Shakespeare Electronic Conference, Vol. 4, No. 405.  Wednesday, 30 June 1993.
From:           Cynthia L. Wimmer <This email address is being protected from spambots. You need JavaScript enabled to view it.>
Date:           Wednesday, 30 Jun 93 11:14 EDT
Subject:        Proposal for Fair Use
Because I've sent the following memo and proposal to several lists and to some
individuals by surface mail, some of you will receive duplicates, and I
apologize for any inconvenience that duplication causes.  Please feel free to
share these with anyone you feel will be interested and to invite them to join
those who will be writing in support of the proposal.
Thank you for your attention and support.  Cynthia
June 30, 1993
Memo to:  Scholars and Teachers of Theatre, Performance, and
          Dramatic Literature
From:     Cynthia Wimmer, English Department, University of
          Maryland at College Park
Re:       Proposal to Actor's Equity Association for fair use of
          archival video tapes
The attached proposal will be mailed on July 1, 1993.
In my contacts with Nancy Donahoe of Actor's Equity, she has indicated that
with the recent move to allow artists who appear on television talk shows to
present video segments of their performances, the union seems to be moving in
the direction of allowing greater, though still limited, circulation of these
simulations of productions.  This proposal emerges from my discussions with
Nancy and from my own work as a scholar and teacher of dramatic scripts and
performance analysis.
Actor's Equity will be far more likely to consider modifying their policies
regarding duplication of archival videos if many scholars and teachers write
letters in support of this proposal.  Some members of the larger academic
community, such as Richard Schechner and Jackson Bryer, have already pledged to
write letters of support;  others, such as John Fuegi, are going to draft their
own arguments to persuade Actor's Equity to modify their contracts with holding
Our sense is that if Actor's Equity agrees to allow limited duplication, the
five other unions who currently have similar prohibitions on duplication
(International Alliance of Theatrical Stage Employees, United Scenic Artists,
American Federation of Musicians, Society of Stage Directors and
Choreographers, and Dramatists Guild) will follow Equity's lead and agree to
modification of their contracts.
Please read this proposal and consider writing in support of some modification
of the Actor's Equity contracts with holding institutions.  Please mail letters
of support after July 2, 1993.
Thank you.
July 1, 1993
Mr. Conard Fowkes
Pay-T.V. Committee
Actor's Equity Association
165 West 46th Street
New York, New York 10036
Re:  Proposal for fair use of archival video tapes
Dear Mr. Fowkes,
This letter requests that Actor's Equity allow theatre scholars and teachers
nonprofit fair use of segments of archival video tapes in order that we might
better train students in awareness and appreciation of live theatre and thereby
assist more fully in building a broader economic base of support for theatrical
productions by building theatre audiences.
Currently, duplication of any portions of archival tapes is prohibited by the
contracts between six unions and various holding institutions:  the Research
Library of the Lincoln Center Branch of the New York Public Library, the Martin
Luther King Memorial Library in Washington, D.C., the San Francisco Performing
Arts Library and Museum, and theatres which are members of LORT. The contracts
stipulate that the videos be viewed only at the holding institutions, that they
not be duplicated, and that they are used for scholarship only.  Of course, the
contracts were formulated so that the work of artists would be protected, and
certainly all of us who work in any capacity in this field agree that policies
are necessary to safeguard theatre artists being paid for their work.
However, the restrictive way in which these goals are reflected in the current
contracts is not in the best interest of the artists such policies are designed
to benefit.  Those of us who research and teach in this area stimulate the
interest and appreciation of people who ultimately support theatre and its
artists.  Rather than depriving artists of income for their work, through our
scholarship and teaching we seek to expand the segment of society that
regularly and devotedly supports their work by buying tickets and donating
funds.  From the students we teach we often create audience members.
Though the contracts allow the videos to be viewed for scholarly purposes, the
primary purpose of scholarship is preparation for teaching, and it is this link
between what teachers are permitted to see and what we can show our students
that the contracts fail to take into account.  We need your help to kindle more
students' excitement for theatre, to cultivate their taste for theatre, and to
teach them the wonder of live performance.  Video segments can provide a much
needed instructional bridge between scripts and live performance.  We need to
teach students the visual and aural literacy to engage more fully with
performance.  By viewing films, students are trained to allow the eye of the
camera, the film editor, and the film director to determine their selection of
focus.  In contrast, through presenting selected portions of these archival
videos of stage productions, teachers would be able to develop our students'
performance literacy as they view an entire stage, to point out choices and
interpretations while stage action is occurring, to encourage them to make
sense of what they are seeing and to see themselves as potentially interactive
participants with live performers, rather than as passive hearers and watchers
of a cinematic production unable to be affected by their presence. We simply
cannot communicate these ideas and allow for questions and discussion in a
theatre during a performance. We need the latitude to move our scholarship and
our teaching into the technological expanses now available to prepare our
students better for the experiences of live theatre.
Because of the restrictions on our use of archival videos, theatre educators
have been denied the basic pedagogical technique used in related fields.  The
fair use practices developed throughout the past century have given all those
who teach other art forms an advantage those of us who teach dramatic
literature, theatre, and performance have not had:  the ability to bring
simulations of the particular art works being studied into the classroom.
Scholar-teachers of written texts can cite passages from copyrighted works and
discuss them with their students;  those studying film can readily obtain and
show their primary texts to auditors;  art historians can procure permission to
reproduce pictures of their subjects to include in their scholarship and
teaching, as can those examining architecture. Videos which simulate the
primary material of theatre exist, but we are unable to make fair use of them
because of these contracts.
Both the current contracts and our national copyright laws manifest the same
desire to protect artists' work and livelihood. According to the Copyright Act
of 1909, these archival tapes are considered "unpublished" because limited
distributions are not generally held to constitute publication.  Unpublished
works enjoy common law protection, rather than copyright protection, because
they are generally assumed not to have been released for public criticism or
comment;  however, these archival tapes record public events which are
regularly available for analysis and scholarly and educational purposes and are
thus public and analogous to copyrighted material, material which falls under
legal fair use provisions.
The fair use provision (United States Code, title 17, section 107) allows
scholars and educators to quote or reproduce small portions of copyrighted
works in various media without obtaining permission of the copyright holder.
Circular 21 from the Copyright Office, Library of Congress, describes these
     [T]he fair use of a copyrighted work, including such use by
     reproduction in copies of phonorecords or by any other means
     specified by that section, for purposes such as criticism,
     comment, news reporting, teaching (including multiple copies
     for classroom use), scholarship, or research, is not an
     infringement of copyright.  In determining whether the use
     made of a work in any particular case is a fair use the
     factors to be considered shall include--
          (1) the purpose and character of the use, including
     whether such use is of a commercial nature or is for
     nonprofit educational purposes;
          (2) the nature of the copyrighted work;
          (3) the amount and substantiality of the portion used
     in relation to the copyrighted work as a whole; and
          (4) the effect of the use upon the potential market for
     or value of the copyrighted work.
The duplication and use of short segments of these archival videos for the
limited and nonprofit purposes of "teaching," "criticism," "scholarship," or
"research" would be specifically constituted as fair use were these videos
copyrighted.  Precedent for public showings of video segments of plays has
already been set.  Video recorded portions of live plays may be shown during
television reviews of plays and now for actors' appearances on talk shows.
Although such airings promote individual plays and artists, they do not do as
much as in-depth education can to build theatre audiences in general.
This letter proposes that addenda to the existing contracts which parallels
fair use provisions be drawn.  Such addenda would permit duplication of
segments of archival tapes, with stipulations on the number of segments per
performance (perhaps two or three for a full-length play), or the duration of
segments (perhaps ten minutes), or the percent (perhaps five percent) permitted
to be duplicated.  The addenda should additionally stipulate that the work of
the artists be properly credited and precisely what form that documentation
must take and what information it must include.
A thriving theatre industry is what all of us who love this art form seek to
perpetuate.  Permitting fair use of archival videos will benefit not only
teachers and students, but all theatre artists.  Thank you for your
consideration and prompt attention to this proposal.
Cynthia L. WIMMER
Email:This email address is being protected from spambots. You need JavaScript enabled to view it.

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