copyright for theatre?

[pdrow]

I have been the photographer for the local children's theatre for the last 3 years. I was informed today that it is a copyright violation for me to take photos and sell them to the parents.

I know that I am not the only person doing this for income. How do you do it?

I am not getting rich off of the children's theatre, but I usually make several nice sales.

Any information would be appreciated.
pam

[Curtis N]

I was informed today that it is a copyright violation for me to take photos and sell them to the parents.Informed by whom?
I believe someone is misinformed, but keep in mind there are multiple issues to deal with here.

The first is copyright law. Generally this is the least of your worries. You aren't copying the play, or its music, script, or choreography. You aren't making it possible for someone else to perform a show without licensing the script. You are creating images of people. About all you can usually tell from an image is that it's people on a stage wearing certain costume and makeup. With the vast majority of theatre shots, it's impossible to tell what play was being performed.

Then there is contract law, where things get sticky. The scripts are licensed to production companies by licensing houses with a contract. The contract generally specifies limits on audio and video recording, but I don't believe still photographs are often mentioned. Check with the person in the production company who signs these contracts to make sure.

Often there is a contract between the production company and the venue. These often specify that the venue gets a cut of any revenue generated within their facility and this would include photo sales. Again, you'll need to check with those in the know to see what you can do.

I am not an expert in copyright law and I have never actually read a theatre licensing agreement. All I can tell you is that my wife and I work with several area theatre groups, taking pictures and selling them, and the issue of copyright has never been mentioned. My guess is that you're dealing with a misinformed person, or someone with ulterior motives.

I would like to know more about your situation. Are you working in cooperation with the production company? Who told you that you were violating copyright? Could it be just an excuse to get you out? Are there other possible motives?

[pdrow]

It started out that I took pics of my dd and her friends and no one else was able to get good shots, so I started selling them. I had permission from the production company and they own their own theatre.

I am not sure exactly- supposedly complaints that I can take photos during the show and parents can't. I don't use a flash and most parents do. It just says no flash photography during the show. They are not happy that they then have to buy the photos.

Maybe just small town politics. I wish they had told me before today as I had left the whole weekend free for them.

[pdrow]

I just got an email- it is not copyright violation - but their new policy that I can't sell the prints.

[Curtis N]

supposedly complaints that I can take photos during the show and parents can't. I don't use a flash and most parents do. It just says no flash photography during the show. They are not happy that they then have to buy the photos. Maybe just small town politics.Sophomoric jealousy, more than likely. It happens in towns of all sizes.I just got an email- it is not copyright violation - but their new policy that I can't sell the prints.You may need to approach this a little differently. If you offer a quality product that most of the parents want at a price they're willing to pay, then get the majority of the parents on your side, only then will you win this battle against a very few vocal whiners who are throwing their weight around.

Here's a few ideas:
1) Approach the theatre with an offer to give them a cut of sales. This sort of thing is fairly commonplace, and since most community theatres are strapped for cash, it might help. (Maybe just as a last resort if the other ideas below don't work.) At the very least, offer the theatre a free CD for their archives. Offering to buy an ad in the program probably wouldn't hurt, either.
2) Offer to shoot dress rehearsals, not performances. It could be that you and your big, noisy camera are annoying people in the audience. This could be a major underlying issue. At a rehearsal, you can move around for all the best angles and get much better shots.
3) Consider putting all the images on CD and selling the CDs. They're cheaper to make than prints, and I have found that this business model is well-received. I know a lot of photographers shudder at this thought, but the reality is that theatre photography is never truly profitable. All you can hope for is to recoop some of your costs.
4) Feel free to PM me if you have questions. My wife and I have been doing this for a few years now, and the parents love us. :)

Finally, I have decided that this thread needs a picture. ;) This girl's mother will probably kiss me when she sees this. And I could never get a shot like this during a performance.

[InspiredGraphix]

I shoot community theatre also. However, for time reasons (to get pics into programmes in time to be printed for opening night etc), i shoot the latest dress rehearsal possible. For this reason, I don't have trouble with parents, and while i never use flash, i don't think i would ever want to shoot during the show anyway (too restrictive).

My deal is:

I go and shoot the pics and they pay me to do it.
I upload to their costume shop's website (which i built for them) so that the world can see them and all that.
I burn X amount of CDs with final images that they can take to local shop and get prints from.
I charge the co. for the CDs that they then sell to whoever wants one to help cover the cost of paying me to do it all.

So in a way, i echo what Curtis is saying about the CD thing too. I just don't bother with prints, as it is too much hassle. Providing a benefit to the dance company (or whoever) is a great way to keep people on side.

I charge less than normal rates as they are not-for-profit (and the word-of-mouth work i have received from it has covered that anyway!) as all staff is volunteer etc., so it is a little more fair.

I echo Curtis' comments entirely.

And Curtis, i think you better pucker-up mate, that is a great shot! I had to run when this girl's parents saw this one...

[TimSchroepfer]

I see this is a slightly older post, but there is a piece of information that needs to be corrected for anyone else who may come to this post looking for information. First and foremost it is a violation of domestic (US) copyright to reproduce, transmit, store, archive etc the work of the lighting designer, scenic designer and costume designer. Technically they could seek legal action. Will they... probably not, but by taking and selling photos that contain their work you or any other photographer would be violating the designer's copyright.

[Curtis N]

I see this is a slightly older post, but there is a piece of information that needs to be corrected for anyone else who may come to this post looking for information. First and foremost it is a violation of domestic (US) copyright to reproduce, transmit, store, archive etc the work of the lighting designer, scenic designer and costume designer. Technically they could seek legal action. Will they... probably not, but by taking and selling photos that contain their work you or any other photographer would be violating the designer's copyright.Interesting. The broader question of whether or not it's legal to sell photographs of someone else's "art" is particularly sticky, and lawsuits in this arena have come down on both sides. There are provisions in copyright law for "fair use" and "derivative works".

Call me skeptical. Can you provide specific references in copyright law or related case law? I need to know the source of your information.

[deadpass]

Since it doesn't appear that the OP had a problem with actual copyright law but more butt hurt parents I would take and impliment all the great suggestions by Curtis and Shooter-boy. Shoot a dress rehersal or two and see if those parents still complain or not.

[TimSchroepfer]

Interesting. The broader question of whether or not it's legal to sell photographs of someone else's "art" is particularly sticky, and lawsuits in this arena have come down on both sides. There are provisions in copyright law for "fair use" and "derivative works".

Call me skeptical. Can you provide specific references in copyright law or related case law? I need to know the source of your information.

Let me first say I am not a lawyer. However I would challenge the blanket statement that the legality of taking pictures of an other's art and then selling it is "sticky." I am sure you don't feel it would be legal for me to take a picture of one of your photos and then sell it without your permission?! Maybe I could get away with it if I make a derivative work from it perhaps, but see the link below for more on the issue because derivative works are not cut and dry.

Fair Use

Fair use verbiage from Section 107 of the Copyright Lay, as it appears in Michael Donaldson’s book, "Clearance and Copyright" available at Amazon http://www.amazon.com/Clearance-Copyright-Everything-Independent-Filmmaker/dp/187950572X/ref=pd_bbs_sr_1/102-2371359-6344943?ie=UTF8&s=books&qid=1179113603&sr=8-1 (http://www.amazon.com/Clearance-Copyright-Everything-Independent-Filmmaker/dp/187950572X/ref=pd_bbs_sr_1/102-2371359-6344943?ie=UTF8&s=books&qid=1179113603&sr=8-1)

"The fair us of a copyrighted work... for purposes such as critism, comment, new reporting, teaching... scholarship, or research, is not an infringement of copy right law. In determining whether the use made of a work in any particular case is fair use, the factor to be considered... include:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2. the nature of the copyrighted work

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. the effect of the use upon the potential market for, or value of, the copyrighted work."

IMO if you take a picture of a kid/ actor in front of a set, under theatrical lighting and in costume and makeup and then sell that picture it would seem to me (I am not a lawyer and cannot give legal advice) that what makes that picture worth the 24.95 is the fact that the kid/ actor has the costume and makeup on and is standing in front of the set and under the lights. Someone could make the argument. Will they make the argument and sue... probably not, but you as an artist should be sensitive to the issue.

As for derivative works please see: http://www.artslaw.org/DERIV.HTM (http://www.artslaw.org/DERIV.HTM). Long story short this does not appear to be a derivative work though we probably could argue that point.

Hope this helps.

[Curtis N]

This was your original statement:it is a violation of domestic (US) copyright to reproduce, transmit, store, archive etc the work of the lighting designer, scenic designer and costume designer.What I need to know is whether or not a photograph of someone's work is necessarily the same as the work itself, in the eyes of the law. I'm not a lawyer either, but I highly doubt this is the case.

Copyright law is intended to protect the income of those who produce art by restricting the rights of others to copy that art. And it's easy enough with today's technology to copy printed text, sheet music, photographs and in some cases paintings. If you write a manuscript and someone else runs it through a Xerox machine, that would be a fairly blatant violation since the copy would be just as valuable as the original. Every word is still there.

Now take this to the next step, to something like a sculpture or theatrical scenery. A photograph of that is not a copy. It does not have the same value as the original. Beyond that would be lighting design.

Using your original blanket statement literally, it would be a copyright violation to photograph a meadow if there happened to be a sculpture on it. I think we're definitely in the realm of derivative works, and I would certainly not accept your original statement as a blanket prohibition of all theatre photography unless I could see some case law to offer more definitive guidance.

As a practical reality, some of the people who are most enthusiastic to buy my pictures are set designers, costume designers and lighting designers. They want pictures of their work, for both personal and professional reasons. They need pictures to promote themselves. They want pictures for their own archives and scrapbooks. There is one set designer who calls me every time he's doing a show because he loves the pictures that my wife and I make. If I wasn't there taking pictures, these people would have no visual record of those things they work so hard to create.

[elguapo]

I ran into this very question recently. I was at performance by a small community theater. The characters and play itself is owned and copyrighted by a well known company that does a lot of merchandising. The the only restrictions given prior to the play was the "No video" and "No FLASH photography."

No problem, I have the equipment to take photos in the dark and think it would be a great learning experience to do so. I meet the director afterwards and she, the parents, and everyone, is thrilled someone is photographing the play. The director asks if I will provide photos for the families. I agree to provie copies of a CD with 100+ 4"x6" images for $10 each. Each family can print all the photos they want and the theater can use the images on their website and promotional material.

I give the director a copy of the CD to approve and she is thrilled. I make some copies and take them up on closing night to give the families a chance to buy them from the director after the final performance.

As the director is selling the CDs like hotcakes, someone from the theater board (who is very nice about the situation) says that unfortunately, selling the CDs with photographs is a copyright violation of the contract from "Big Company," which she purchased and signed.

She said according to the contact, the photographs of the play can be used only for private use (not an issue), no one can be paid to take photographs, a photographer can't be hired, the only money that can change hands is for the cost of materials to produce the photographs (which is only the CD and the CD case according to her definition), etc... The cost of the CDs and cases would amount to like $25.

We brainstorm a bit and try to consider that even if we don't count the 10+ hours I put in, if the camera, the $2600 lenses, the computer, software, the CD burner, etc. can be considered "materials." Nope, not according to the board member. The director doesn't think selling the CDs would violate the contract because it's not for commerical use and only the families, cast, and crew would be getting copies. The board director says she thinks it would because *I* would be making a profit.

They offer to let me sell the CDs if I want to risk it, but they don't want to collect the money because they don't want "Big Company" coming after them.

I don't like doing anything that might be illegal. Not having read the contract myself, I have to rely on what the board member says. So rather than disappoint the kids, families, and director, I let the director have the copies of the CDs I made and tell them to consider it a gift. The director gives back the money already collected. I'm not mad or hurt. It was something nice for the kids who are doing volunteer work anyway.

While I believe the board member is sincere, I wonder if she misunderstood or misread the contact? It's strange that the theater is selling video copies of the play to the public. I don't know if they are making any money off of it, but *IF* they are, it must be possible to purchase video rights but not photography rights to a play? Maybe they are providing the videos for "cost of materials?"

[blackshadow]

elguapo I would continue selling the images as you are and wait until (if you ever do) receive a cease and desist notice from the board member or theatre.
From what I understand the director entered into a contractual arrangement, not you.

If I was in your shoes I'd sell the CD yourself, let the "Big Company" try to come after you all they want. If they send you anything in writing send them something short and polite back saying as you own all copyright to the images you are free to exploit the images as you see fit. If you were selling the photos for advertising/commercial use you would probably need a release from the performers but as you aren't doing that the "Big Company" doesn't have a leg to stand on from either a copyright or breach of contract.

[InspiredGraphix]

elguapo I would continue selling the images as you are and wait until (if you ever do) receive a cease and desist notice from the board member or theatre.
From what I understand the director entered into a contractual arrangement, not you.

If I was in your shoes I'd sell the CD yourself, let the "Big Company" try to come after you all they want. If they send you anything in writing send them something short and polite back saying as you own all copyright to the images you are free to exploit the images as you see fit. If you were selling the photos for advertising/commercial use you would probably need a release from the performers but as you aren't doing that the "Big Company" doesn't have a leg to stand on from either a copyright or breach of contract.

Exactly right, i 100% agree with this.

I use images like this for portfolio stuff, but not for stock photography or anything.

Rob

[elguapo]

elguapo I would continue selling the images as you are and wait until (if you ever do) receive a cease and desist notice from the board member or theatre.

They wouldn't send me one. They were willing to let me assume the legal risk and sell them myself. But since the board member told me her understanding of the contract is that my selling images from the play were illegal because the characters were copyrighted\trademarked.

I didn't want to take a chance of doing anything illegal even though her interpretation didn't sound right to me.

The more I think about it, the more I believe the board member was being overly cautious.

From what I understand the director entered into a contractual arrangement, not you..

Oh! Good point! I hadn't thought of that.

If I was in your shoes I'd sell the CD yourself, let the "Big Company" try to come after you all they want. If they send you anything in writing send them something short and polite back saying as you own all copyright to the images you are free to exploit the images as you see fit.

It may have been perfectly legal, but I let the kids have the CDs already. I didn't want to break the law. Plus I figure new opportunities might come up from the theater and families. I had an image with my contact information at the beginning of the CD.


If you were selling the photos for advertising/commercial use you would probably need a release from the performers but as you aren't doing that the "Big Company" doesn't have a leg to stand on from either a copyright or breach of contract.

I agree with the needing a release from the performers if I was selling them for commercial use. But let's say an actress was dressed as Wonder Woman. Wonder Woman is copyrighted\trademarked\whatever. My understanding is that I couldn't sell a picture of Wonder Woman for commerical use even if I had the actor's release. Wonder Woman is someone else's trademark. Is selling a picture of an actress dressed in a Wonder Woman costume to the family or cast commerical use?

The board member thought it was.

[Curtis N]

someone from the theater board (who is very nice about the situation) says that unfortunately, selling the CDs with photographs is a copyright violation of the contract from "Big Company," which she purchased and signed.Disclaimer: I am not a lawyer.

I believer the board member is confused about one thing: There is copyright law, and there is contract law. Two separate issues. The issue here is contract law, and it's important to note that the contract here is between the licensing house and the theatre organization, and you are not a party to it.

The theatre board is probably wise to try to separate themselves from this financially, if they feel there is a contract issue.

If you take pictures and sell CDs, and do not pay anything to the theatre organization, then they have not hired you and they are not profiting from the venture. If their contract specifies that they can allow people to take pictures then it would be difficult for them allow others to do so but not you.

Now here is the practical reality, at least in my experience. The licensing houses concern themselves with videotaping and audio recording, but I've never heard of them making a stink over still photos. I have taken pictures at many shows, for many groups, and performed in many shows where others were taking pictures and distributing them in some way (for monetary compensation). These shows have included some Disney productions (and Disney has a reputation for fiercely protecting their copyrights), as well as other very popular shows, licensed by the "big" licensing houses in New York.

In all my theatre involvement over many years, as a performer and photographer, I have never heard of any licensing house raising an issue over still photographs. You're not stealing their intellectual property or reproducing it in a way that might affect their income. Frankly, I think they have bigger things to worry about.

If the theatre board is willing to allow you to continue to take pictures and sell CDs independant of their organization, I don't believe there is any significant legal risk on your part.

[elguapo]

I don't know if their contract specifies whether or not a 3rd party can take photos. I do know that the MC specifically said "No FLASH photography" at the two performances I attended.

I think part of the problem stemmed from that the MC, director, and board member did not communicate about the photography policy before hand and the board member may have been playing it safe.

Thank you for the information. Without looking at the details of the contract, I think I would have been safe as long as I was the one collecting the money and distributing the CDs.

[Curtis N]

I do know that the MC specifically said "No FLASH photography" at the two performances I attended.Just as a point of information, this is a matter of policy from the theatre organization. Nothing to do with either copyright or contract. It's pretty standard, and it's good policy. Flashes going off during performances are terribly annoying to the rest of those who pay to see a show.

There are so many idiots out there that think they can light up a stage with their P&S from 50 feet away, such policies are required to prevent the inevitable distractions.

I generally support policies prohibiting photography of any kind during an indoor performance. People with cameras tend to be a nuisance to those around them. If mom wants a picture of little Johnny or Jane on the stage, she should take them at the dress rehearsal.

[InspiredGraphix]

I think that it is very easy to get caught up in all of this.

Could God sue you for taking pictures of the sun? Maybe.
Could a mother sue for taking pictures of her daughters recital? Maybe.
Could someone find an excuse to try and sue me cos my L was bigger than theirs? Likely.

Would i ever care enough about this to stop me from doing what i do? Definately not.

Until i have a problem, i won't care about it. I know things are probably a little easier here in Aus than in the states, but i doubt much.

I have nothing but a written quotation and verbal contract with the places that i shoot for, and a release is built into their memberships. I am starting to shoot concert stuff, so this is changing, but not for theatre.

I am insurred, so worst case scenario is i let the wanker lawyers battle it out in a battlefield that should exist anyways.

My old man has been a lawyer for 20yrs, and even he thinks it is all a bunch of crap.

Rob

[elguapo]

Just as a point of information, this is a matter of policy from the theatre organization. Nothing to do with either copyright or contract. It's pretty standard, and it's good policy. Flashes going off during performances are terribly annoying to the rest of those who pay to see a show.

There are so many idiots out there that think they can light up a stage with their P&S from 50 feet away, such policies are required to prevent the inevitable distractions.

I generally support policies prohibiting photography of any kind during an indoor performance. People with cameras tend to be a nuisance to those around them. If mom wants a picture of little Johnny or Jane on the stage, she should take them at the dress rehearsal.

I agree 100% about not using flashes during performances.

[springplum]

IFirst and foremost it is a violation of domestic (US) copyright to reproduce, transmit, store, archive etc the work of the lighting designer, scenic designer and costume designer. Technically they could seek legal action.

Actually, they most likely couldn't seek legal action for photographs or even videos of the work. When the designers sign their contract to work for the production company, there should be a clause stating that their work for the company is owned by the production company. So if a photographer has permission from the production company to take pictures, then the designers can't sue.

An example of this: A man works for "Medical Drug Co." He invents the cure for cancer at the company's lab on company time. Can he patent this and make millions? No. Because the "Medical Drug Co." owns the rights. They make the millions. The "Medical Drug Co." should still credit him with the discovery just like the theatre production company will still credit the designers.

[elguapo]

The director doesn't think selling the CDs would violate the contract because it's not for commerical use and only the families, cast, and crew would be getting copies. The board director says she thinks it would because *I* would be making a profit.

I did some research and the board member's understanding of commercial use was off.

From what I read, making a profit from the sale of a photo does not mean it falls into commercial use. Commercial use means that the person is endorsing a product or idea--hair cream, denture adhesive, the prevention of AIDS, Scientology, etc..

Even then, again from what I read, the publisher and not the photographer is responsible for making sure the photo does not violate any copyright laws, the properly releases were signed, etc. As long as the photographer correctly informs the publisher that he does\does not have a model release, the publisher assumes the liability in publishing the photo.

From what I can tell, as long as the theater didn't have a clause in the contract that prohibits all still photography of the actors in costumes, then they and I would be in the clear if I sold the photos and collected the money.

[c71clark]

So I guess that this would mean that I can't take any pictures of any famous buildings in New York city, since they were created by an Architect, and are, in a way, works of art.

Too silly.

[René Damkot]

You can, for private use, but if you'ld use the for an advertising campaign, you need permission. (At least I know that's how it works with the Rotterdam Erasmus Brug (http://www.architectenweb.nl/en/projects/project.asp?PID=428&iMID=2545).)
Not silly IMO.

[elguapo]

My understanding is that the court case "Gentile vs Rock'n'Roll Hall of Fame," established that owners of a building can only trademark one or two angles of the building. The rest are free game and a photographer may sell the images he takes of the building.

[revaaron]

some times you get crap from people for lighting guild, etc...

[revaaron]

there is a big difference between public and private domain.

You are more than welcome to shoot this show from outside the venue on public lands, lets just see how well the pictures turn out. If a venue says "no pictures" then it's no pictures. EOS. They can't limit your activities after the fact unless you sign something.
But they can limit future access.

[elguapo]

In my particular case, I was taking photographs with the director's permission, and the production was held in a public (IE taxpayer paid) theater. Even so, I would not insist on photographing the production if photography was not allowed.

The theater group liked my photos and want me to photograph future productions. They were very apologetic about the copyright mixup with this production. I believe it was due to the board member's misunderstanding of the terms of their contract with "Big Company." I think I could have convinced her of that if I had been armed with the infomation provided in this thread beforehand.