Rights before the camera: what recording a work requires

By Joey Calkins · Section Capture

The camera is the cheapest part of recording a performance. The expensive part is permission, and it is a stack of separate permissions from separate holders, each of which has to be obtained on its own terms.

This article describes United States practice in general terms. Copyright law differs by country, licensing customs differ by publisher, and none of what follows is legal advice. Rights questions belong with a lawyer or directly with the licensor.

Permission to perform is not permission to record

This is the single most common and most expensive misunderstanding in the field. A licence to stage a work grants the right to present it live to an audience present in the room. It ordinarily says nothing about capturing that presentation, and where it does mention capture it usually prohibits it or restricts it to a single archival copy that may not be shown.

Recording and distribution are a separate grant, negotiated separately, and typically priced against the territory, the duration of availability and the size of the audience. A production that discovers this after the cameras have been booked has bought equipment it cannot use.

Dramatic and non-dramatic are different regimes

Music performed as part of a staged dramatic work is licensed differently from the same music performed in concert. Concert use of songs is generally administered collectively through performing rights organisations. Staged dramatic use is licensed directly by the rights holder or its agent, work by work, and comes with conditions attached to the production itself.

Those conditions frequently include restrictions no one anticipates: that the work be performed as written, that cuts require approval, that the setting not be changed, and that no recording be made. They are contractual rather than statutory, which means they vary between licensors and are negotiable in ways the law is not.

Public domain has an asterisk

Works whose copyright term has expired may be used freely. In the United States that boundary moves forward one year at a time, and as of this year it covers material published up to and including 1930.

The asterisk is that the edition may not be free even when the work is. A modern critical edition, a new orchestration, a performing version with editorial realisations, a translation, or a new set of parts can carry its own copyright as a derivative work. An opera from the eighteenth century performed from a scholarly edition prepared last decade is a public domain work in a protected edition, and the edition is what the orchestra is reading from.

The people on stage hold rights too

Performers are not covered by the work licence. Where a company operates under collective agreements, those agreements govern whether a performance may be recorded, what it may be used for, for how long, and what additional payment is due. Different agreements cover actors, musicians and other categories, and a production can be compliant with one and in breach of another.

Where no collective agreement applies, consent is individual and should be in writing before the performance rather than collected in a corridor afterwards. Consent obtained under time pressure from someone who has already performed is worth less than it looks.

Authorship claims that are still unsettled

Choreography fixed in a tangible form is protected as a work in its own right in the United States. Claims that stage direction constitutes a separate authorship have been argued and remain contested. Set, costume and lighting designs can attract protection as works, and the practical question of what a recording of a production reproduces has no tidy answer.

The prudent approach for a production intending to record is to treat the creative team as rights holders in the contract even where the law is unclear, and to settle the question in the engagement rather than in the edit.

Music that was not in the score

Rights work is usually organised around the main work and then undermined by the incidental material. Preshow playlists, a song on a practical radio, a recording used for a scene change, a fanfare, a snatch of something a character hums: each is a separate use, and recorded music carries two layers, the composition and the particular recording of it, held by different parties.

Live performance of such material is often covered by a venue's blanket arrangements. Recording it is generally not, and synchronising a recording to picture requires its own permission. Productions consistently discover this at the edit, where the choices are to clear it late at a poor price, to replace it, or to cut the scene.

The audience is in the frame

Cameras pointed at the house record identifiable people who came to watch a performance rather than to appear in a recording. Signage at the entrance, wording on the ticket and framing that avoids the auditorium are the usual measures, and requirements vary by jurisdiction. Where children are visible the standard is higher and consent is generally required from a parent or guardian rather than implied by attendance.

What we cannot verify

Licensing terms are private contracts and are not public documents, so general statements about what licensors permit describe common practice rather than any particular agreement. Statutory positions change and vary by country; the boundary given above applies to one jurisdiction at the time of writing. Nothing here should be relied on for a specific production. The competent sources are the licensor, the applicable collective agreements, and a lawyer instructed on the actual facts.