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Might this fall under fair use?

Williamsport, PA |

My father is on Military orders in Saudi Arabia, and I wanted to take a video of my younger brother in his high school play. Unfortunately, the school did not purchase the rights to create a video, and resell the production, so there will be no purchasable video made to send to him. They are requesting that no recordings be made of the play, but it's something that he is missing, and that he'll never be able to get back again. My question is, if I take a video of the play, send him, and only him the video, and do not re-sell this video, would it not fall under fair use? There is no effect on the potential market for the play, or the value of the play because the individual receiving the video did not pay for it, and there is no possible way for him to attend the play.

I realize that the school has a right to stop me from video taping the play, but I also realize that if my description is absolutely accurate, there really isn't a way for me to be found in violation of any Copyright laws, as there is really no way, or any legitimate reason for anyone to file any sort of law suit, since the video would not cross anyone's radar. But being confident in a legal argument to back up my reasoning as to why I should be able to take the video is always a solid way to gain leverage when debating with an ignorant band of school officials hell bent on pushing their holier than thou agenda.

Attorney Answers 5


  1. "Fair use" is only a defense if you get sued for copyright infringement, not a right. There would be many factors to test whether it qualifies which are beyond the scope of this forum. You should consult with an entertainment attorney.

    Ivan J. Parron, Esq.
    888-457-3771
    http://ParronLaw.com


  2. I would try to get special permission form the school given the circumstances. But be beseeching, not demanding. Do not assert fair use or you will get nowhere.

    The big problem is not only the playwright’s copyright, although their performance license may not allow the school to allow taping. It is also the visual likeness rights of the players. So you will need a release from each of them.

    Licensed in Maryland with offices in Maryland and Oregon. Information here is general, does not create a lawyer-client relationship, and is not a substitute for consulting with an experienced attorney on the specifics of your situation.


  3. If the video is taken in the open and you do not show it for money or to the public - meaning if it truly is a family video that will only be seen privately (no YouTube), you should be fine.

    I am an attorney in Pennsylvania but I am not currently *your* attorney. Nothing in my communication should be construed as creating an attorney/client relationship. Please contact me if you wish to retain me as your counsel.


  4. This is one of those times when common sense and the law do not necessarily align. The above are good legal answers. If it were me, I would tape it so the school did not know - keep them out of trouble - and keep the tape strictly in the family. You could asset the Sony time shifting defense if you needed to. However few copyright holders are dumb enough to sue someone for sending a video to dad on deployment. It woukd make a nice story for the 5 o'clock news.

    This is not legal advice. Even if it were, fee legal advice is worth what you pay for it. The facts of every case are different and should be addressed by a competent attorney who has all of the facts.


  5. Your taping would not fall under Fair Use, but could fall "under the radar." I tend to agree with the attorneys who see only minimal liability in shooting the play surreptitiously, although doing this would certainly violate the rights of the copyright owners and the school to control access and conduct on its premises. Contrary to the tone of your question, you should probably cooperate with the school authorities in the event of any dispute about videotaping the play(especially if you are discovered doing this without their permission). They can righfully revoke your permission to attend the play on their premises.

    No attorney client relationship is created with this post and no legal advice has been rendered. This is for general informational purposes only and does not apply to any specific set of facts which have been reviewed by me. The information contained in this response has not been verified and is not necessarily accurate or reliable, or applicable to any particular jurisdiction. Always hire a licensed attorney to represent your legal interests.

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