I love old family movies. You know, those frenetic-yet-nostalgic, motion-sickness-inducing Super 8 films from your childhood? (Believe you me, the cinéma vérité, shaky-cam directors who are currently in vogue have nothing on my dad…) Now that my family’s home movie library has been converted to DVD, there are endless opportunities to force my husband to watch me and my mom ride a camel at “Jungle Habitat” (can I get a shout-out from those of you who grew up in the NY/New Jersey area in the mid-1970’s?) or the fourth of July picnic where the sparkler burned my hand, or — one of my personal favorites — my five year-old self singing “On the Good Ship Lollipop” and dancing the Charleston in the first grade holiday play (trust me, its cuter than it sounds).
And so it was with great anticipation that I prepared our video camera for my seven year-old’s musical theater debut in her summer camp’s production of Grease: The G-Rated Version (no swearing, no teen pregnancy, no smoking, no men rubbing cellophane on their crotches…)
But then we got the letter.
“We have learned,” it began, “that due to our licensing agreement with Samuel French, we will unfortunately not be able to record the performances. The video and/or audio recording of the performances by any means whatsoever is strictly prohibited. We appreciate your cooperation.” Aaaaaaack. How can that be? It’s just a bunch of second and third graders singing “Summer Nights!” Do the copyright holders really want to deprive these cherub-faced, elementary school Pink Ladies and T-Birds of this memento from their childhoods?
Well, plays and musicals are, of course, copyrighted works. Thus, even elementary school drama teachers and camp counselors must strictly follow the procedures for performing a work publicly, or risk legal penalties for infringement. When a school sets out to perform a copyrighted work, it must contact a publishing clearinghouse like Samuel French or Baker’s Plays. A licensing fee or royalty is charged, typically based on theater capacity, number of performances, ticket price and the number of scripts ordered. Special clearance and license fees apply to all productions in New York City and Los Angeles. Many may presume that it is okay to video or audio tape the performance so long as no profit being made, but the truth is, once you have obtained the rights to the play or musical of your choice, you must contact the licensing agent and obtain a video reproduction license if you plan to record performances. Fines can be levied for violation of these rules, ranging from $500 to $100,000. I don’t know what kind of reserves your PTA has, but that ain’t cheap.
That kids are involved is no “get out of jail free card” when it comes to copyright infringement. ASCAP vigorously went after those sweet Girl Scouts, demanding public performance royalties instead of fattening Thin Mints or Do-Si-Dos as payment for their campfire songs. Copyright holders routinely demand that YouTube remove videos of kids dancing to popular music. In 2007, for example, Universal Music famously issued a DMCA takedown notice when a woman posted a 29-second YouTube clip of her toddler dancing in the family kitchen to Prince’s “Lets Go Crazy.” The mom was outraged, protesting that Universal should not use legal threats to prevent people from sharing home videos of their kids with family and friends (and, apparently, hundreds of thousands of internet voyeurs). She fought back, claiming fair use of the copyright, and filed suit in the U.S. District Court for the Northern District of California for misrepresentation of a DMCA claim. While the case is still ongoing, the score is Outraged Mom 2, Music Conglomerate 0, with the plaintiff surviving a motion to dismiss in 2008 andknocking out several of Universal’s affirmative defenses in 2010.
More recently, another hapless parent received a notice from YouTube of potential infringementwhen he posted a 36 second clip of his four year old dancing to a “Kidz Bop” CD song that came inside his kid’s McDonald’s Happy Meal. He was irritated too, and argued that he just wanted to show his family across the country a cute home video of his kid. And our regular readers, of course, already know all about the perils of DMCA takedown over-aggression.
Back in my kitchen, I lamented over the “no camcorder” notice. We didn’t have permission to videotape the kids’ performance of Grease: The G-Rated Version. End of story. I’ll admit to being briefly, just for a teensy weensy nanosecond, tempted to smuggle a camera in my purse. (Isn’t it fair use if a parent privately videos their kid’s moment in the sun? Aren’t I entitled to a Royalty Free Remembrance?) But ultimately, I felt a legal and moral responsibility, both as an entertainment litigator and a role-model mom, to comply.
And so, we have no “family movie” of our daughter’s play for posterity. Decades from now, she’ll be unable to force her husband to watch how cute she was in the “Beauty School Drop-Out” scene. But if you were to ask my husband, my guess is he’d say there may be something to be said for policing public performance rights after all…