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Legal Eagle

Copyright

Q: Pictures by Joe Public

At the debut of my new play in Dublin, a man was seen filming the entire performance. Of course, flash photography is banned in the theatre but he was using a camcorder which does not cause the same disturbance. This is surely a breach of copyright, not to mention the rights of everyone else involved, but what can be done to stop it?

A: Yes, it is a breach of copyright, and possibly a very serious one. The matter is governed by the Copyright, Designs and Patents Act 1988 where under a performer's rights are infringed by a person, who without his consent makes, otherwise than for his private and domestic use, a recording of the whole or any substantial part of a performance such as you describe. Furthermore, any filming of the performance will be an infringement of the author's copyright in the play itself since one of the acts protected by copyright is the copying of the work in any material form, even if only indirectly, for example, by making a film of it.

Copyright in a dramatic work includes the right to perform it and therefore filming a performance by making a record of it on film is the same as copying the performance itself. Consequently, both the author and the performers will or may, have an action for damages for breach of copyright and an injunction against the photographer.

There may be a separate cause of action if, at the same time, the photographer was making a sound recording of the performance. If it was being done with the permission of the theatre management, the latter will also be liable for allowing the breach of copyright on its premises, which is why theatre managers usually prohibit photography of any kind.

All this, however, is subject to a number of exceptions laid down in the Act which are expressly permitted, notwithstanding that they would otherwise constitute a breach of copyright. These exceptions are too numerous and complex to list here but they include, for example, exceptions relating to fair dealing for the purposes of research or private study, or for the purpose of criticism or review or education, libraries or archiving.

Furthermore, as indicated above, filming a performance for private and domestic use would not be a breach of performers' rights as distinct from those of the author.

Nevertheless, even if any of these exceptions were to apply, prohibition against photography may have been a condition of admission to the theatre (for example, if printed on the back- of the theatre ticket or on a prominently displayed notice board in the foyer), in which case the theatre management would be entitled to have the offender escorted from the premises. Removing the film from his camcorder may not be legally permissible without a court order, but in practice would be unlikely to result in adverse consequences. If breach of copyright is established, the court would have power to order delivery up of the offending material, i.e. the film in this case.

If it could be established that the film was being made for business purposes this would not only give rise to a separate civil cause of action but would be a statutory offence under the Act and any criminal court having to consider such an offence would also have the power to order that the infringing film be delivered up to the copyright owner or such other person as the court may direct.

First published September 1997