do it anyway. What are they gonna do...really...For heavens sake it's not Broadway!
Phew. That got me worked up! :)
 11/30/2006 10:39:57 PM · #6
Originally posted by robs:
I don't know about the technical answer but it's pretty pathetic when a father cannot take some images of his son. You clearly went out of the way to discuss ahead and sounds like you were not using flash or hurting anyone else e.t.c.

One person taking pictures, with permission or without, is often very distracting for everybody else in the theater - the actors, the audience, the stage manager, the crew, everybody. It's a live show with people trying to remember a dozen different things at once; the last thing they need is something else to worry about.

If you're talking about some elementary school play or pageant where a bunch of small children are on stage looking adorable in their homemade octopus costumes while a crowd of beaming parents and grandparents (and bored siblings) watch, then that's a another matter entirely.

But for a (semi-)professional theatre company, their primary concerns is the art and the audience's enjoyment. The theatre will often have a photo call at some point after a performance where a staff photographer (or, for smaller, poor theatres, a friend of the theatre) will take pictures of appropriate points in the play. If you're an actor in the play, you might be able to get copies. If you're otherwise involved with the show, you might be allowed to bring a photographer or take your own pictures for personal use (scrapbook, portfolio, etc); you'll need permission from the theatre, usually through the stage manager, to do that.
 11/30/2006 10:45:35 PM · #7
Honestly, I think they are misinformed by the people who "give" out the play "rights". Just like those security guards who claim you can't take a picture of a building because of copyright.

So what I'm really looking for is something "meaty" and official looking I can show to the director. I'm not sure if the fair use doctrine is enough. I really want to tape the show! (Originally, I had spoken to him and proposed taping the show and then I would give a DVD to all the actors.)

I think someone has them scared. But these are experienced people, and I presume some part time professionals; it's a theater company, not a school play. So shouldn't they know better?
 11/30/2006 10:48:01 PM · #8
The bottom line here, as far as copyright law is concerned, is not the act of videotaping or photographing the performance, but the use that the tapes/images are put to afterwards. The theater company, of course, is within their rights to place whatever restrictions they wish on taping/photographing their performances/rehearsals, but to use a vague reference to "copyright" as a justification for their ruling is pretty lame IMO. But this is just a layman's take.

R.
 11/30/2006 10:49:13 PM · #9
For legal aspects of photography I recommend this book:

//www.krages.com/lhp.htm

Regardless of copyright issues, if the photographer is on a piece of property the owner/manager of that property may allow, prohibit, or restrict photography in ANY way they see fit, for ANY reason.

It sounds like there's some miscommunication between the people at the theater. At least the director seemed OK with it. Maybe you could tell him what happened and he will talk with the shoulder-tapper.
11/30/2006 10:51:20 PM · #10
Well, as an actress I can honestly say I have never noticed any photography (as long as there's no flash, obviously) while performing onstage. As far as being an audience member, I suppose it could be distracting. A way to avoid that would be to stand at the back of the theatre.
For future reference, if your son continues to be in productions, go to dress rehearsal to take photos and video.
11/30/2006 10:51:44 PM · #11
I know a little about this area (in multiple ways actually: being a professional in the Film/TV business AND having been the manager of an opera house/theater AND having been an actor in an acting company - lol) the very act of photographing & videotaping live performances is not restricted by any law except if it violates privacy or indecency laws (except, of course, by the owner as mentioned). It is what you do with the product of your photographing/videotaping that becomes a dangerous arena to play in, IOW its the USE of copyrighted material that is governed by copyright law in this case.

As mentioned by elemess, usually the restrictions are more about limiting/removing the distractions that these activities can create. The lady who tapped you on the shoulder was just being a little overzealous - theater rats often get that way...

Message edited by author 2006-11-30 22:53:32.
 11/30/2006 10:52:29 PM · #12
Perhaps an easier approach would be for you to seek confirmation of these "Copyright" rules from the authorities you spoke to. It would seem to me that if there is indeed a legal issue to be considered that they would have that information readily available.

This type of activity does not fall within the "Reverse Onus" realm and it is up to them to clearly demonstrate that undertakings, such as those you are proposing, run afoul of legal parameters.

Just a thought.

Ray
 11/30/2006 11:08:01 PM · #13
You didn't hear it from me, but word on the street is that semi-pro productions of 'Oliver' are in great demand. They could be worried you were going to sell dvd's on the street for profit or even worse, sell tickets to interested passers-by to watch the show on your big screen in your living room!

I'm kidding of course. Honestly, I can't be much help on the legal end, but I do know that I treasure the videos of my past stage productions (school and professional). It'd be a shame for you and your son to not have that to look back on.
 11/30/2006 11:30:23 PM · #14
Thanks. I'm going to try and talk to the director tomorrow before the performance. Either way, it's not a big deal; he's not the star, he has only 16 lines or something (he plays Noah.)

I am just getting tired of hearing "copyright" used as an excuse.

But if you can't beat them, join them. Tomorrow is garbage day. When my wife "reminds me" in the morning to take it out, I'm going to try, "Sorry dear, I can't. Copyright laws!"
 11/30/2006 11:57:04 PM · #15
Originally posted by nshapiro:
Thanks. I'm going to try and talk to the director tomorrow before the performance. Either way, it's not a big deal; he's not the star, he has only 16 lines or something (he plays Noah.)

I am just getting tired of hearing "copyright" used as an excuse.

The director may not have the final say. As mentioned earlier, the company can have any kind of restrictions it wants on its property no matter what the copyright laws say. You'll need to check with the company's administration. Talk to the marketing manager, the company manager, the managing director, or your best bet is the stage manager, who would know who has the ultimate say.

Once you get permission, hide in the back and don't use a flash. Make sure the stage manager and the house manager (and, by extension, the ushers) know it's okay for you to be there.
 12/01/2006 03:16:00 AM · #16
Originally posted by nshapiro:
But if you can't beat them, join them. Tomorrow is garbage day. When my wife "reminds me" in the morning to take it out, I'm going to try, "Sorry dear, I can't. Copyright laws!"

That's it!! Neil, you've given me the perfect idea... *whispers inaudibly*

12/01/2006 05:16:50 AM · #17
fwiw...(and i'll try to keep this constrained to the scenario of photographing a public performance being produced on private property)

if you want to photograph something like this, you need to do your homework well in advance; you cannot just show up with your gear. depending on how you go about it, this can be a LOT more involved than simply getting a single permission. sometimes, you might get lucky and find that all the permissions come from a single source; however, if you don't cover your bases, you can find yourself out of luck if you take things for granted.

what you are looking for is a credential that will signify to all involved that you have permission to do whatever it is that you want to do. for some events, it can be fairly easy (even if it takes a few phone calls), to get a credential. for other types of events and performances, you will have to handle all the details yourself. the following describes what is involved when there is no central credentialling authority for a production.

there are usually three different entities that you need permission from: the venue, the production company, and the performers. for clarification, the production company is the entity that is putting on the event; they handle finding venues, contracting for all the details required to produce the event (lighting, rigging, staging, catering, etc). the 'performers' include all those involved in the actual performance, including the director (for a play), or a band manager. sometimes, the production company and the performers may be represented by a single entity, but you should NEVER take that for granted.

let's look at some scenarios where there are three different entities involved. for example, let's say your son is participating in a play being produced by a local theatre company...

you must have permission from the venue to bring your gear in the door. and this doesn't mean asking the person who can open the door--it means getting permission from someone authorized to give you permission. (this is no different than getting permission from a minor to enter someone's house--just because they opened the door doesn't mean they are allowed to; you need permission from the person who owns the house.) it doesn't matter if the production company and the director want you there, if the venue doesn't want your gear there, it's not going inside. (how could this be? some venues sell photo/video/recording services as part of their package. they don't want others coming in, taking away from their business. this is no different than saying "you can't bring in your own food and drink, you have to buy from our concessions.")

so, let's say you find out who the venue's director of marketing, and you get permission from him/her to at least bring your gear in. that person can also probably help you track down the appropriate person with the production company. depending on the size and scale of the production (is it a local, one-time deal, or is it a nationwide tour), you might be dealing with someone you can actually meet face-to-face, or you might be dealing with someone in another city, over the phone, or via email.

the production company is responsible not just for making the show happen, but also for the show making money. towards that, they don't want anything that could disrupt a show, or create any kind of negative buzz. they want smoothly-run performances that will generate positive reviews that will drive more ticket sales. towards that, they want (and need) to control as much imagery as possible. for example, the company producing an elton john tour does not want photos of elton after he's been pounding the keys for two hours showing up on the cover of people magazine (that's one of the main reasons why band performances are typically constrained to the first one, two, or three songs).

the production company is also typically responsible for purchasing the performance rights for a play. that's right: unless a play has been released to the public domain, a royalty has to be paid to the play's publishing company. publishing companies may have different rates and/or exceptions for different types of productions (a high school musical may be treated differently than an off-broadway production). it becomes the production company's responsibility to make sure that the rights of the publisher and/or copyright owner are not violated. even though it is a lot harder for a still photographer to create an image that would contribute to copyright violation, unfortunately, sometimes, still photographers get lumped in with video photographers and sound recorders.

this is where it gets tricky: you have to deal with the production company, primarily considering how you can do what you want to do, without having any impact on their doing what they need to do. first, you have to find the person who is authorized to permit still photography of their production. second, you have to be able to communicate what you want to do, why you want to do it, what it will be used for, and how you can do it without it adversely impacting them in any way. it might be as simple as saying, "i want to shoot some video of the performance for the performers to be able to critique themselves; i can set up just about anywhere that will be out of your way. no one but the performers will ever see it."

keep in mind, the production company may have already lined up their own photo/video crew just for the purpose of documenting the show. if so, you may be out of luck. if not, maybe they'll be glad to have you do it for them.

so, let's say you are able to get permission from the production company. lastly, you'll need permission from whoever is in charge of the performers. if you have an in, this will probably be the easiest permission to get. in all likelihood, if you have an in, this will probably be the first permission you get, which you will use to leverage the other permissions. the most important thing, though, is NOT to take ANYTHING for granted: if you approach the director with the idea of shooting some video that they can use to critique their performance and the director loves it, do NOT leave it up to the director to get permission for you from the other entities! the best thing to do is to what you want to do typed up for him/her to sign (something along the lines of "we would like so-and-so to assist us in documenting our performance for internal review. please assist him/her with this. if you have any questions or concerns, please contact me directly.").

along these lines, when you get permission from someone, you need to get their name, their title, a contact phone (preferable their cell #), and you need to get the permission in writing.

lastly, when you have permission to do something, stay within the boundaries. if you violate someone's trust, it will be very hard to get back in down the road.

i know this is fairly broad, and that there are a lot of exceptions, but hopefully this will give you an idea as to what's involved in this type of work.

Message edited by author 2006-12-01 05:19:45.
 12/01/2006 05:56:59 AM · #18
I don't have any legal answers, but wanted to post some food for thought about the question,

"Since the pictures weren't for commercial use, why does copyright apply?"

If you think about this from a photographer's viewpoint, how would you feel if someone else copied your photos just for personal use? Sure they might not be selling them...maybe just wanted an image from your website to use as their desktop for personal enjoyment (or scan copies of ordered prints to make a scrapbook, etc.).

I see copyright infringement as a bad thing whether it's for personal or commercial use.
 12/01/2006 07:33:20 AM · #19
I also have some experience with shooting stills at stage productions and agree with Skip regarding the legal requirements put in place by the production company. For plays still holding copyright there can be numerous requirements the theater and director must agree to before being granted the right to perform the play. Videotape is one that can violate usage agreements. I think still photography is in a different class because a still doesn't convey the same information as tape (audio dialogue etc.). Some go even farther - "Little Shop of Horrors" even required building the plant(s) to their specifications.

As for the specifics of your photography, not saying that this applies to you, but parents taking photographs, even without flash, can be very distracting to other theatre goers. The glow of the screens, the fumbling around, moving around, and clicking sounds that some cameras make, all present distractions to an audience.

Two of the schools I shoot for allow still photographs only on the final tech rehersal. A good plan, I think.

Message edited by author 2006-12-01 07:36:00.
 12/01/2006 08:00:36 AM · #20
And one more thought, I don't know if this is the case with your son, but my daughter was in a couple of productions where they sold copies of it on DVD for $20 to the cast. The filming was done by their own people. No photography was allowed there either.
12/01/2006 09:14:46 AM · #21
Originally posted by blazingmoonlight:
I don't have any legal answers, but wanted to post some food for thought about the question,

"Since the pictures weren't for commercial use, why does copyright apply?"


Copyright ALWAYS applies. The exemptions are always relevant, but personal vs. commercial means nothing.
 12/01/2006 09:54:56 AM · #22
www.copyright.gov

Find the information on fair use and then see if you think your purported use fits. I'll give you a hint that the "educational" use exception is VERY much more limited than you argue.

Beyond that you may also find that the set, choreography and other visual/performance aspects can all be the subject of copyright. The act of videotaping can be an infringement of one or more rights, as can taking photographs. Factor in that you probably were doing so on private property against the wishes of those in control of that property, and some attorneys** might suggest that you have a tough position to uphold. :-)

**Of course, the above generalities do not constitute legal advice in any way, shape or form, and cannot be relied upon as such, by anyone, anywhere. Seriously - That is not just whimsical boilerplate language.

From what I have seen, as a group, the members of this site show tremendous outrage when someone is found to have taken a photo off this site...yet, at the same time, tend to feel any right (copyright or other) that inhibits the right to take a photograph is trivial, unfair, ridiculous, etc. Nobody ever asks the person who "borrows" a photo from this site if they thought the rights of the photographer to that photo were trivial, unfair, ridiculous, etc.

Stepping off the soapbox, I would also like to take pictures of my son if he were performing. There is no harm in asking for permission, but maybe you shouldn't get all bent out of shape if they say take one picture and be done with it. They have (hopefully) many people that paid or otherwise are giving their time to watch the performance and may find your repeated picture taking to be a nuisance to and distraction from the show (i.e. it ain't about you and what you want to do - it's a performance for the enjoyment of others).

Hopefully no tone is read into the above as I fully understand your frustration. Some people are unduly restrictive/anal about their rights, but I guess as long as they are consistent in applying them, who are we to tell them how they should view their rights?
 12/01/2006 11:31:08 AM · #23
I think it sounds like a crossup in what the real policy was. Why would they bother to say "no flash photography" in the beginning instead of "no photography" if they were claiming neil couldn't take pictures for "copyright" reasons. It doesn't make sense to me and I think either the person didn't know what to say to try to accomplish his task (get you to stop taking pictures) or he was misinformed about the real policy that was in place.
 12/01/2006 11:44:40 AM · #24
Originally posted by DrAchoo:
I think it sounds like a crossup in what the real policy was. Why would they bother to say "no flash photography" in the beginning instead of "no photography" if they were claiming neil couldn't take pictures for "copyright" reasons. It doesn't make sense to me and I think either the person didn't know what to say to try to accomplish his task (get you to stop taking pictures) or he was misinformed about the real policy that was in place.

this is precisely why i outlined how to deal with this stuff in advance. the people on the frontline rarely are able handle these situations effectively. they either don't have the authority to do anything more than stop you, or they don't know how to explain what you can and can't do. it doesn't help matters when the photographer is carrying a bag and looks capable of doing more than grabbing a few snapshots for the family album...
 12/01/2006 01:50:28 PM · #25
Originally posted by DrAchoo:
I think it sounds like a crossup in what the real policy was. Why would they bother to say "no flash photography" in the beginning instead of "no photography" if they were claiming neil couldn't take pictures for "copyright" reasons.

The "No Flash Photography" is probably a blanket notice put there by the theater -- regardless of what photo rights are allowed by the production company, etc., flash photography would be banned in the building under all circumstances.

Additional restrictions can be (and apparently were) imposed beyond that baseline limitation.

On private property, your right to photograph is subject to the rules of the property-owner or their designated agent. If the play was being performed in a public park, you could photograph away ...
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