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Filming School Concerts and Posting Online - Fair Use?

My private high school's administration would like to film our choral concerts and post them on the school's website for parents who cannot attend.  I'm under the impressions that, since the music we perform is copyrighted, posting a video of our concert online, even in a password protected area of the school's site, would not fall under Fair Use and is therefore not legal.  I think we're allowed to make a single archival recording but I've heard you cannot duplicate that without a synchronization license for each song.  I know audio is different and duplication can be permitted relatively simply and cheaply through, but what's the story on video?  Anybody have any good resources?
Also, I'm a little uncomfortable with my own intellectual property (my direction) being filmed without my permission.  I'm proud of the work I do, but I don't know that I want it finding its way to YouTube and being picked apart for eternity.  Do any of you have advice about how to navigate this issue?
Thanks for your help,
David S.
Replies (9): Threaded | Chronological
on February 27, 2012 8:44pm
David:  What INTERESTING questions!!!  The first is easy.  Yes, you would be subject to synchronization fees, and yes, I believe it would be considered distribution, and despite everyone having a video camera in their pockets these days there ARE copyright implications.  So ask your administration (a) how much they're willing to spend to get the proper legal permissions, or (b) how far they're willing to go in breaking copyright law!
As to your work being considered "intellectual property," that would probably be a little difficult to establish!  But as far as copyright law is concerned it would have to exist "in fixed form," which seems a little unlikely.  Some things simply cannot be copyrighted, including titles and chord progressions, and I suspect that interpretations would be included.  So I wouldn't base your argument on the concept of "intellectual property," although privacy might come into it.  (As if any of us who perform in public can actually claim a right to privacy, but you might want to try.  Of course they might decide to hire someone who is less concerned about it!)  I guess maybe the question is whether you stand behind your work and can take pride in it.
All the best,
on February 27, 2012 11:45pm
I seem to remember this issue being discussed here before, and the end being that even though it's not entirely legal to post copyrighted material on Youtube but that hardly any copyright holders really mind that everyone does it anyway. Most of them, even the big corporations, don't mind the publicity at all.
If you're not comfortable with it, that's another kettle of fish altogether. You know it's possible to not allow comments on Youtube so it doesn't need to be picked apart publicly anyway. But I think they definitely need your permission to film.
on February 28, 2012 6:12am
I think this is a little bit misleading.  Viacom objected to their material being posted on YouTube to the tune of a 1 billion dollar lawsuit.  Many copyright holders do object that their material is posted without their permission especially when their music is used to accompany images that they find objectionable.  Problem is, the way it is now, it has become the job of copyright holders to police their copyrights and submit takedown notices to sites llke YouTube.  This is a huge time commitment for popular works.
on February 28, 2012 7:03am
The first part, I completely agree with John.
The second part. As John suggested, "your direction," itself, would not be considered as intellectual property. However, the sound recording and video image/recording which you participated to create are copyrightable. Therefore, as one of the creator of the work, you might be able to deny specific use.
Now, if I were an administrator, I would go with "work-for-hire" direction. You are an employee who participated in creating a certain kind of work for the employer "within scope of your employment." In that case, the employer is the author (and copyright holder) of the work. You, as an employee, don't have any right on the intellectual property. You may object the use, but I assume that your claim is acceptable only if there is a serious breach of your privacy or personal information.
But this brings another aspect of copyright of the audio/video recording at school concert; the right of the performers (students). The administrator cannot use "work-for-hire" for the students. Therefore, if I were an administrator, I would ask school attorney to create an permission-of-release document for students to sign to be safe.
on February 29, 2012 7:52pm
>>but from time to time I do some arrangments for the choir (with permission) and those would be covered.
...mmm... Unless your arrangement is based on the PD materials, you are neither the author nor the copyright holder. Yes, you wrote the arrangements, but it is not your intellectual property unless the contract states so; you have a permission to use property of someone else for arrangements.
Therefore, in this case, you might not be able to argue for denial of the usage in the video, since the user would go to the original author/copyright holder to get the permission.
In addition, if I were an administrator who foresee the problem, again, I go with work-for-hire direction which makes almost everything you do for concert under the name of creating of the audiovisual work, employer's. This will include your composition/arrangments. I don't think you want that...
on March 10, 2012 12:48am
The school or district should already have a media release form for students to sign.  My district has every family choose whether or not the student will be publically displayed in photo or video.  Retired Supreme Court Justice Sandra Day O'Connor came to our school and some students in my choir could not be in the photo with her because the photo "could have been" in th press. 
Even though it could be difficult or impossible to distinguish individual faces or identities in the video, the protection of the children being displayed on the internet is the primary issue due to so many unsavory characters in our world.  The schools don't want to be sued, so the forms should be in place.  I would not move forward without some liability protection in place.
Musical copyright is another issue that I will leave for those more qualified.  I know teachers who record their choirs and produce CDs and SELL them as a fundraiser!  I have tried to warn them and their adminstrations and district officials, but it seems nobody really wants to deal with this, so I keep my distance.  Dance teachers who sell DVDs of their dance concerts with coprrighted music . . . I am sure that this MUST be a widespread practice, but that may be for another forum.
on March 10, 2012 11:00am
Paul:  Interesting take on the question.  I have NEVER been in a situation in which either elementary, high school, college, or church members of an ensemble have had to provide a media release form.  I don't doubt that they exist, but what can you then do, refuse to allow them to participate in concerts? The Indiana University School of Music produced a video for the 1976 Bicentennial Celebration, based on the J.C. Penney sets of music that were distributed nationwide, that two of my ensembles were involved in, with Benny Goodman hosting it, and I don't remember ANY request for media releases.  That sort of misses the whole point of preparing concerts, doesn't it?  The assumption has ALWAYS been that taking part in performances--or perhaps better, being a member of any ensemble--provides an a priori assumption that the individual will be seen as a member of that ensemble in any public performance.
As to the copyright questions, there's no real question at all.  Fair Use permits the making and keeping of a SINGLE archival copy of a performance.  ANY other use is outside Fair Use and requires both permission and the payment of the legally-required royalties.  End of discussion.
Is ignoring the law a widespread practice?  OF COURSE!  No one can claim otherwise.  And where we need to start cracking down is the ACDA- and MENC-sanctioned and -run All State, District, Regional, and County Choir Festivals (and City, if any such exist) which hire outsiders to record AND SELL copies of the performances under the assumption that the recording outfits take care of all the copyright details and payments, even though it's pretty obvious that they could not possibly do so!  (Or am I wrong, and do they actually cover all the paperwork and payments that are legally due for copyrighted works?)
But to the best of my knowledge, "everybody does it" has never stood up in court as an excuse for breaking the law, whether it's speeding tickets or pirated recordings!
All the best,
on March 10, 2012 6:48pm
Perhaps California is a bit of a protective state, or maybe it's just my district, but we do require a media release statement for anyone in our elementary school performance groups. We had to get one in order to put the kids photos on an Internet website, but it also includes the video privilege. It has caused at least one child's parents to pull a child out of a performance group, because we refuse to try to photograph or video around a given child.
When my groups have performed on a local television station, the station has required a Media Release to be signed, separate from the one our district requires.  We didn't have to worry about getting permission to use the music, because the station pays the fees to the appropriate agencies.
on March 15, 2012 11:44am
John, our school district requires the parents of ALL students to sign a waiver regarding almost any type of media exposure.  If the news comes to school, certain students are not allowed to be seen or spoken to by them . . . newspaper, TV . . . doesn't matter.  If a picture of my choir goes in the paper, every student must have the waiver signed or they cannot be in the picture. 
On the other hand, I recently accompanied a high school choir to the Lincoln Center for a concert under the direction of Dr. Russell Robinson and we made sure that EVERY student had a form signed or they could not go on the trip.  I believe that was a stipulation from Lincoln Center. We could not guarantee complete media anonymity and protection for every student at every second when crossing the country and performing in New York City at the Lincoln Center, who has their own business of taking pictures and making recordings for purchase -- which you also mentioned.  If we wanted to purchase a recording of our concert, we had to pay in excess of $900, which I would imagine covered the legal fees so lawfully deliver our recording to us.  Pictures are $5 for one wallet sized photo in the performance space. 
And, ALMOST everyone does "it" John. I can't -- because I understand that it is not legal and my conscience and ethics guide me differently.  In a school setting, it is hard to explain to the students and parents, but I serve as an example to my students as well as my own kids at home.  {sigh}  THEY might record, but I won't.
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