For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Monday, 1 September 2014

Fair deal or iMoan? Kate Bush’s request to leave the smartphones at home

Love them or loathe them, mobile communication and recording devices have become an integral part of our lives. They not only accompany us through many of the most intimate and meaningful experiences in our lives but allow us to record them and share them with others. There can be occasionally heard, however, the still, small voice of someone asking us not to.  One such moment is discussed here by Katfriend and occasional guest blogger Dorothea Thompson. This is what she says:

Kate Bush (right), the idiosyncratic songstress of 'Wuthering Heights' fame, played her first live show in 35 years at London's Hammersmith Apollo last Tuesday night, kicking off 22 dates at the venue, all of which sold out in minutes. But before Bush made her celebrated return, she made a request via her Fish People website: that it would “mean a great deal” if fans refrained from taking photos or filming during the shows. The reason given was that she wanted to have contact with the audience, “not with iphones, ipads or cameras”. But the request is pertinent to the persistent issue of photos and video recordings at live events, and stakeholders' attempts to control them.

Copyright may subsist in various elements of a live performance including music, lyrics, choreography, sound recordings, and visuals. Taking a photo or a video of such elements may constitute copyright infringement as a reproduction of the respective copyright works. The dissemination of that image or recording, such as sharing via social media, may itself constitute infringement as communication of the work(s) to the public by electronic transmission.

The Hammersmith Apollo
A potential exception to infringement may be private use, but this could only be relevant to capturing the photo or video, and not to its dissemination. An alternative may be criticism, review or reporting of current events or as, of 1 October, the UK's new fair dealing quotation exception. But it seems unlikely that the casual naming and dating of a clip online (accompanied by those irritating hashtags) would inadvertently constitute sufficient acknowledgment. Further, these exceptions apply only in relation to works not previously made available to the public -- possibly barring this exception for one-off, first-time, or highly secretive events.

So it seems that taking and sharing photos and videos, without permission, are likely to remain potentially infringing acts. For rights-owners, practically speaking, what can be done?

Like initial responses to control file sharing, heavy-handed user-directed action is likely to be both ineffective, and bad PR (a July white paper from the American Bar Association states that US anti-file sharing lawsuits “have been expensive, do not yield significant financial returns, and can cause a public relations problem for the plaintiff”).

Almost everyone attending an event now has at least one device on their person, and there are no means of telling those who wish to take photos or clips for private mementos from those who seek to publish them online (likely the majority). Smartphones, tablets and the like are seen as essential items, and are high-value in terms of not only financial but sentimental worth. This makes control measures such as confiscating devices on entry not only logistically difficult, but also a potential brand perception disaster: 'criminalising' your fans may not make good business.

There was the 2011 story about an Apple patent for infrared technology for iOS device cameras that could prevent copyright infringement by blocking users from taking pictures or shooting video at concerts, cinemas, etc (where infrared would be emitted into the audience), but it seems that was never implemented. With the continual blurring of interests between the hardware producers and content industries, however, perhaps technology will provide future solutions.

In the meantime, and with merely a few words, Kate Bush resolved the issue, for her at least, and only furthered her brand loyalty: the media output thus far has apparently been limited to official photographs. This suggests there is a way to handle the situation, and it isn’t via the courts (apologies, fellow lawyers!)

By further example, at a recent Secret Cinema ‘Back to the Future’ immersive cinema events, attendees were asked to leave phones and personal cameras at home -- apparently in keeping with the 1950s theme. But the allowance of disposal cameras (sold at the event) somewhat undermined strict historical reasoning; and with official digital photos published via social media throughout, the suggestion was more that there was something to be gained by the audience from the lack of constant distraction provided in particular by smartphones.

Technology has undoubtedly completely changed the way in which audiences consume content and interact with artists, performers, and events. Aspiring musicians, actors, writers, etc almost universally use social media and other technological tools for direct, instant access to fans and potential fans. Perhaps the price of this constant access is the expectation from audiences that in return they are able to share their experiences across social networks -- such sharing probably only increasing with advances such as the roll-out of 4G.

Conceivably, to overcome the mass urge for media-sharing (otherwise encouraged by brands and rights holders), an event must highlight the benefits to its audience of a technology-free experience. Roger Daltry of The Who recently summed it up, stating that experiencing a gig via a phone is “weird”: “Looking at life through a screen and not being in the moment totally -- if you’re doing that, you’re [only] 50% there”.

But what would happen with less adoring, respectful.. (middle-aged!) fans than those of Ms Bush? Would a polite request similarly work for a brash, anarchic punk rock gig? Or a main-stream, mass-market huge capacity festival? With Bush herself drawing a distinction, stating she had purposefully chosen an intimate theatre setting rather than a large venue or stadium, her request may in fact have been a unique solution for a wholly unique artist.

6 comments:

Anonymous said...

One VERY large caveat to any "may be infringement" position is the fact (at least for those of us in the US) that many "potential transgressors" feel that any personal use with the slightest modicum of "modification" is fully protected under the Fair Use doctrine. Even if the "potential transgressor" is unaware of the legal position, there is a groundswell of popular belief that anyone can do anything with anything out there, if that thing is of a personal nature.

Such a belief strikes terror in the typical rights holder and the concerns of financial gain that so often drive the control mechanism, as any adjudication of ANY contest on such grounds is necessarily fought on a case by case, individual by individual basis - practically an impossibility with the ability of today's technology.

If - and I grant that the legal issue is by no means settled - this position is taken as a given for argument's sake, then the only recourse to control is through the contract angle. The contract angle is NOT new, and any concert goer, and sports event attendee, really anyone who brushes up to the notion of someone wanting experiential control can readily attest to.

If Miss Bush truly wants a personal experience with as many as possible, one may fairly ask if she would be willing to give her shows for free, thereby attracting as many as possible, and why should would not view those with iphones as just an avenue for spreading even wider her talents...

(note that I am a HUGE fan of Kate's work)

Francis Davey said...

Just wondering about a photograph of a live performance being an infringement. Of course there might be copyright images (eg flats) used in the performance which might (if not incidentally included) trigger copyright infringement, but surely a performance itself isn't infringed by taking a photograph of it? Not all things that can be photographed are protected (cf Creation Records).

Or am I missing something?

Anonymous said...

I guess a choreographed "moment", including the arrangement of the performer, any dancers, puppets, stage machinery and set, lighting, pyrotechnics and the like would be considered a part of a dramatic work. The question then would be whether such a "moment" is a substantial part of the dramatic work, such that photographing it would be an infringement. It would depend, I think, on the significance of the "moment" in the performance as a whole.

Anonymous said...

I guess I have to ask: does choreography earn one copyright protection? I thought protection only came into being when something was fixed in tangible media.

I think there is some inadvertent expansion of droit moral bleeding into the picture...

Anonymous said...

An interesting approach that I came across recently -- at a garden actually, of all places -- was to declare that, as a condition of entry, copyright in all photographs etc taken on the premises would be ceded to the owners of the garden.

I'm interested to know whether Kat readers thinks this works.

If somebody posts a picture of the garden onto the internet (the owners' concern), can action be taken (and perhaps injunctions be obtained) on the basis of this notice posted by the entrance gateway. (Since administrative/fast-track/rough-justice measures often exist for claimed breach of copyright)

Or, if the poster on the internet avers that they have *not* ceded their copyright, does that protect them from any take-downs until the contract issue has been explored?

Francis Davey said...

Section 90 of the Copyright, Designs and Patents Act 1988 requires that any legal assignment of copyright must be in writing signed by or behalf of the assignor. So there'd be no legal assignment of the copyright.

That doesn't preclude an assignment in equity, but I'd have doubts about whether any enforceable contract was formed.

You cannot "trap" someone into becoming a party to a contract with words like "by entering this property you agree to be bound by these words....". I could enter and then claim that I was a trespasser. I suspect you would be hard pressed to claim any proprietary right in my photographs in a trespass claim.

Things might be different if you made me sign something, or take some more positive action such as handing over an entrance fee.

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