Performance copyright

An increasing number of arts and performance-based institutions are putting repositories together to hold recordings of dance, theatre and other performance art created and performed by students and staff. Making these recordings available via a repository raises significant copyright issues, in particular the need to obtain permissions from creators, performers, and potentially members of the crew. Prof. Charles Oppenheim has kindly allowed us reproduce the following summary, which first appeared on the JISC Repositories Discussion List.

Engineers' and Technicians' Rights

If the sound recording engineers, etc. are employees of the HEI, and they have made the recording as part of their employee duties, then copyright automatically vests with their employer, the HEI, so no permission is needed from them. If, on the other hand, students made the recording, then they will own the copyright in the sound recording, and their permission will be required before one can copy or disseminate the recording. The same might apply to research assistants or academic staff where, arguably, making sound recordings is not part of their employee duties – again, permission would have to be sought from them.

Performers' Rights

Problems arise with the performers. Performers get a right separate from copyright called performers' rights (surprise!). You need their explicit written consent for recording their musical, dance, theatrical, etc., performances, and separate consent for publishing the recorded performance in any way, such as putting it on a repository. It must be stressed that both students and staff have this right, even if the staff are employees of the HEI and their job specification includes doing performances, so permission has to be sought from each individual concerned. Refusal by one individual or, indeed, failure to respond to a request for permission, means that any part of the recording that depicts that individual must be deleted. This is obviously a major burden, and implies that unless you had explicit written permission from the outset, it is best not to put any previous dance, theatrical or musical recordings of performances on the repository. Thus, in a nutshell, if the recording involved any performance, whether dramatic, dance or playing of music, permission is needed.

For the future, you need to get each student and member of staff involved in the performance to sign an agreement consenting to the recording, and putting on the repository that recording. It is legally extremely dubious to insist on this (e.g., "it is a condition of you coming on this programme that you agree to the recording of any dances you perform and putting such recordings on the IR" or "It is a condition of being employed by this HEI that you consent...."). These can be challenged in Court. It really is far safer to get individual consent forms signed. Performers' rights apply to both the dancers and the live musicians, singers, etc., so get clearance from every one of them .

Music Rights in Performances

There are also copyright issues with any music involved in the performance. Assuming the rights to the music are not owned by the HEI (i.e., it is not music specially written by someone in the HEI whose employee duties require him/her to write such music), you need to get permission from the rights owner(s) (composers typically, but they have often assigned their rights to commercial organisations) for reproduction of the music on the recording, and putting it on the repository.

Commercial music publishers and their rights representatives are very aggressive about these things, and will either refuse, or charge large sums for such permission, and they don't hesitate to sue if they discover infringement is occurring.

If the music played in the performance is being played from a commercial recording (e.g., this is a dance routine being performed to a selection of music from a Beatles CD), then permission must always be sought from the rights owners before placing a copy of the recording on the repository; indeed, permission should have been sought in the first place to use the music for this purpose, but even if such permission had been sought, and granted, that would not necessarily mean one could put the resulting performance on the repository

Note that at present, the copyright lifetime of sound recordings is 50 years (soon to go up to 70 years), so a sound recording dating from before then is out of copyright as a sound recording – though there may still be copyright in the original music or words – this lasts for 70 years after the death of the original creator.

All told, this area is a potential nightmare for HEIs, who should proceed with extreme caution!

Artistic and musical works

Increasingly, HEIs are putting original artistic and musical works into their IRs, e.g., copies of graphical works or of pieces of music created as part of research or teaching activities. The same basic ground rules apply, i.e., if it was created by a member of academic staff and is arguably created as part of their employee duties, whether for teaching or research, then no formal permission is required from the academic as the copyright belongs to the employing HEI. On the other hand, if the work was created by a student, or by a member of staff who was not required or expected to create such items, then it was not created as part of employee duties, and so permission must be requested to place a copy of the work on the repository.

But can't I do all this under exceptions to copyright?

The well-known exception to copyright, i.e., fair dealing, might lead you to think means that no permission need be sought when putting something onto the IR. Unfortunately, although there are good arguments that copying an artistic or musical work for the purposes of non-commercial research or private study is acceptable, there is no such exception to performers rights or sound recordings rights, and in any case, it is doubtful that placing something onto a repository is for the purposes of a particular individual's non-commercial research or private study, as potentially it could be used for other purposes. Note, too, that education is NOT part of the fair dealing exception, and what educational exceptions there are so limited as to not permit placing copyright materials on a repository. However, there is hope that in the future the Government will expand the range of exceptions so that fair dealing will apply to sound recordings and to performers rights, and that educational exceptions might be expanded to include placing on a repository. But all that is (maybe) for the future. At the moment, exceptions to copyright don't help at all. There IS an exception for all copyright works, including films, sound recordings and for performers right for the purpose of criticism or review, but again, it may be difficult to argue that placing the item on the repository is purely for that purpose. All told, my advice is:

1. Always ask for permission from those directly involved in the creation of the material, unless they have created it as part of their employee duties.

2. Never place on the repository anything that includes any commercially produced music, other sound recordings, films, etc., unless explicit permission has been obtained. It makes no difference how small a piece it is.

3. Always ask for permission from all people involved in performing the work

4. Very old works, e.g., a 1960 sound recording of a piece of music written by Vivaldi, is out of copyright and performers' rights, so can be used on the repository.

Prof. Charles Oppenheim

Updated September 2011