Mass copyright switcheroo
June 6, 2019 7:52 PM   Subscribe

For the last few years, I've been doing a multimedia comedic performance of rather small scale (10-40 people/show) that uses a boatload of copyrighted images. Since I never considered recording it, posting it online, claiming those images as my own, or generally profiting from their use outside of the paltry $5-$10 I would get for a performance, I never really considered it a problem. Cut to this week, where I've found myself staring down the barrel of a taping. Please help.

I know it's generally immoral to be using those images which is why I've been turning away from them and either using things from wikimedia or doing my own admittedly terrible illustrations. However, there's still about 300+ images that I've plugged into my performance over the years. For many of those images, I have no idea where I even found them. A reverse google search yields nothing. For the rest, some of them are key to entire pieces, some are altered beyond original recognition. Should I just do my best to replace them all? Should I hope that the copyright holders are negligent and/or apathetic? Does it even matter since the use could (with some simple legal gymnastics) fall under parody law?
posted by Philipschall to Law & Government (7 answers total) 2 users marked this as a favorite
Fair use.
posted by zadcat at 7:59 PM on June 6 [3 favorites]

Do your best to replace as much as you can, if only for peace of mind and freedom to distribute recordings in the future should you ever want to. (And if you haven't already, check out Pixabay to augment wikimedia. Their license is essentially like CC0 for your purposes)

In my lay observation, unless you have money to sue for, your risk is probably low and generally in your situation if there is a problem it will usually start with a cease-and-desist (or similar) first, which means you'll usually have the opportunity to easily avoid consequences and costs by immediately ceasing to use that material in question. (If you worry that the person who did the taping risks bringing an infringement to a rights-holders attention, bear in mind that the person distributing the taping is also infringing by distributing material they do not have rights to (your own material as well as the third-party material you use.) Since at least some of the material is presumably your own, you have the legal right to require they not distribute the taping, though you'll have to judge any likely social/reputational consequences of that)

I wouldn't worry about stuff that has been altered (by you) beyond recognition, I would triage for replacement based on what elements are most likely/able to attract problems. Chances are fair that none of it is necessary, but I think it's best to avoid putting blood, sweat, and tears into creating work in such a way that it can be taken away from you on a whim.
posted by anonymisc at 8:29 PM on June 6 [4 favorites]

I would strongly advise you to contact your state's pro-bono legal organization for the arts: New York Volunteer Lawyers for the Arts, New Jersey Volunteer Lawyers for the Arts, or Oregon Volunteer Lawyers for the Arts might be yours.
posted by DarlingBri at 4:41 AM on June 7

It's true that a cease-and-desist is not the end of the world, but a cease-and-desist does mean that you have to cease and desist using the materials in question, which I believe would mean you wouldn't be able to distribute/show the tape (or at least the parts of the tape containing the material you've been told to cease and desist using). If you or someone else is investing significant time and/or money in the taping and/or you hope to use the tape in years to come, it's in your interest to get this as right as possible.
posted by mskyle at 7:03 AM on June 7

As the text at zadkat's link says, fair use is a copyright provision that lets you use copyrighted material under certain circumstances for certain purposes. Those purposes include criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. "Comment" is a broad street, and has been held to include parody, even when done for profit.

So, if your "comedic performance" could be considered parody (rather than satire), you may be in the clear. To qualify as such, you'd have to be making fun of the things you are showing, rather than something else (which would make it satire). Best to read the full wikipedia link. IANYL, however, and TINLA.
posted by beagle at 8:46 AM on June 7 [1 favorite]

A taping for what?

What is actually legal, what you can get away with without getting sued for, what you might get sued for (or publicly dragged on Twitter about) even if it is legal, and what a broadcaster or distributor and their errors & omissions insurance company are going to require are all very different things. If this is a professional production to be distributed in a professional manner, you will need to discuss this with the producers/distributors of the show.
posted by jacquilynne at 9:28 AM on June 7 [2 favorites]

I work for an organization in the legal field (in Oregon) with several different sub-groups of specialization areas. One of the sub-groups had been posting materials from the meetings on their website for years. Two years ago they received a demand for payment because one of the speakers at one of their events had used copyrighted cartoons in a Powerpoint slide for the event. By hosting the Powerpoint slideshow on their website, they were "distributing" it.

These are lawyers, and even though they didn't realize there was copyrighted material in the program materials, they still had to pay a licensing fee.

I say that to say this: there are law firms out there who scrape content online looking for copyright infringements to make you pay a licensing fee. And even though these attorneys weren't charging money for the content and it was used in an educational setting, it wasn't considered fair use.

Be careful. You can contact the Oregon State Bar's lawyer referral service here and speak to an attorney for $35 if you want to know your rights and responsibilities.
posted by tacodave at 2:14 PM on June 7

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