Performer alert.... copyright info

topic posted Mon, January 28, 2008 - 9:14 AM by  Kate
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I have been meeting with the Maryland Lawyers for the Arts about Copyright Info for Performers and thought I would share a bit of what I have been finding out. Some of you may care and others may not. If you don't care please refrain from negativity towards the issue for the sake of those who do care. I know that I have been trying to find out much of this information for at least 5 years. There are many resources for visual and musical artists, but it is much more difficult to find out lots of this stuff if you are a performer. I have always passed by their free artists copyright workshops in the past knowing that I would only be sidetracking the topics from the painters and photographers that would normally attend. I was soooo right! The first workshop attended by those and most of their questions had to do with finding out if they could sell images that they were taking of others art work. It was interesting having the exact opposite issues!! ; )

The second of their workshops that I attended was primarily for venues who were being targeted for not paying the licensing fees that were needed in order to play or perform to and with copyrighted music. Once again I seemed to be the rare beast who actually cared and fought for their rights to be payed! One of those venues that was being targeted was also a venue that I was performing in 3 days after the workshop. (It was not a fire performance, but it was character movement improv based doing object manipulation and full body puppet stuff to music).

I am NOT a legal person so please also find out you're legal rights and responsibilities in you're location.

A Copyright lasts for lifetime plus 70 years. In some cases there is a copyright status beyond this. It is important to find this out.

Venues are responsible for copyright licensing fees, not you. Find out, when dealing with contract issues, if they have paid the fees or if you need to find copyright free musical material. Remember that we, as artists, should advocate for all artists to be able to make a living off of what we do. Musicians are much more lucky in that there are organizations which advocate for their legal and financial rights!!

If you have created a performance set to music and you have created a video, cd or dvd then there is a separate licensing fee that you must pay.

There is a common misconception that if you do a public performance that you do not own the copyright. Many photographers believe that just because you are performing means that they have the freedom to take and own the copyright of images they take of you're performance. This is NOT true. I know that this is a touchy subject and there are lots of web based sites which tell photographers and videographers that, BUT Performance work falls under the copyright of a intellectual copyright of mime category. However what you need to know is that in order to prove that the performance was yours the performance must be "fixed". Fixing a performance means that you need to record every performance.

There is more, but my net time is incredibly limited. I will attempt to get more out soon.

If you're in the Baltimore area I am attempting to work with the MLA (Maryland Lawyers for the Arts) to get a workshop which specifically deals with performer copyright issues. I will keep you all posted.

I know that some of you don't care, but please remember that you would never expect a dentist to work for free. We all have "reality camp" expenses that don't exist at Burning Man and art IS valuable and integral to humanity!
; )

burn brightly
burn responsibly
just don't burn each other!!
Kate (aka Sensoriel)
posted by:
Kate
Maryland
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  • Re: Performer alert.... copyright info

    Tue, January 29, 2008 - 8:56 AM
    Clarification

    There are people I've performed with who we've talked about ethical issues having to do with public performances using someone else's music or video, etc. This topic is based off of those discussions.

    Legal copyright issues are important for all artists to understand.
    For me there are many reasons, but I've been a lifelong artist and performer. I know how tough it is to make a living off of it and this is based off of many conversations I've had with fellow performers and artists over the years. It is also based off of learning how important this stuff was during my education at the Art Institute of Chicago.

    I've been a lifelong advocate for eradicating the starving artist myth so therefore I care about musicians and artists being able to make a living-- myself included as well as all my friends and fellow artists of all types and mediums. It's a HUGE factor in all that I did for PDF, btw. Its a large reason I stepped up to head the Arts Grants stuff, its a large reason why I was invited to be on the BOD of the Creativity Collective (which was to be the first national non-profit to support arts, artists and regionals).... its also why I always chose to build those effigies as much on site as possible... to show others the accessibility to be able to create art. There was always a lot of bitching that I didn't do more of the stuff before PDF, but building on-site was a part of my art and my artistic identity/dialogue and it was a way to communicate without words many of my core beliefs and philosophies.

    The copyright topic has to do with those who are interested in finding out what you're legal rights are as far as a being a performer and what other copyright issues come up. I also know that many of you don't care and for many of you its a hobby. I was a performer and a visual artist before I ever was at Burning Man and for me my art isn't a hobby. I care as much about the musicians getting credit or paid as I do.... and I do believe in being able to make a living off of my art. I'm not a hypocrite and anyone who has ever known me knows that.

    I know that my sculptures, for instance, are constantly photographed and the photographers rarely give me credit... the PDF ticket from May 2005, I think it was, had a picture of one of my sculptures. The credit for the image said "art by [photographer's name]. That's a small for instance. I've been approached by people who want to use images of my stuff in advertising, etc. At least *they* asked. Many advertizers don't ask and they troll the web looking for things they can use. I happen to care if someone takes one of my images of me or my art and its used to advocate the Republican Party or in a pro-life setting. I care if its used in a scheme. Many of the photographers who took images of my effigies at PDF have placed high resolution images on the web, haven't given me credit and some are being sold. Anyone can take those images and use them in whatever they want. I care if its the background in a porno and I WILL take legal action if teh image is used in something unethical. It is my right as an artist to know where my stuff is being used.

    The other side of this is that Artists and performers have an important section of their portfolio/resume where we state where our art is used and who it is in the collection of and/or where and for who we perform for. This is very important information for clients. It is my right to know if an image of me is in a museum... It should go in my bio. I should be able to say who can and who can't use my image. If someone is going to sell my image to an ad agency I am entitled to know and if it makes money I am entitled to take my cut. It is also my right to say that my image or an image of my work should never be sold. It is also my right to know if and when it does. I have the right to say NO. ; )

    The inverse is also true. It is a musician's right to ask the same of me. If they don't want me to use their music then it is their right to ask that of me. If they want money for it they should get it.... or I need to find different music if I can't afford it.

    Artists shouldn't die from exposure is all I'm saying.
    In this day and age of Youtube and cell phones with video cameras and in this day when it gets harder and harder to make a living at what you love or what you're good at in the creative fields these are important issues. Its also important to understand that artists of all types should be supported and valued. I am a professional.

    There is also a lot of stuff coming up having to do with some venues having to deal with being fined for not having the musical license to play copyrighted information. This affects me as a performer.

    There is also a "hot topic" going around in the Sideshow Industry because of the large influx of people who are stealing acts. Performers work for years to develop acts and someone sees a show and goes "wow, that's cool" and they exactly mimic the act instead of being inspired by it and developing their own act, i.e. dialogue, spin, etc. This has been an issue since the dawn of performance, but the amount has been increasing from what I'm hearing.

    What a lot of people new to performing don't get is that by mimicking someone's act you are in fact stealing their market and therefore stealing their ability to make a living. A lot of performers who are beginning or who aren't trying to make a living off of performing don't get the side effects of their actions... or they don't care.... they don't want to see the impact. This kind of topic is to help them as well.

    Back to performing to music for dance based performers such as us:
    Legally ASCAP, BMI and the other musicical licensing (short term memory blank) place do care. Musician's are lucky in that they have organizations and foundations like that. Performers should be so lucky!! If you're not performing to live music it is important to know if the music you are performing to is copyrighted. If you have permission from a friend to use their music then you don't have to worry about it. Sometimes if the friend is mixing music there are still copyright issues you will have to deal with. You have a legal obligation if you perform professionally. Many performers aren't aware of some of these legal obligations and I'm sure many of us on here have never even thought that there might be legal or copyright issues to deal with. Being an artist is hard work and there's lots of stuff one needs to know from financial to contractural, etc.

    The workshops with Maryland Lawyers for the Arts that I'm trying to make happen here will deal with copyright, legal and contractural issues for performing artists and time based media (performing sculptures).

    I *love* collaborating with other artists and I *love* the collaborative process with improving to live music. I can't always do that, though. Some venues don't have the budgets to be able to do this and sometimes the space doesn't allow. I also love having content instead of just being "eye-candy" so I will often pull together pop-culture based music because of the different themes or messages it conveys and combine it with other stuff so that I can pull together different textures and have different emotions and genres to play with physically. I am character improv based with a HUGE background in pantomime.

    I've also always cared about being ethical so this is important stuff, IMHO.
    I've always been a fan of symbiotic relationships over predatory ones. That's why I care.

    I also care because I know art to be valuable and we live in a culture which doesn't value it as much.
    I did get my B.F.A. from the School of the Art Institute of Chicago and I've got the student loans to prove it. I also have a mortgage and living expenses like everyone else. With the amount of time and money I've invested in being an artist I can't afford to die from exposure. It is not right to ask that of anyone. A prototype in the business world costs far more than a reproduction. Its unfair that our society still thinks that they should get good art for slave-labor made in china prices and people need to learn that they should budget for performers and for musicians and artists. Its that simple.

    I believe it is my right to chose and I believe in others right to chose.
    I have my things that are an investment and that I am supporting, but I can't afford for my life

    Sorry about the confusion
    I will try to get the rest of my notes on here soon.
    Kate
    aka Sensoriel
    • Re: Performer alert.... copyright info

      Tue, January 29, 2008 - 10:39 AM
      Hypothetically if someone took my music and used it as a theme song to back a famous politician I would want to sue as well....unless they they paid me a fortune then I would have to think about it. On the internet the more they share it in my case the better...being that I'm a nobody in the music world and need exposure...so the internet is a blessing for us types. You problem is a s much a cultural one ( not feeling the need to site the artist in the beautiful photo). But everyone has a camera and everyone wants to share their special photos! How can you get credit if they don't feel the need to go out of the way and find the name of the artist they just photographed. How about but your name or initials on it or use a symbol that identifys you that are large enough to be seen in the photo. Maybe learn to incorporate it in all your art? You can use these photographers to your advantage. Imagine all the free exposure you can get if you have a stamp on all your art. Hell put your web site on a board under your art. If your really trying to get your pay and rightful due for you great art....then use them. If you don't like that idea well go on a suing campaign. You will end up spending more time in court than on creating and distributing your art.
  • Re: Performer alert.... copyright info

    Sat, February 2, 2008 - 2:56 PM
    Kate with all respects:

    what your are talking about is privacy rights, in a private event. News photographers are allowed to photograph artists for news worthy events.

    www.asmp.org/commerce/legal/releases/

    en.wikipedia.org/wiki/Personality_rights

    www.rcfp.org/photoguide/intro.html

    www.rcfp.org/photoguide/ninekeys.html

    copyright primer:

    fairuse.stanford.edu/

    fairuse.stanford.edu/Copyrig...dex.html

    Photgraphers do have rights to photograph performers in a public setting. If they use it for commercial purposes the performer has recourse.

    exposurecompensation.wordpress.com/2007/10/31/photography-and-law-legal-rights-and-limitations-of-photographers/
    • Re: Performer alert.... copyright info

      Sat, February 2, 2008 - 3:07 PM
      Further clarification:

      In a private setting, for example in a performance studio, a performer may be interested in negotiating with a photographer/videographer for fair compensation, usually by how far and wide their likeness of image will be spread/broadcast. By all means the performers/artist do have control of where their likeness of being will ultimately windup. Access/exclusivity can be mutually beneficial to everyone involved, the artist/subject/property involved with the shoot must understand the history/equipment publication they are working from.

      Please read this:

      www.asmp.org/commerce/le...ng/index.php
    • Re: Performer alert.... copyright info

      Tue, February 12, 2008 - 3:45 PM
      I think what Kate is saying is that if you are a performer and you have a 'fixed' performance (meaning its the same performance you always put on, scripted or whatever), a photographer may not sell images of that performance. I think there may be a part of this which states that the performer must specify that no photos may be taken during the performance, but not sure on this. I know I have run into issues regarding these things where a photog was selling images of me and my performance... My performance was not fixed though and I did not state that photos couldn't be taken... Thus, not much I could do about it.
      • Re: Performer alert.... copyright info

        Wed, February 13, 2008 - 5:27 PM
        Ok If you have a 'fixed' performance...then how do you go about protecting that performance in some form of copyright manner?
        • Re: Performer alert.... copyright info

          Wed, February 13, 2008 - 9:22 PM
          www.asmp.org/commerce/legal/releases/

          This is a clearer explanation:

          The Right of Privacy

          Although the laws of the 50 states vary, all states recognize that individuals have a right to be let alone in their daily lives and that harm (in the form of embarrassment, scorn or loss of status) can result if that right is violated.

          However, the right of privacy is not absolute. In particular, the courts have long held that news reporting and social, political and economic commentary — the things the First Amendment was designed to protect — are more valuable to society than an individual’s right to be let alone. Therefore, images that are part of the public colloquy about events have usually been exempt from privacy lawsuits. In contrast, the courts have generally held that making money is distinctly less valuable to society than the right to be let alone.

          Thus, privacy issues typically arise when an image is used for purposes of trade or advertising. That is, it’s not the picture, but how it is used that determines the need for a release. For instance, an image that is printed in a newspaper, shown in an exhibition or reproduced in a book might well be immune from a privacy suit. But the commercial sale of coffee mugs or t-shirts with the same image would probably not enjoy such protection. An advertisement almost certainly would not be immune.

          Therefore, if you are on an advertising assignment, you will need to collect releases from every person in your shots. News assignments are a little trickier. You are always better off if you have permission to photograph your subjects and can prove it. But it’s not always possible to get permission and, in the U.S., you can report the news without it. Lacking a release, however, you are limited in how you can license the image later on.

          These days, even editorial clients are requiring releases — and releases using their specific forms — with more and more frequency, so you need to check the terms of your agreements with your clients and stock houses to see what is required.
      • Re: Performer alert.... copyright info

        Wed, February 13, 2008 - 9:18 PM
        Mike you have recourse if it is in private setting, not in a public area in public view, especially if you are not a celebrity, and your likeness was used without permission. If the photographer was photographing as a newsworthy event, you as a performer would have less recourse. I know this sound contradictory.

        www.rcfp.org/photoguide/intro.html
        • Re: Performer alert.... copyright info

          Thu, February 14, 2008 - 2:39 PM
          My issue came about because I was performing at a club (with a cover charge), the event photographer (also hired) took photos of my performance and put them up for sale on his website. Normally, I wouldn't have a problem with this at all... Except the fact that this photog would NOT give me digital copies (hi-res or low-res) for my own personal use. Instead, he tried selling them to me. Pfft. Like I'm gonna buy pictures of my own shit. After arguing with him about this for a while, I just gave up and told him never to take a picture of me again. If I ever see him taking a photo of me, I will take some sort of action against him.
          • Re: Performer alert.... copyright info

            Thu, February 14, 2008 - 6:38 PM
            What was the agreement between the club and the hired photog? You could have pursued it legally. Ask Gordon the attorney.
            • Re: Performer alert.... copyright info

              Thu, February 14, 2008 - 6:46 PM
              Mike

              Obviously if any legal action or some kind of settlement, one as a performer has to understand, how the image is going to be used, where is it going to be publicized and how far and wide the image will appear. One also has to understand, that if the photographer is Annie Leibovitz, and not Abjectphoto, that there may be more bucks due to the performer. Where as if the performer is entitled to fair compensation, one has to understand the difference between a unique image, and what ultimately the photographer is going to make and where it may or may not appear.

              Billboards pull in a lot of dough, very few photographers have those kinds of clients. While I am not a lawyer, one maybe limited by damages on what profits if any the photographer is going to make. Btw, I have never made any money in this community, if any thing I am in debt from all the expenses getting gear.
          • Re: Performer alert.... copyright info

            Mon, February 18, 2008 - 11:27 AM
            Sorry to hear about that Mike and that kind of issue is exactly why I've been trying to share what I know and find out. You do have legal recourse and you can pursue the issue legally. Find out if there is a Philadelphia Lawyers for the Arts group in you're city. They exist in many cities throughout the country, actually. We had one in Chicago.

            The Lawyers for the Arts are groups of Lawyers who do pro-bono legal work because they are fans of the arts and understand the issues that we have to deal with. Definitely find them in you're area and maybe you can also persuade them to do workshops for performers in you're area. Finding out how to deal with the issue is half the battle so if there is nothing you can do now then at least you will know what to do the next time.

            Ethically people don't consider things from our perspective and they usually don't want to have too.
            The workshop that I am trying to do here will also help performers know how to do contracts and ryders for those contracts which state you're exact needs. I was glad I knew about this kind of stuff before I was flown for a performance in Rhode Island so that I could have my fuel already there and paid for by the venue.

            Knowing our rights and fighting for them is pretty important!
            That photographer, Mike, really needs to learn that what he did is both illegal AND unethical!

            Thanks for posting all of those links, Abject!!

            I'm not worried about press photographers, but I do have a right to know when images of my art are published so it can go in my performer resume and press kit. Unfortunately that's the issue I run into with the press is that they are HORRIBLE about letting us know. <sigh>

            Here's to education and learning so things can get better, eh!?!!!
            • Re: Performer alert.... copyright info

              Tue, February 19, 2008 - 7:22 PM
              Kate you are very welcomed, I see the performers as a partnership, often artists are hesitant signing releases, because they don't understand, what they are and what the negotiation process involves. As a performer one has to understand not all images will be ROCKSTAR hits! if so, we both could benefit.
              • Re: Performer alert.... copyright info

                Tue, February 26, 2008 - 9:09 AM
                I, too see things as a partnership. I've always been a huge fan of symbiotic relationships!! (collaborations, etc.)

                The problem is that not everyone in this world is the same and there are many out there who aren't into symbiotic thinking. Its the fact that there are people who don't believe in artists being able to make a living and those who feel like they are entitled to "use" others (artists) rather than support or work with them is something that I've been a life long advocate against.

                One of the reasons I was so enthralled by the Burning Man community is that as an artist it was amazing to be in an environment which loved and accepted the arts 100%. Okay, that statement shows the fallacy in my thinking, actually. Many, in the Burning Man scene are into the arts, supporting it, etc., but there are also many there who are more into using it rather than supporting it.

                Its kind of funny because I started creating the PDF effigy always on-site because I was trying to show others that they too could do art/sculpture, etc. I worked my butt off on those effigies and the regional stuff because I have always been about working to eliminate the starving artist myth/paradigm. I believed that I was supporting arts and artists. This is also why I stepped up to head the Arts Grants thing (the largest factor). I have always known the struggle that artists have to go through to do their art. I have known the costs involved. I have known the sacrifices (career-- which includes health insurance, stability, etc., etc.) that artists have to make.

                I have seen the assumptions of those who say that arts should be no longer funded because they are unneccessary. I have seen artists starving, literally, because their jobs don't pay them what they are worth (foundaries, etc.).

                I just believe that artists should know what their rights are. It should be their choice whether they want to act on those rights. There are many who don't want them to know that they have rights... those are the types who want to make money off of their backs. They don't care about symbiotic thinking and human rights kinds of stuff because they believe in profits over people kinds of thinking and self over other.

                I like my choices.
                I like my human rights.
                I like to choose.

                I also like YOU, abject.

                But you've never been predatory in you're photography or you're thinking and I believe in fighting for you're rights, too. That's because you've always been a supporter of the arts and you are an artist yourself. I've been able to see that for years, though. The fact that you've put all the artistic rights links is the exact kind of insight into you're character which has been telling me that you're worth supporting. If you were "predatory" I would have firmer boundaries around you and speak about that too!

                I'm glad you're you, though. You've always been an amazing asset to the local fire performance community!!
  • Re: Performer alert.... copyright info

    Sun, June 29, 2008 - 8:41 AM
    There are also ways to submit patterened shows as scripts or choreographies to have them protected by that copyright as well. It's a sad truth, but we've had to do it after we had a public show videotaped only to see a horrible imitation appear later that year.

    I do Sideshow and see it all the time, which is so disgusting. I have a story NYC. My friend was doing a really amazing off broadway show he worked years on, and it was doing well. He charged typical off broadway fees- $60 or so a ticket but it was really worth it. I saw my friends show and later the same night paid $15 to watch a different group perform. They took all of my friends skits and did them horribly, including burning themselves on his fire breathing routine. We demanded our money back at the intermission and left. The encore run of my friends show was long over before he could get the legal action through to force the others to stop performing his material. At the 2006 Sideshow Gathering it was turned into a huge joke the first night of performances.

    My point? Protect yourself every way you can, but don't expect immediate results when you have to act on it. I still advocate doing it, but the results are rarely as speedy as we'd like. Sadly.

    Excellent points and wonderful research Kate.
    Thanks for sharing.

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