You are so excited. Your daughter was just cast as the lead in her school drama club’s musical. Since you are a successful videographer and photographer, her drama instructor asks you if you would mind taping the show so that she can study the tapes with her students after the fact and provide some technical, constructive criticism. You are honored and excited, as you see this is a great opportunity to both capture this amazing moment in your daughter’s life, but also as a way to market your photography/videography business and can sell the recording and donate all proceeds to the drama department.
While all of this seems perfectly legitimate and you have probably seen this happen many time before, this scenario actually brings about a quite a few ethical and legal issues.
Many popular musicals and productions that are commonly performed by students were once internationally known and adored plays or musicals. Someone, somewhere along the way owns the rights to the entire script and/or music for the schools adaptation of the show. This means that its use is governed by copyright laws.
So how is it that the school gets to put on the play if it is protected?
In these situations, generally the school itself must purchase the license to put on the show. Even if the license costs a small amount, this is how the school obtains “consent” from the copyright holder. Without this, the school itself would be in violation of copyright laws.
In addition to purchasing a license, the licensor also may require that the school sign a contract related to the limited license to put on its production. Oftentimes, contracts include limitations on whether the production can be video recorded for any purpose and, in many instances, outright ban videotaping and reproducing the performance. Doing so without the express permission of the licensor is both a breach of contract and potentially a copyright violation because it exceeds the scope of the limited license that was provided to the school. If the school is prohibited from allowing recording, then the school would likely be required to include an express “no videotaping” announcement in the program materials.
So what if I tape the show in these hypothetical circumstances?
In this context, the drama teacher wanted the performance videotaped for “educational” and “instructional” purposes so that she could de-brief with the actors. You wanted to reproduce the video for marketing and charitable purposes. Would the drama teacher be in the clear here if you videotaped the production? Would you be in trouble for selling the recordings even if you plan to donate the proceeds in lieu of earning a profit?
In the end, I am going to give the most dreaded “lawyer” answer ever…It depends. In the context of the teacher, she is an agent of the school and is bound by the contract that the school signed. If the contract provided that no video recording is allowed for any purpose, then any video recording for any purpose could possibly be challenged. If the contract allowed for video recording for educational purposes, then it is possible that a video used by the school for this purpose is alright. There could also be some “fair use” arguments that could come into play when it is used in such an educational purpose as well (see other posts related to “fair use” and how it works).
If you made an additional recording for just your family/daughter, then it also may be OK under the fair use doctrine, but the school could still be in violation of its contract depending on what they agreed to. If you are selling the videos, then the waters get even murkier.
While all of this seems harsh, think about the world we live in today. You can find music, copies of TV shows and movies in a number of places on the internet, some of which may not be actual license holders of the work. In this day and age, artists and copyright holders have no option but to aggressively protect their work, or risk either the work losing value or the right to protect the work down the line. While the events in this scenario are generally innocent, you could find yourself in an expensive fight in which you have no desire to be involved.
What role does parental consent play in all of this?
Another important issue to think about in all of this is the need for parental consent when videotaping school-age children/minors. When my daughter started at her current Pre-K, I remember one of the documents included in the huge packet of paperwork I needed to sign (you would think I was sending her off to college already) was a photo release form that gives the Pre-K the rights to photograph my daughter while she is at the school or participating in school-sponsored activities and use them for marketing or promotional purposes.
We are in a world where digital images and videos are even more accessible by wrongdoers than they have ever been. Taking and using of photographs and videos requires consent in many cases. At the time of videotaping, you may have no idea whether another student who is in the play has a parent that has refused consent for his/her child to be videotaped or photographed by the school. Therefore, if you are ever asked to videotape or photograph a school or organized league event, you may choose to determine whether there are any parental consent barriers to handling your work, or you may choose to have parents sign your own release form.
While I would not say that you can never photograph or record these events, there are definitely a lot of considerations to make at the outset to ensure you are following all of the rules.