video of performance

[tejotaaa]

Greetings. I am a comedy performer and have a question. If i video a performance of my group at a venue. Who owns the copyright, is it our group or is it the venue where it was performed?

[AndyJ]

Hi tejotaaa,
The director and producer (jointly if they are two separate people) of a video own the copyright in it, but they need the permission of the performers who take part in it.
Just to break that down, there are two different 'rights' here. Performers have something called performance right which allows them to decide if and how a recording of their performance can be exploited. And once they have given permission for the video or other recording to be made, they may be entitled to a share in the proceeds from the sale or hire or other commercial exploitation of that recording. Sometimes this will be in the form of a royalty or it can be an upfront payment. This approach applies as much to movie actors (eg Hollywood A list stars) as it does to session musicians who make some modern bands sound good.
You as a videographer will own the copyright in your recording and can exploit it as you see fit, within any constraints which may have been imposed by the performers. Performers also have moral rights, such as the right to be identified, and for their work not to be treated in a derogatory way.
There's a complete part in the Copyright, Designs and Patents Act which deals with performance rights, but here is section 180 which summarises things:

180 Rights conferred on performers and persons having recording rights.

(1) Chapter 2 of this Part (economic rights) confers rights—

• (a) on a performer, by requiring his consent to the exploitation of his performances (see sections 181 to 184), and
  
  (b) on a person having recording rights in relation to a performance, in relation to recordings made without his consent or that of the performer (see sections 185 to 188),

and creates offences in relation to dealing with or using illicit recordings and certain other related acts (see sections 198 and 201).

(1A) Rights are also conferred on a performer by the following provisions of Chapter 3 of this Part (moral rights)—

• (a) section 205C (right to be identified);
  
  (b) section 205F (right to object to derogatory treatment of performance).

(2) In this Part — “performance” means —

• (a) a dramatic performance (which includes dance and mime),
  
  (b) a musical performance,
  
  (c) a reading or recitation of a literary work, or
  
  (d) a performance of a variety act or any similar presentation,

which is, or so far as it is, a live performance given by one or more individuals; and “recording”, in relation to a performance, means a film or sound recording—

• (a) made directly from the live performance,
  
  (b) made from a broadcast of the performance, or
  
  (c) made, directly or indirectly, from another recording of the performance.

[ .. ]

The venue (or the promoters) have no actual rights over your performance or the resulting video although they can, for example, impose rules as a condition of using the venue about whether or not videoing as permittted. For instance most venues will have conditions of entry which ban any professional photography or video recording by members of the audience.

[tejotaaa]

We performed the piece and also recorded it with my camera at an outdoor theater event which we still perform at. We have since started our own outdoor theater event that does a lot of cross promotion for the show where we filmed and the new show that we own. The venues are similar but happen at different times of the year, and we still perform at the original show as well. This short video clip was on the website for our new venture and the owner of the orignal venue said he was going to sue us for infringing on his copyright (because the video was taken on his stage.) Again, the performance was our material, we were the actors and it was my video camera that filmed the piece in the hands of a friend of mine. Everyone knew it was being filmed and many times performers at this venue use video of shows to promote their shows. This was at an outdoor event that people pay to get into. That is the specific scenario.

Thanks for the help by the way.

[AndyJ]

Hi tejotaaa,
Unless the venue owner comes up with something more specific, I don't think you need worry about being sued.
There is no copyright in a stage. Conceivably if there was some sort of elaborate background it might qualify as an artistic work, but firstly I think there would be an implied permission to include the background when you hired the venue, or agreed to appear there, and secondly even if that was not the case, it could argued that inclusion of the background was incidental and therefore there was no infringement.
I really don't think you have any need to worry.

31 Incidental inclusion of copyright material.
(1) Copyright in a work is not infringed by its incidental inclusion in an artistic work, sound recording, film or broadcast.
(2) Nor is the copyright infringed by the issue to the public of copies, or the playing, showing or communication to the public, of anything whose making was, by virtue of subsection (1), not an infringement of the copyright.
(3) A musical work, words spoken or sung with music, or so much of a sound recording or broadcast as includes a musical work or such words, shall not be regarded as incidentally included in another work if it is deliberately included.