Copyright of Performance Videos and Profitability of Online Performances

Jake Lee
President of LEEway,
Affiliated professor at the Intellectual Property Department of Dongguk University

 Introduction

Amid the global pandemic, performance producers can neither stage performances nor bring audiences. As an alternative, they have produced and presented performances before empty seats in order to meet their audience online. But copyright issues make them feel frustrated even more. In such a process of making videos out of performances, producers are facing copyright problems they haven’t known before. As nobody knows when the pandemic will end and when such a disaster will come again, our future is uncertain. Under these circumstances, this article deals with the following questions: “How could we solve imminent copyright problems?” “How could we prepare for our near future?” “How could we come up with a revenue model from a more long-term perspective?” Before going into details, I would like to answer a few questions asked by Mr. Kil-jun Lee (CEO of Brush Theater, performing arts production company) on the occasion of Korea Arts Management Service’s podcast about “Intellectual Property Rights of Performance Videos.”

 Q1. There are so many confusing and complicated terms such as intellectual property rights, copyright, performing rights, patents and trademarks. How do they differ from each other?

Intellectual property rights are rights to intangible property gained as a result of human intellectual activities. Intellectual property rights are divided into industrial property rights and copyright. In the scope of human intellectual activities, industrial property rights concern creative products of industrial and economic nature that are technical and practical. Concrete examples of this include patents, utility model rights, design rights and trademarks. On the other hand, copyright is about aesthetic products that express human thoughts and emotions. Copyright includes economic rights and moral rights of the author. Moral rights of the author protect the author’s dignity and personal benefits. These rights are of personal nature so they can’t be transferred to a third party and they expire with the author’s death. Concrete examples of this are public exhibition rights, the right to indicate one’s real name and the right to the integrity. Economic rights protect the author’s economic benefits generated by the use of his or her works. The author can transfer these rights to a third party or to his or her children, put them in charge of someone or relocate them. These rights are protected not only throughout the author’s life but also 70 years after his or her death. Depending on how the rights are used, economic rights have several categories: right to reproduce, performance rights, public transmission rights (broadcasting, transmission and digital voice transmission), public exhibition rights, right to distribute, rental rights and remake rights. Lastly, copyright is given not only to creators but also to those who contribute to creation through their performance, recording and broadcasting of a certain work, such as singers, performers and record labels. In this case, their right is called “neighboring copyright.”

 Q2. When producing a performance about a specific person, is there any aspect of copyright I should take note of?

When producing a commercial performance about a specific person, you need to obtain permission regarding that person’s right of likeness and right of publicity, rather than considering copyright. The right of likeness is part of personal rights so if you use or publicly exhibit someone’s face or name without his or her consent, you infringe on his or her right of likeness. An exception may be made if you don’t use the person’s information for commercial purposes and you use such information for the public good as in the case of news coverages. However, the boundary between what is private and public is quite vague. So it is important to obtain permission to use such personal information by fully explaining your project to the person, rather than making your own decision about publicness. Among those having the right of likeness, celebrities, athletes and other well-known people have a great economic value only with their faces and names. Their property right to their personal information is called the “right of publicity.” Unlike the right of likeness, which belongs to rights of personal nature, the right of publicity is a property right so the person may transfer this right to a third party or to his or her children. The Korean law doesn’t specify this right yet but in the entertainment industry, the right of publicity is specified in exclusive contracts or performance contracts signed by singers and performers.

 Q3. When it comes to editing a video of the existing performance and sharing it on TV or the internet, what factors do I need to consider?

Amid the global pandemic, numerous producers, performing arts companies and theaters have edited and modified their existing videos in order to make new ones and offer them to broadcasting companies or online service providers. If you use these performance videos for broadcasting, performances and exhibitions (whether it be for-profit or non-profit), you need to first check the contract you signed with the scenarist, director, performers and production crew. Have a look at the clauses concerning such reedited products to see how you reached an agreement regarding the different parties’ rights, extent of use of the material and sharing of profits made from the reedited videos. If there isn’t any clause concerning reused content or if relevant clauses may be interpreted in different ways due to their vagueness, you need to draw up a new contract concerning permission to reuse the content. Nevertheless, it is not easy to establish such a contract. I will explain how to solve this problem at the end of the article.

Q4. Since the outbreak of the pandemic, untact, online performances have taken place actively. For the future production of performances, what do I need to prepare for online services?

As in the case mentioned above, you may not have signed contracts with proper clauses specifying the reuse of content. Consequently, you may have hurriedly signed a contract to obtain permission for the reuse of the content with each performer and copyright holder. From now on, you need to make sure you discuss everything sufficiently beforehand and reflect it in your contract. To be more specific, from the moment you produce different types of offline content (e.g. play, musical and concert) with the scenarist, director, performers, music director, art director and production crew, you need to discuss how to reuse the content: all parties’ rights, extent of reuse and sharing of profits. Going beyond just modifying and editing the videos later on, you need to be prepared for the production of diverse forms of reused content. Indeed, reused content could develop into diverse forms including remakes, additional content and merchandising. Technological development may lead to reused content in a totally new form we haven’t heard of. So it is actually impossible to reach a concrete, impeccable agreement between different parties for all these details that may come in the future. Nevertheless, regardless of the type of reused content, you need to clarify each party’s rights, which form the basis of the whole process. You may believe that clarification of the extent of reuse and sharing of profits in your contract may cause problems for the producer later on. In such a case, you could write in the contract that “the parties shall discuss these matters later on, in good faith.” The Copyright Act is a special law so it prevails over other similar laws. However, about 90% of copyright came from civil law. Therefore, if you establish a sensible and fair contract based on the major principles of civil law (i.e. “doctrine of good faith and sincerity” and “principle of private autonomy”), you won’t face any big problem even in new circumstances in the future. Here, what is “sensible” and “fair” is important. In the Korean filmmaking scene in the past, producers/investors required copyright holders (e.g. scenarist, director and music director) to transfer not only their property rights to reused content but also their personal rights, which was a deplorable practice. Transfer of personal rights is impossible under the Korean law. So even if both parties sign a contract requiring such a transfer, that contract is invalid. A performance is a composite art made by artists of different genres and its producer owns copyright to such a composite product. Nonetheless, such a composite product’s elements such as its scenario, music and art can be used separately. And each of these elements’ creators still has copyright. So you must respect their copyright. At the same time, the producer of the performance could obtain from each copyright holder permission to reuse the content in a very comprehensive way beforehand. This is to ensure his or her seamless economic activities. In that case, it could be a sensible and fair agreement for both parties.

Q5. Online presentation of performance videos had to start on the occasion of Covid-19 but it is difficult to make profits compared to the presentation of offline performances.

Before the outbreak of Covid-19, performance producers made advertising and promotional videos in order to promote their offline performances. But since the onset of the pandemic, they have been forced to produce untact performances, to make videos out of them and to present them online. For now, online performances are just playing the role of a very limited alternative or supplement. Nevertheless, with the spread of Covid-19, the online performance platform market has rapidly grown around the world. In the post-pandemic era, online performances will go beyond a simple supplement to serve as a stimulus maximizing the profits of offline performances. To enable this, not only production companies but also entire Korea society, which will be the final user of culture, needs to be prepared wisely.

Fourth Podcast about Video Production of the Performing Arts ©KAMS

Union of Different Performance-Related Organizations

In the Korean performing arts scene, a variety of organizations exist. They include the Performing Arts Management Association of Korea, Korea Association of Performing Arts Producers, Korean Cultural & Arts Centers Association, Korea Cultural Artist Association, Korea Entertainment Producer’s Association, National Theater Association of Korea, Korea Musical Theatre Association and Korea Dance Association. The country also has public institutions supporting them such as Korea Arts Management Service and Korean Artists Welfare Foundation. While Korea’s music industry has four trust organizations (Korea Music Copyright Association and the Korean Society of Composers, Authors and Publishers for composers/lyricists, Federation of Korean Music Performers for singers/performers and Recording Industry Association of Korea for record labels), the country’s performing arts scene has a greater number of associations of genres. This is quite natural because the performing arts include different genres such as the theater, dance, musicals, classical music and traditional Korean music. And in the performing arts scene, theaters, producers and performers sometimes see their interests collide. But even considering such characteristics, these organizations have taken measures too separately, in the context of the pandemic. So their energy has lost its focus. What if all these performing arts organizations get together to have once voice? In order to support their members facing a crisis, these organizations should ask the government to provide a special rescue package for performing arts practitioners. They also need to recruit professional jurists in order to establish and share a standard contract for reusing past performance videos from archives. At the same time, they also need to establish and share a standard performance production contract, which may not be perfect but which could be accepted by different stakeholders in the performing arts scene. Let me share a concrete example of this. In the Korean music industry, TVXQ became the victim of a slave contract and filed a lawsuit. On that occasion, the country’s Fair Trade Commission came up with a standard exclusive contract and shared it. At first, everyone was reluctant to adopt this contract form, saying that no company or singer/performer would use the form. But ten years passed and today, almost all entertainment management companies use this standard form.

Public Online Trade Platform

It wouldn’t be easy for small and medium-sized production companies to supply their performance videos to major platforms and OTT media service providers (e.g. YouTube, Netflix, Naver, wavve, seezn and Watcha). So it is time for the government to step in. First of all, the government should gather together the vast archives owned by Korea’s national and public performing arts companies and theaters run by the government. Next, it should add small and medium-sized production companies’ content to the archives. This is how it could complete a public, non-profit ‘trade platform’ which could be made available for huge platform owners so they can engage in trade in favorable conditions. For example, global record labels like Universal Records, Sony Music and Warner Music Group used to sign contracts with music platforms like Apple Music and Spotify in favorable conditions because they are large suppliers. In contrast, independent record labels had to pay a higher commission. Therefore, as many as 800 indie record labels from 63 countries got together and founded a digital content agency called Merlin. As they joined forces, they were able to collect music content whose quantity is greater than that of the three major record labels. Armed with this advantage, Merlin came to sign contracts with music platforms in conditions more favorable than those of the major record labels. Korea had similar cases in the public sector: Zero Pay made and distributed by Seoul City and the public delivery app that is being developed by Gyeonggi Province. If we could gather together performing arts content in one place, small and medium-sized production companies could supply their content in favorable conditions and develop the content into a revenue model. On the other hand, platform owners could secure content with greater ease and stability. Furthermore, final users could comfortably enjoy diverse genres of performing arts content in their living room.

Recently, the Korean government and ruling party have amended the existing Framework Act on the Video Industry Promotion which had been focused on the country’s offline video industry. By doing so, they are pushing ahead with the enactment of the so-called “K-OTT Act,” in an attempt to foster the OTT industry in the field of online video content platforms. Under these circumstances, they are planning to establish an organization which is tentatively called the “Video Media Content Industry Promotion Committee”. This committee could serve a control tower for video content. Such a committee needs to provide institutional and legal support for commercial online performance platforms that have turned out to be unrivaled and impressive (e.g. Weverse from Big Hit Entertainment and BLC from SM and JYP) while the global performing arts scene doesn’t know what to do amid the pandemic. Meanwhile, for small and medium-sized production companies and artists that plan and produce a greater variety of art-oriented content, public institutions like KAMS should serve as a “trade platform” of public nature.

Conclusion

The Black Death, which spread throughout Europe in the 14th century, took the lives of a third of Europeans. Such a disaster triggered the collapse of the feudal economic system in the Middle Ages. Ironically, this led to the appearance of the new wealthy later on, which resulted in humanity’s most splendid era of the Renaissance. What lesson dose this past give us today? It is true that Covid-19 is a great disaster in the modern history of civilization. But life must go on. In restaurants, there must be delicious dessert. On stage, there must be a beautiful aria in an opera. On summer vacation, movie theaters must have people waiting in a long line to buy popcorn. I believe that we will return to these things we have taken for granted. Moreover, new game changers will appear in this post-pandemic era and the paradigm will shift to new talents. Such a change could be a golden opportunity for some people. Let me conclude with what Winston Churchill said. “Never waste a good crisis.”