Copyright: The Law We All Pretend We Don't Understand

In a recent decision, the U.S. Supreme Court found that Aereo, Inc., violated copyright law by allowing subscribers to stream copies of television programs without a license from the copyright holders.  If this doesn't sound like a surprising result, then pat yourself on the back -- you understand copyright law better than 99% of Americans [eds. note: statistic not intended to be a factual statement].

Now, supporters of Aereo would claim that is an oversimplification.  They would say the television programs provided by Aereo were obtained from over-the-air broadcast by its centrally-located warehouse of antennas, and that Aereo was, in effect, merely renting out the use of an antenna and a DVR to subscribers, albeit on an ad hoc basis.  Clever -- but not clever enough, said the Court, CATV (community antenna television) companies already thought of basically the same thing nearly 70 years ago and Congress dealt with that Copyright nuance in 1976.

Now Aereo, after sulking a bit on its website:

... is back at it, apparently seeking a compulsory license as a CATV provider.  Good for Aereo, rolling with the punches like that.  It will be interesting to see if how this new approach pans out.

But I tell you that story to tell you this one: people generally have no understanding (or pretend to have no understanding) of copyright law.  Why is copyright such a hard thing for people?  In my night life as an amateur stage actor/participant, copyright law permeates almost every aspect of the experience: the shows are copyrighted, so are the songs, the music, the dialogue, the logos, and the promotional art. Yet, I am constantly amazed how ignorant even seasoned theater people are of basic copyright concepts.  

In fact, I shouldn't even say "concepts," I should say concept -- singular.  And that concept is this: if you didn't create it, you need to get permission to use it.  

Now, I know the law is usually excruciatingly complicated and filled with nuance.  And the Copyright Act is no different.  It talks about the five rights granted to copyright holders (namely, the rights to reproduce, to create derivative works, to distribute, to perform, and to display) and, in its attempt to be inclusive but also fair, further complicates matters by talking about whether a performance is "public" and uses arcane words like "phonorecords."  And, of course, there are loopholes: works that have fallen into the "public domain" are unprotected and people may make "fair use" of otherwise copyrighted materials.

But what you need to remember is that the public domain and Fair Use doctrines are exceptions to the general rule I stated before.  Want to do Shakespeare?  OK, you are probably in the clear as it has long since fallen to the public domain.  In fact, most everything (except the "Happy Birthday" song for some god-forsaken reason) published before 1923 is in the public domain.  Many things after that are in the public domain too, but the analysis is a bit more complicated due different copyright regimes that existed before the 1976 amendments (one possible source of lasting confusion).  And Fair Use is much more limited than you probably think: generally it refers to use for a limited or “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. 

"There, that ought to do it!"

With all this in mind, here are some things I too frequently hear from my theater acquaintances:

• "We're just doing a song (or two) from the show, and we paid for the sheet music, so we don't need to get permission."

• "We are not charging for admission" or "Admission is by 'donation-only'" or "This is a closed performance" ... "so we don't need to get permission."

• "We are just doing a 'preview' performance for a show we [will do, might do, have done], so we don't need to get permission"

• "This line from the show always bothered me, so I'm cutting it.  It's just one line, I don't need permission."

If you haven't guessed, all of these assertions are -- barring some stipulation in your agreement with the applicable rights holder or a "performance-rights organization" or PRO (in this situation, ASCAP most likely) -- patently false.  Copyright law is not concerned whether you make money (and even if it was it would see through your 'donations-only' facade), nor is it concerned with whether you had permission at one point or intend to get permission later.  You violate copyright law if you perform publicly a song or a scene and you do not have permission of the content creator or the entity that maintains the content creator's rights to do so.

So get permission first -- it's the right thing to do, and you know it.