Legal Question: Can I sell DVD/VHS Copies of local Ballet Recital For Profit?

Discussion in 'Professional Video Production' started by Alex, Jan 30, 2004.

  1. Alex

    Alex Guest

    Hello,
    I own a television production company that specializes in television
    programs and other local and nationally distributed material. I am
    quite clear about the legal ramifications about copyright protection
    for my work and the work of others on the national level.

    My question has to do with Miss "___'s" ballet dance recital. I am
    about to embark on a new business venture where I video tape the
    performance of the dance recital and then sell the DVD copies of the
    performance to the loving parents of the dancers involved. I would do
    all the production for free and sell the resulting DVD/VHS copies for
    about $30 each. I had one dance studio tell me that they had 300
    parents who buy these videos each year, that close to $10,000 in
    sales.

    Here is the catch. The dance studios use pretty much nothing but
    "popular" music. They create dance steps to film scores, top40 songs
    and many other material that clearly have copyrights. Usaully the
    dance studio owner edits a bunch of tracks on a Pro-Tools suite and
    plays it for the public performance.

    Am I putting myself into a liability situtaion by selling the video
    taped performance? The dance studios do not usually charge for the
    public to see the performance but many do not allow the parents to
    video tape the performance, thus making them buy my tape. I just want
    to make sure that I am protected leaglly? Any advice would be great?

    I also understand that I should get my own lawyer but I wanted to know
    if there are any other video production companies out there that have
    some experience with this subject.
     
    Alex, Jan 30, 2004
    #1
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  2. Alex

    Bill Van Dyk Guest

    Congratulations. You have entered a mine-field.

    There is no doubt that the law now requires you to get permission from
    every one of the copyright holders of the music used and get permission
    and pay royalties. It is also illegal to go 1 mile per hour over the
    limit. The difference is, there aren't thousands of stooges out there
    watching to see if you do it.

    You could ignore the law and see if you get away with it. I don't know
    anybody who has an intelligent guess as to what the likelihood is of
    "trouble", if you did that. There are a lot of nuns out there, whoever,
    who will "tsk tsk" you to death.

    Maybe I'm being unfair to the nuns. Never mind.

    In my view, you should not have to pay any royalties-- you are merely
    recording a performance witnessed by the parents. Since the music
    industry makes no attempt to collect fees from the parents of the ballet
    students, why should they pick on you? They will, if they can, and they
    might. The ballet school is also liable and probably committing a heinous
    act by stealing the music so the children can dance. They are evil. I
    urge President Bush to appoint a presidential commission to investigate
    all dance schools and day cares and figure skating clubs and put an end to
    this widespread and pernicious abuse of intellectual property rights.

    The issue is similar to the wedding video issue-- can you tape the dances
    at a reception without infringing copyright? I understand that Florida is
    now considering lethal injection for wedding videographers who do so,
    unless they are under the age of eight, in which case they only receive
    life imprisonment.

    Personally, I think it's stinky of the ballet school to prohibit parents
    from taping just so they can stack business for a videographer. It
    stinks. The parents paid for the lessons. They're not even asking for a
    free copy of the tape-- just the right to make their own. Why not? If
    you can't provide greater value for them with a vastly superior product,
    why shove it down their throats? But that's just my opinion.

    Seriously, if you want to respect the law, you have to buy rights. If you
    don't, you shoot away and take your chances. If you don't want to take
    chances, get some generic music from one of those websites that create
    that sort of thing ( along with black velvet paintings of Elvis and
    macaroni and cheese receipes) and dub that music onto your video. Not
    very satisfactory, is it? Next time you vote, ask your congressman where
    he stands on copyright issues. Be informed. Get involved. Don't let
    Mickey Mouse write the law after he gives a big fat re-election campaign
    check to your congressman.
     
    Bill Van Dyk, Jan 30, 2004
    #2
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  3. I do the same, and without giving you specific legal advice, yes you would
    be liable for a number of things. Ask a lawyer if you want the specific
    details. The practical side is, who of the parents would turn you in? The
    risk is, at $10K a pop you are a a nice target. Copyright holders get real
    angry when folks earn $10K a pop and don't pay their license fees. You just
    don't know who the proud parents will show the DVD to.
    If you think you can't get caught, here is a re-post from Jim in Mesa,

    10-26-00

    " As a Former Emmy Winning TV News VIdeojournalist for 20+ years I had the

    luxury of working for a TV Station that shelled out in the neighborhood of
    20 K per

    year to be able to use music..but in particular we tried to use the music

    from our extensive canned library. It was a real pain because once a year we
    had

    to list every darn piece of music we ever used..! No kidding.


    Then when I went freelance I met a wedding photographer who did a promo

    video to get more business..he distributed it all over the place..it so
    happend it


    ended up in the hands of a woman who's fiance was a union member and Sound


    Recording tech..he turned in the VHS tape..my friend got a very nasty


    letter..in essence he had to throw out all his promo tapes and try to call

    back in all he had sent out. He just barely avioded getting sued like big
    time."


    --
    Best regards,
    Craig Scheiner
    Executive Producer
    CPS Associates
    Video Production and Publication
    www.cpsvideo.net
     
    Craig Scheiner, Jan 30, 2004
    #3
  4. Alex

    Bill Van Dyk Guest

    Thanks for posting that story Craig. I will not, in addition to my previous
    comments, a marked characteristic of legal actions by the RIAA-- they almost
    never (if ever!) go to court. They sick their lawyers on you and settle out of
    court. Almost always. If anyone can show me a link to documentary evidence
    that they have ever actually fought out the issue in court, I would be very,
    very interested.

    I'm not sure why they don't. I have two theories.

    1. They don't want the bad publicity. They are goliath. You are david.
    They are not likely to win a great deal of public support by dragging someone
    through the courts. An out-of-court settlement almost always includes
    "non-disclosure" terms, which, I believe, are intended to shut you up as quickly
    as possible. In other words, they are just bullying you with their big shot
    lawyers knowing that almost nobody wants to try to stand up to them.
    2. This is more contentious: I'm not sure that they would actually win, in an
    extended legal battle, including appeals. I would like to see someone mount a
    serious challenge to them in court. It is not beyond imagining that a court--
    especially a higher court-- might just rule that "everybody does it" and,
    therefore, picking on one user out a thousand (or hundred thousand, or million)
    is "arbitrary", and whatever.

    Since nobody seems to have ever fought it out, we may never know.
     
    Bill Van Dyk, Jan 30, 2004
    #4
  5. Alex

    PTRAVEL Guest

    Short answer:

    No. You can not include music protected by copyright in your video. There
    are other concerns as well. Unless all of the dancers have consented, you
    may be violating commercial appropriation of likeness laws, depending on the
    state you are in. Finally, some ballets, i.e. the dance steps themselves,
    are protected by copyright. Your video would infringe those copyrights.
     
    PTRAVEL, Jan 30, 2004
    #5
  6. Alex

    PTRAVEL Guest

    Though I'm sure this plays a part, I'd guess that the main reason is to
    avoid the costs of prosecution. A run-of-the-mill infringement action costs
    $150,000 or so, and can easily go much higher. You are correct, though.
    When dealing with petty infringers, my strategy will frequently consider the
    fact that smaller defendants would rather settle than litigate.

    "Everybody does it" has never been a judicially-cognizable defense for
    anything. Judges will not directly overrule the legislature in this
    respect, unless the statute is outright unconstitutional. However,
    particularly in the context of wedding videography, I believe that if, for
    example, a suit were brought in the 9th Circuit (includes California, very
    progressive appellate court and the leading circuit for intellectual
    property issues), incidental reproduction, e.g. dance music, and even
    copying of legitimately-purchased CDs, e.g. the bride's favorite song, may
    very likely be deemed fair use. The problem is this requires (1) a
    willingness on the part of the copyright owners to pursue a videographer,
    and (2) some poor sap videographer willing to take it to the mat, i.e. up to
    the appellate court.
    Well, yes and no. I can say that, as of today, as a matter of law, it is
    illegal. Defending on the grounds of fair use falls into the category of,
    "good faith argument for the extension of existing law." If I ever got sued
    for doing it, that's how I'd defend.
     
    PTRAVEL, Jan 30, 2004
    #6
  7. Alex

    Bill Van Dyk Guest

    Please, someone, somewhere, infringe, infringe, infringe!!!

    I can't wait to see the press conference at which a 7-year-old weepily tells the
    interviewer how she just wanted a copy of her dance to show her grandma, while
    the RIAA attorney explains how artists will starve to death if young children
    are allowed to steal music and dance steps. Just for good measure, the ballet
    teacher could explain that she would like to observe the law but she tried to
    figure out who and how to pay for copyrights and just found it all confusing and
    frustrating. Maybe it would make "Nightline".

    Please-- somebody turn down the out-of-court settlement and bring this to a
    head. It's time for an adjustment, a reversal of recent trends in copyright
    legislation.

    This is absurd, ridiculous, and morally wrong. There are and should be limits
     
    Bill Van Dyk, Jan 30, 2004
    #7
  8. Alex

    Bill Van Dyk Guest

    Thanks Craig for your informed comments.

    Just one tiny observation:
    Actually, I believe that a court case in the North East involving a BBS which
    allowed paying users to download copies of Microsoft Office, Word Perfect, and
    Lotus, among others, was dismissed by a judge who actually commented "everybody
    does it" (in reference to copying software). Most remarkably, the legal body
    representing software manufacturers declined to pursue an appeal on the advice
    of their lawyers who thought they would lose it, and establish a higher
    precedent that would be more damaging.

    But, yes, that was probably a bit of an oddity, but I've always remembered that
    comment because it showed so damn much common sense.
     
    Bill Van Dyk, Jan 30, 2004
    #8
  9. Go here.....
    www.benedict.com
     
    Bill Farnsworth, Jan 30, 2004
    #9
  10. Alex

    PTRAVEL Guest

    You'll have to provide more information. I know of no such case, and I've
    litigated against Microsoft often enough to know that they would never allow
    a decision to rest on such a clearly illegal ground. The judge may have
    made the comment as dicta, i.e. not a holding, not citable as law, but it
    definitely would not have been the basis for dismissing a law suit.

    Out of curiosity, why do you consider it common sense? One of the key
    purposes of law is to provide predictability for social interaction. If the
    law is simply disregarded by those tasked with applying it, then there is no
    predictability and no law -- anarchy is the result.
     
    PTRAVEL, Jan 30, 2004
    #10
  11. Alex

    PTRAVEL Guest

    It's the professional videographer who made the tape who will be sued, not
    the seven-year-old. There's no law against buying or owning an infringing
    copy, except perhaps under some very weird contributory infringement theory.

    The problem with the RIAA is not that they've got the law wrong -- they
    don't -- but that they're trying to use the law to protect an obsolete
    business model, sort of like requiring all automobiles to be sold with buggy
    whips.
    I don't know about ballet teachers, but I know of at least one high school
    (in New Jersey, I think) that was sued, successfully, by Andrew Lloyd Webber
    for staging a production of Jesus Christ Superstar. Believe me, people
    involved in theater and dance are very, very well aware of copyright
    constraints on public performance and I say this, not as a lawyer, but as
    someone with an MFA and PhD (ABD) in theater, and as a former actor and
    acting teacher.

    "I couldn't find the rights," or "I couldn't get the rights" is not a
    defense to copyright infringement, nor should it be. Think about it for a
    moment. Suppose, early in your career, you produce a video to be shown at a
    party attended by your friends and acquaintances. Because the video is just
    for laughs, and you're new at the video biz, it's a pretty sloppy piece of
    work and not at all representative of the quality you're capable of
    producing, and actually do produce now. Would you be happy if a film
    school somewhere gets their hands on a copy and includes it in a "Crappy
    Video Festival" which is open to the public? Because you own the copyright,
    you have the absolute right to say, "no copies, no distribution, no public
    performance." It's that absolute right of control (excepting fair uses, of
    course) that is the reason there has never been a movie or stage adaptation
    of Catcher in the Rye -- Salinger didn't want one, and his estate follows
    his wishes.
    That would be bad advice to anyone on the receiving end of an RIAA lawsuit.
    It would be damn interesting, though, if a wedding videographer chose to
    defend an action based on putting the bride's favorite song on a wedding
    video. I might even ask my firm if they'd let me handle the defense on a
    pro bono basis. There's a very strong argument for fair use there.
    Assuming the ballet teacher has rights to publicly perform the music (and
    he/she might -- it might come under a BMI/ASCAP agreement that was
    negotiated by the hall), there may be a fair use argument there as well.
    Unfortunately, there is no fair use argument for the teenager who downloads
    commercial music -- they'll go down, and go down hard.
    As a matter of law, the public _does_ have access to fair and reasonable use
    of copyright-protected material. The question is not whether they do, but
    what are the limits of that access. Blame a Congress which caters to
    special interests for the state of the current laws.
     
    PTRAVEL, Jan 30, 2004
    #11
  12. Alex

    someone Guest

    I've done some camera work for a couple of companies that offer recital
    tapes and DVDs. From what I can see, they don't worry about it.
     
    someone, Jan 30, 2004
    #12
  13. Alex

    PTRAVEL Guest

    FWIW, I took a look at the Fair Use article at that site. It's wrong in
    some respects, and deficient in others. I wouldn't rely on it.
     
    PTRAVEL, Jan 30, 2004
    #13
  14. Alex

    DK Guest

    Please-- somebody turn down the out-of-court settlement and bring this
    to
    Do you think they would allow you to?

    I'll make a note...!
     
    DK, Jan 30, 2004
    #14
  15. Alex

    PTRAVEL Guest

    It's always possible. My firm is quite generous about its allocation of pro
    bono time.

    I hope you don't get sued, but if you do . . . let me know. ;)
     
    PTRAVEL, Jan 30, 2004
    #15
  16. May......be Paul.
    I don't know.
    But it does give food for thought to those that think all is free for
    the taking.
    Then again........ them's that think that way, don't give a rip about much
    .......until it's too late. And even then....... some of 'em STILL won't get
    it.

    Bill F.
     
    Bill Farnsworth, Jan 31, 2004
    #16
  17. Alex

    DK Guest

    They probably wouldn't bother harassing me, given that I'm one of those good
    old "judgment proof" types. But it would be an amusing fight - and I don't
    take well to being bullied.

    Given how rarely I do weddings anymore, probably not very likely, though...
     
    DK, Jan 31, 2004
    #17
  18. Alex

    Alex Guest

    Thanks for all the feedback. Bill your humor is great and PTRAVEL
    thanks for your thoughts as well. I have one more question.

    What if I hire an attorney to draft a release for me that I have the
    Ballet Owner sign before I produce the recital DVD. The waiver would
    state that she/he has filed or will file with BMI/ASCAP and RIAA for
    any of the protected music they wil use in the recital. The owner will
    also pay any fees that are associated with this and will hold me
    harmless in all respects. It will state that I am providing a
    documentary of a performance that is being sanctioned by the
    RIAA/BMI/ASCAP. I guess whether the Ballet owner really does file or
    pay is up to them, I would hope that they would, but does that get me
    off the hook?

    Will this be sufficiant or will that just protect the ballet owner and
    not the videographer who records the event? What about recording
    public events and then selling a tape of the public event as long as
    the event staff had cleared the rights for the public performance?

    All I want to do is obey the law and feed my family. This is not my
    only source of revenue but I thought it would come in handy to pay off
    some of my capital expenses this coming year. Thanks again for all you
    help.
     
    Alex, Jan 31, 2004
    #18
  19. Alex

    PTRAVEL Guest

    Nope. First of all, even if the ballet producer has public performance
    rights to the music, that doesn't extend to sync rights (putting the music
    on film or video).

    All it would do is give you a right to file a third-party complaint against
    the ballet producer for indemnification. If you lose to the copyright owner
    and win against the ballet producer, you'll get a judgment covering your
    fees and costs, as well as any liability to the copyright owner. Then
    you'll have to collect it.
    Since BMI/ASCAP only license public performance rights, it would protect the
    ballet producer (assuming the rights were actually obtained) but would have
    nothing to do with you.
    The event staff obtained only one set of rights: public performance. The
    right to make copies (which is what you do when you video tape) is a
    separate right and hasn't been licensed to them. They can't grant you
    rights that they don't have.
    You have a business decision to make. I can tell you what is the law
    (though I can't give you legal advice -- you're not my client and I'm not
    your lawyer. You'll have to retain your own counsel if you want legal
    advice). I can't tell you how to run your business, or what risk might be
    acceptable to you.
     
    PTRAVEL, Jan 31, 2004
    #19
  20. Alex

    manitou910 Guest

    Videographers and clients, both with limited budgets, can take some
    comfort in knowing that even the big guns are in major turmoil due to
    limited copyright privileges.

    This is why Universal announced some months ago there was no hope of a
    DVD release of "Miami Vice", because they hadn't obtained home video
    rights when they got music clearances for the mainly then-current pop
    music used for the show, and the cost of doing so now would be in the
    millions.

    There are even stranger scenarios: the DVDs of "The Beverly
    Hillbillies" omit the opening/closing song composed for the show and
    replace it with generic country stuff -- apparently Flatts & Scruggs'
    original contract was limited to TV broadcasting rights for the music
    (it's intact for currnet syndication showings).







    CPJ
     
    manitou910, Jan 31, 2004
    #20
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