Copyright for Divas

UPDATE 201009121338:

In the comments, In The Know says the set design images which George Avory was referring to were copied from the Royal Opera House’s “Friends” magazine (i.e. he’s not talking about images taken by Intermezzo).

If that’s the case, copying them was straight infringement of the ROH’s copyright (or the copyright of their photographer) in the images themselves; Avory’s reference to the set designs is a red herring, since it was the copying from the Friend’s magazine, not the fact the copied images were of set designs, that was relevant.

UPDATE 201009102122:

As Urbsmanchester notes in the comments, the Royal Opera House has now issued a press release about this issue.

The organisation – and I’m guessing in particular its Comms Team – deserve full credit for having recognised how badly this had been handled, and appreciating the value of a swift and public apology. And notice – no compromise of their position on enforcing their copyrights. Even as they announce their apology, they reiterate their commitment to defending artist rights.

Reading the comments on Intermezzo’s blog, it’s interesting to note how many “Friends” of the Royal Opera House – subscription paying supporters – apparently took the time to contact the organisation direct to express their disapproval of its actions. It’s a reminder that in a social media age, a reasoned customer complaint still goes a long way.

ORIGINAL POST:

I continue to be amused by the way the intersection of “law”, “websites”, and “executives” can cause such carnage. This is not new; see here, here, and here, among others.

We can now add the Royal Opera House’s Head of Business and Legal Affairs, and his attempts to get the Intermezzo blog to remove photographs he claimed infringed the copyright of the Royal Opera House.

For some of the images, this appears likely to be true – Intermezzo admits that they were images taken for the ROH, apparently to be used for press. But other images were apparently taken by Intermezzo at curtain calls, and George Avory’s e-mails (as published by Intermezzo) do not make any distinction between them:

In reply, remove the three images of the set designs of ADRIANA LECOUVREUR and TANNHAUSER.

Remove all images referenced to performances at the Royal Opera House. An indicative but not exhaustive list of Royal Opera Hose (sic) images are located on your website at:
…
May I remind you that you do not the right to reproduce or distribute any Royal Opera House copyrighted work including any images taken within the Royal Opera House.

Legalities aside – we’ll return to them in a moment – Mr. Avory has clearly not learned from the selfless example set by Tangent Labs. Actually, Avory’s behaviour is even stupider: where Tangent was lashing out at a critic of their work, Intermezzo is a vocal supporter of the ROH.

How difficult would it have been to send a polite e-mail to Intermezzo, pointing out that the ROH had or asserted copyright in the photographs, and asking that no more be posted? Or to ask that future posts be illustrated using approved press imagery?

But back to legalities. There a limited number of ways that the ROH could claim that Intermezzo’s own photographs infringed their copyright.

One obvious way is to assert that the copyright in those photographs belongs to (had been assigned to) the ROH. You might put a provision to that effect in the terms and conditions on which tickets are sold, to add teeth to a provision which prohibited photography. The ROH didn’t; their terms simply say:

9. The use of cameras and recording equipment is strictly forbidden.

On the face of it, Intermezzo does seem to have breached this term by taking photographs, but that doesn’t automatically mean that the images belong to the ROH (such that posting them would infringe ROH’s copyright). ROH would have to sue Intermezzo for breach of contract, which is not what George Avory is suggesting.

It’s difficult to see how else to take his claim “…any images taken within the Royal Opera House…” are “Royal Opera House copyrighted work[s]”. You certainly don’t get copyright just because you happen to own the land on which photographs are taken, and although there can be copyright on building (more on that shortly) it doesn’t mean any photograph taken inside a building becomes the property of the architect – much less the owner of the building.

Another possibility is that the photographs are said to infringe some performance right. Performers have the exclusive right to permit the recording of their performances, and their contracts with production companies normally assign those rights. If Intermezzo had been taking photographs of a performance at the ROH, you can see a clear argument that ROH had a case. But can ROH really argue that the curtain call constituted a performance, such that taking photographs was an infringement? It’s a novel argument, but I can’t see how it would stand up.

Avory himself makes reference to “..three images of the set designs of ADRIANA LECOUVREUR and TANNHAUSER.” These are only a sub-set of the images he demands be removed, but they do present a distinct issue: photographic reproduction of copyright works (and sets could be artistic copyright works in their own right) can constitute infringement.

If these were ROH’s own images (which Intermezzo was using without permission) this would be an entirely secondary issue and hardly worth considering. If these are Intemezzo’s photographs, however, it might be one way in which you can assert copyright infringement, even though you don’t own the images. I’m not sure incidental inclusion of bits of the set design in a photograph of people is going to amount to infringement of the copyright in the set design. If it did, you couldn’t photograph people in the street – the incidental inclusion of street signs would be a copyright infringement.

There can be copyright in buildings (well, in their design). The article in The Lawyer referred to photographs of the buildings, and in the comments there was some discussion of whether Avory could be seeking to rely on building copyright. From his e-mails, it does seem he’s acting in the belief that the fact the photographs were taken inside the building gives the ROH rights, rather than asserting copyright based on the fact the building may feature in them.

As one commenter noted at The Lawyer, The Lawyer is illustrating its article with a picture of the ROH’s building; presumably, if my reading of his e-mails is wrong, George Avory will be in touch with them shortly.

All told, I struggle to see how anybody would think there was an arguable case of copyright infringement here. Breach of contract – as noted above – is a possibility, but there’s nothing in the published correspondence to support such a broad ranging assertion of copyright, and claim of infringement.

Against that backdrop, perhaps it’s not surprising that I can find no trace of George Avory in the Law Society’s solicitor search or the Bar Directory.

And then there’s this. (ht Samuel) It seems that the people operating the ROH’s Twitter account are quite keen to receive photographs visitors have taken inside the ROH; presumably so they can demand the copyright, Mr. Avory?

So, to sum up: executive at large organisation takes umbrance at blogger; launches ill-advised and poorly thought out legal threat; inevitable happens.

In concluding an earlier post, I said:

Legal threats: leave them to the lawyers. We’ll tell you when they’re a bad idea.

It’s still the best free legal advice you’ll get.

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