video recordings of ASL signed school performances
- January 23, 2006 @ 12:14pmjdeb says:The state School for the Deaf posed a question on circulating recordings of theatric performances:
"When the school videotapes sporting events or theatrical events (they did get permission to DO the plays), can the videos that are kept in our school library be lent out to others? The question arises because of the limited number of productions performed in American Sign Language. Some teachers in the public schools, who teach Deaf and Hard of Hearing students, would benefit from watching our versions of the play. We do let our own students borrow them, but I received a request from another teacher who said : " I wish there were more productions done in American Sign Language for my students to view:" It is vastly different than watching captioning."
I tend to think that the educational exception may apply to use of the tapes in the classrooms, although I do not know the terms of the original permission for performance of the play at school. Any ideas or input? - January 24, 2006 @ 8:20amwilliamsonl says:The performance rights generally acquired when staging a dramatic work do not include the right to videotape or retain a copy of the performance. There may be some exceptions to this that I am not aware of, but generally you may not retain a copy of a performance without permission.
Anyone else have a more informed opinion? - February 9, 2006 @ 12:25pmCarrie says:I'm going to investigate this. It's a complicated question because it appears that performance, copying, and distribution are all involved to a certain extent. From my reading of the specific exemptions available to us, this issue (of course) is not covered. There are special exemptions for the hearing impaired but they do not seem to match up with this situation either. -carrie
[quote]The performance rights generally acquired when staging a dramatic work do not include the right to videotape or retain a copy of the performance. There may be some exceptions to this that I am not aware of, but generally you may not retain a copy of a performance without permission.
Anyone else have a more informed opinion?[/quote] - February 9, 2006 @ 3:07pmCarrie says:I did some research and spoke with one of the copyright attorneys who we work with frequently.
As with so many of our copyright queries, the answer to your question about taping a public performance, lending the copy etc etc is determining whether the use is fair.
Quick response: yes, this is a fair use.
Rationale to address both the copying and the lending:
Purpose of the use
This is non-profit educational use. By providing the videotapes to hearing impaired individuals who are part of the educational community that you serve, the library is advancing learning, a social beneficial purpose that will never be for economic gain.
Nature of the work
This will depend on what kind of performance is taped. If the performance is a dramatic literary work - which is generally what schools tend to perform - we have to recognize that these works are regarded by the courts and in the law as "special." While the school obtained permission to perform the work, they do not have permission to copy the work as was noted by williamsonl. (When negotiating the right to perform the work, they drama folks may have also agreed to never copy the performance. If they did so, then all bets are off. The contract dictates.)
One must also consider whether the play is currently "hot" or being performed on Broadway or is a big Tony winner. I would tend to regard a play like "our Town" as more safe than say some more current play, especially if it is a musical because are extra special forms of dramatic literary works.
So assuming we are dealing with a dramatic literary work, the nature factor tends towards the unfair side.
Amount of the work used
In my opinion, this factor does not need to be considered much. When are you not going to tape a play in its entirety when it is a narrative and tells a story from beginning to end ?
Effect on the market
Minimal. And certainly taping the play is not going to off set a sale of the Hollywood version of the play or the Broadway stage play. No matter how great your drama dept is, we have to accept that the performance won't be the one that people wish to buy. Plus you are not selling it.
So I would say this use is fair.
A question, however, is that some people believe first sale (the right to lend) does not apply to fair use copies. The law does not say this, but there is some controversy. (In my opinion, I think a fair use copy is a lawful copy and 109 talks about lending lawful copies....) So again we must consider fair use.
The socially beneficial aspects of the proposed use far outweigh any harm to the copyright holders. I think you can lend the tapes to the hearing impaired and to any other class of students within your academic community.
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