全文中文版｜【蘭天律師專欄】舞台之後：表演藝術的著作權保護
Taiwan’s domestic performing arts scene has experienced significant growth in recent years. As creators and innovators explore diverse forms of performance, audiences are treated to a whole new world of experiences. Yet, the intricate legal relationships forged between theaters, performing groups, and actors through these varying art forms have given rise to increasingly complex collaboration and commercial arrangements. The increasing disputes highlight the urgent need to establish robust legal frameworks and recalibrate market dynamics to maintain harmony in the industry.
HUANG SHIU-LAN, February 4, 2023
Introduction
Taiwan’s domestic performing arts sector has made steady progress in recent years. Creators and innovators are actively engaged in various forms of performance, bringing unprecedented encounters to audiences. In light of the recent challenges posed by the pandemic, and with the goal of expanding access to audiences, performing groups and theaters have turned to technological advancements to further develop online performances and live streaming. By leveraging real-time filming and recording, they deliver content across network television, radio, and OTT platforms, creating unprecedented experiences.
However, the legal relationships shaped by the various forms of performing arts have led to increasingly complex models of collaboration and commercial terms between theaters, performing groups, and actors. The increasing disputes highlight the urgent need to establish robust legal frameworks and recalibrate market dynamics to maintain harmony in the industry.
This article will examine the protection of various works in performing arts programs, analyze the emergence of new copyrights stemming from technological advancements, and further investigate the licensing requirements for live streaming or replays on OTT platforms. Additionally, we’ll explore the commercial terms linked to licensing performance work and revenue sharing. The author aims to establish a collaborative model for sharing performance rights between performing groups and theaters, ultimately achieving the goal of equitable profit distribution.
Copyright of Performance Art
Performing groups create plays, musicals, dances, folk operas, Chinese crosstalk, operas, musical performances, puppet shows, and other creative programs, and what kind of copyrighted work do performing groups create with these programs?
First, let’s try to answer the question by examining what well-known domestic Taiwanese troupes have recently brought us at venues such as Taiwan’s National Theater & Concert Hall, National Taichung Theater, and National Kaohsiung Center for the Arts. We also include internationally renowned performance styles as examples to analyze different artworks.
1. Ownership of Dramatic / Oral and Literary / Performance Works.
What are the main types of works that appear in the stage play “Before Outdated 2.0” (愛在年老色衰前2.0)? The show was performed and produced by the famous Taiwanese troupe “4 CHAIRS THEATRE (四把椅子) “ at National Taichung Theater in July 2022[1], and Angie Wang (王安琪) is the playwright, director and actress of this play.
The literary copyright of the finished script belongs to the playwright, and the performance copyright belongs to the actors on stage. Meanwhile, this play was directed by art director Xu Zhe-Bing (許哲彬) together with Angie Wang, and is considered to be the co-creation of these two directors. Since the content of the play cannot be used separately, according to Article 8 of the Taiwan Copyright Act, the two directors jointly hold the copyright of the play they have directed. This means that the licensing of the play, including the licensing of live performance rights or video production rights for sale, is subject to the joint decision of the two directors. However, if the directors agree at the outset of their employment to assign their performance copyrights to the troupe, then the exercise of the rights and the use of the work are all within the troupe’s control.
Considering that it is rather difficult for other types of programs to exploit or transform dramatic and performance copyrights in a stage play, directors and actors usually assign the economic rights to the theater company for more complete exploitation, while the attribution rights conferred by moral rights remain with the directors and actors.
2. How to Distinguish the Copyright of Playwriting and Story-initiating?
“Before Outdated 2.0” is initiated by Jian Li-ying (簡莉穎), who is credited as a script editor. Can she and the playwright jointly hold copyrights in the oral and literary works? If she only provides the initial ideas, concept, style or dramatic direction of the work, which are abstract opinions and are not contained in tangible documentation such as a script, her contribution cannot be considered as “expression” protected by the Copyright Act; in this case, according to Article 10-1, she cannot share the oral and literary copyright with the playwright.
However, if the story initiator actually participates in the writing of the script and the initiator’s contribution is fixed in tangible documentation, then the script may be considered a joint work, and the story initiator may share oral and literary copyrights in the script with the playwright.
Sometimes it is difficult to draw the line between “story initiation / script development” and play writing, which often leads to disputes or controversy in the film and television industry. As the performing art industry gradually systematizes the work of script development and creation, different tasks should be defined at the beginning of the collaboration between the creators. Clearly defining roles and authorship is the best way to avoid unnecessary disputes and unfairness in the future.
3. Stage Design Belongs to Artistic Works
In the past, it was difficult to present complex and diverse stage sets, installations, and props due to physical limitations such as space and technical equipment. In Beijing Opera, actors only use a simple table and chairs to symbolize a few sets. In recent years, thanks to the improvement of theatrical facilities and the help of precise computer control, new models and devices often amaze us with new experiences of stage play.
A great example is the stage setting for the opera Madame Butterfly in Austria in 2022, which was performed on the origami-style lake stage at Bodensee (Lake Constance). The set is inspired by a Japanese scroll depicting a sea view. Together with the breathtaking lake scenery and excellent lighting and video effects, watching the show feels like stepping into a world of fantasy. [2].
Another example is Stan Lai’s (賴聲川) masterpiece “A Dream Like A Dream (如夢之夢)”. Since its premiere in Taiwan in 2005, the show has been performed continuously over the years and will return to Taiwan’s National Theater & Concert Hall in late 2022. Its innovative stage design not only includes eight directions and three levels, but also creates a wraparound stage that puts the audience at the center. A true one-of-a-kind in the theater industry [3].
The scenery, set, and costumes of a theatrical production are original artistic works protected by copyright. Therefore, if the stage production is copied or recorded, and its design or image is used in public in an unlawful manner, the plagiarists or users would be charged with violating the designer’s right to reproduce the artistic works.
4. Does Play Reading Require Authorization?
Recently, performing art groups have experimented with play readings as a rehearsal and preview before the official premiere. Actually, this is also a good way to attract audience participation, like the play reading musical “Three Sisters (勸世三姐妹)” by VMTheatre Company (躍演劇團) at the National Kaohsiung Center for the Arts (“Weiwuying Arts Center” 衛武營) on April 11, 2021, and “Lilith in Wonderland (Musical) – Stage Reading of Act One (台北莉莉絲 – 上半場讀劇音樂會)” arranged by Crimson Moon Production (赭月製作) at PLAYground (南村劇場) on November 25, 2022.
If the content of the play reading is an unfinished literary work, can it be legally protected? Since the actor reads the script and expresses his or her emotions, the specific manner and content of the recitation may constitute a performance work even though the movement or dance designed for the stage play is missing. Since play readings involve actors presenting the work through reading and singing, the performing groups would need a license from the copyright holder in the script/ literary works for public recitation, and the license from the actors for their performances. In addition, if music is used in the play reading musical, it is also necessary to obtain a license from the copyright owner of the song / musical works (lyrics and musical score) or sound recording for public performance.
Who Holds the Copyrights on Stage?
1. The Rights Enjoyed by the Performing Groups, Actors and Theaters
Who owns the copyrights to the images and videos of the stage play (including its animations, digital effects, projections, photographs) and related works such as the script, set design, and theatrical poster design? Is the owner the creator, the performing group, or the commissioning party /investor? To clarify the copyright ownership, it depends on whether there is an agreement reached over the ownership of the copyright between the troupe and the creator, or between the troupe and the commissioning party.
If there is an agreement between the two parties, such agreement shall decide the copyright ownership allocation; however, in the absence of such an agreement, the law generally presumes that the creative work is completed on a commission basis in the relationship between the troupe and the creator, or between the troupe and the commissioning party. According to Article 12 of the Copyright Act, the creator owns the copyright in the work, but the theater, troupe, or commissioning party may exploit the work within the scope of its funding purpose (e.g., stage production, performance, and distribution).
In 2022, the Con Bello Symphonic Band (狂美交響管樂團) performed soundtracks of Hayao Miyazaki’s animations. When it comes to deciding who is the artistic copyright holder of the concert poster design, we will need to look at the design contract between the performing group and the poster designer.
If both parties do not have an agreement regarding the copyright ownership, as per Article 12 of the Copyright Act, the creator, who is the poster designer in this case, shall own the artistic copyright in the poster design, while the commissioning party, i.e. the performing groups, still has the right to use the poster design for promotion through various media and social networking sites.
In order to secure the creation of a program or an invitation of performance, it is common practice for Taiwan’s theaters to have the performing groups enter into written agreements, where the performing groups own the dramatic works or performances copyrights, and the theater has the right to premiere the show. The pandemic has pushed many shows online, or theaters are providing the equipment and staff to record live shows and broadcast them for live streaming or uploading the video to theaters’ websites or YouTube for viewing. It did not take long for the theater to realize that they did not have public broadcast permission in the existing agreement and that the incomplete authorization would require signing an amendment [4].
Sample supplementary clauses for online broadcast authorizations are provided below:
Party A: Venue Operator
Party B: the Troupe
◆ broadcasting the recording of the program “XXX” (the “Recording”). Since the proposed broadcast event was canceled due to the COVID-19 pandemic, both parties agree to include the public transmission in the scope of the license by incorporating the Amendment into the Master Agreement.
◆ grants to Party A a non-exclusive license, with the right to sublicense to the third party, to publicly transmit the Recording in a non-commercial activity, subject to the terms and conditions regarding the period, territory and scope of the license set forth in Article X of the Master Agreement, and Party B does not limit the number of platforms to which the Recording is uploaded.
◆ shall enter into effect upon signature by both Parties, and shall be expired, terminated or rescinded upon the expiration, termination or rescission of the Master Agreement.◆ The Amendment is a part of the Master Agreement. Except as provided in this Amendment, all terms and conditions of the Master Agreement shall remain in full force and effect and shall serve as the basis for the rights and obligations of both parties.
If the theater plans to live stream or record the show for playback prior to the start of the show, the following clauses may be included in the license agreement:
Theatrical Production Agreement: Section X. Live stream right
Party A: The Commissioning Party/ Theater
Party B: The Performing Group
◆ Party A commissions Party B to produce a stage play entitled XXX, hereinafter referred to as the “PLAY”. The parties agree that Party B shall be the sole owner and author of the PLAY and shall enjoy the moral and economic rights thereto.
◆ The Parties agree that Party A shall have the right to premiere the PLAY on December 25, 2022 at the venue operated by Party A and to simultaneously live stream the PLAY.
◆ Party B agrees that Party A may make audio/video recordings during the premiere of the PLAY and publicly transmit such recordings on the xxxx audiovisual platform (link: xxxxxx ) operated by Party A for a period of 3 years from January 1, 2023.
◆ Party B shall obtain all rights, licenses or permissions from the playwright, background music composer, set / costume designer and actors to the extent that Party A may lawfully exercise its right in connection with the PLAY.
2. Copyright Allocation under Commission / Co-Production
The play “Before Outdated 2.0(愛在年老色衰前2.0)” is a cross-industry collaboration between a production studio and a performing group, as KoKo Entertainment (大慕可可) commissioned the troupe “4 CHAIRS THEATRE” to present and produce this work [5]. Another co-production example is the musical “The State & Denki (皇都電姬)”, which was launched by Our Theatre (阮劇團) and Theatre Space (劇場空間).
Are the copyrights to these works owned jointly or individually? Can the troupe or director develop the IP associated with the play and have the ability to grant a license to the third party to adapt the play into a musical / VR play / film / TV show? At the beginning of the collaboration, the troupe and the theater should reach an agreement over these issues and put them in writing.
If the dramatic copyrights belong to the commissioning party or the theater, the troupe
in charge of the theatrical production may not be able to exploit the script or the dramatic performance in any other way without the consent of the commissioning party. Even both parties are joint authors, only if the commissioning party licenses his or her share of ownership in the work does the troupe have the ability to offer the full license to others; in that case, the troupe should also share the royalties it receives with the commissioning party.
On the other hand, if the commissioning party owns complete dramatic copyright, it can usually develop its audiovisual IP works. Whether the troupe or director can claim rights to profits from audiovisual IP works depends on their contract.
In practice, there have been cases in which the performing group, under time pressure, started performing without having a written contract entered into with the commissioning party. Another situation may arise when the program design is so innovative that no specific contractual relationship between the parties can be established in advance. Only after the performance is completed, the cooperation model and the rights and obligations of all parties can be determined. And situation like this, signing the post-event contract should be done immediately to protect the rights of the creator, the troupe and the theater, and to allow the audience to watch the live stream performance or the replay of the stream online.
With the rise of innovative stage play or musical, in 2021, “Lunatic Town (神不在的小鎮)” was staged at Taiwan’s National Theater & Concert Hall (“NTCH”). The show combined the real space and virtual space, incorporated live stream and 5G technology, created an extended reality performance, and enhanced the audience’s interaction and immersive experience. In addition to the live show, it also presented viewers with a multidimensional world – including the 2D, 3D and 4D world[6].
In this example, all parties should not only determine the owners of the copyrights of the different dimensional world performances, but also decide who should be the author of the entire dramatic work – NTCH? The production studio? As the sole or joint author? In order to minimize future disputes over the exercise of rights or the development of IP, these terms should be clearly stated in writing even after the project has been delivered.
In 2016, 4 CHAIRS THEATRE (四把椅子) and Tainaner Ensemble (台南人劇團) co-produced the stage play “Zoo of Cards (刺殺！團團圓圓之通往權力之路)” [7]. In the co-production relationship, is the work of sole or joint authorship? Ideally, both parties should have a written agreement to determine authorship, which may be based on contribution and further exploitation.
If this dramatic work is to be developed into another application, such as a movie, and the troupe decides to license the rights to the movie studio to adapt the play, then a proper license for the adaptation should require the authorization of the script, acting, music, costumes, and set design. And a good question arises: Does the troupe have the right to share in the box office profits of this adaptation?
To answer this question, first of all, we understand that turning the stage play into a big screen version by the movie studio is an act of adaptation. And if the movie studio wants to use the script, acting, music, costumes and set design of the stage play, it needs to obtain a license from the troupe, and in return, the troupe can collect royalties or negotiates a profit sharing right with the movie studio.
3. Copyright for Co-authors
Very often the spirit of a play rests with the director, and the brilliant actors follow the director’s lead to bring the play to life. Sometimes the actor’s deep devotion to his or her role leads him or her to participate in the plot, and in that case, can the actor claim co-authorship to jointly own the copyrights?
In the past, this question usually remained in the back of the actors’ minds and was kept quiet, because at that time the actors were under the constraints of Chinese ethical concepts and mentor-student relationship. However, this “silence” caused many setbacks and disputes [8]. Today, each creator is gradually receiving the same respect and treatment, and people are beginning to lay eyes on the participation of actors in theatrical productions. For example, the stage play “Zoo of Cards (刺殺！團團圓圓之通往權力之路)” is considered a joint creation of the director and the actors [9]. Can the actors claim joint authorship of the literary work? Can they determine their share in the ownership of the script? Can the director of the troupe act on behalf of the actors to exercise literary copyrights of the script? Although unfamiliar to performing groups, these issues must be brought up for discussion.
A script is a “joint work” if it is created and completed by the joint writing or discussion of the director and actors, and its consistency and coherence make it very difficult to use with only a part of its contents independently. Assuming that the director and the actors are employees of the troupe, according to Article 11 of the Copyright Law, the economic rights of the literary work will belong to the troupe.
In another scenario, if the director and the actors are not the troupe’s employees, they could include their desired clauses in the contract, such as “the troupe shall enjoy the literary copyright in the script” or “the director and the actors shall jointly enjoy the literary copyright in the script”, and specify their share in the ownership of the copyright. According to Article 12 of the Copyright Act, in the absence of such a prior agreement, the creators, who are the director and the actors in this case, jointly enjoy the literary copyright in the script.
Because the copyright in a work of joint authorship belongs to more than one person, exercising the copyright requires the consent of all the joint owners, which results in a lengthy process. And when it comes to licensing, minor joint authors who disagree with the main opinion may hinder the completeness of the license and become a hurdle for the further exploitation of the script or play. Therefore, in order to ensure the smooth application of copyrights in the performing arts, the director of the troupe may, at the time of contract negotiation, act as a representative to exercise the literary copyright in the script or play pursuant to Paragraph 2 of Article 40-1 of the Copyright Act, where it is likely to promote the application and promotion of scripts and plays.
Copyright Licensing in the Performing Art
1. Interactive Works between the Creators and the Audience
At the 2022 Creative Expo Taiwan (“Expo Taiwan” 臺灣文博會), Shakespeare’s Wild Sisters Group (莎士比亞的妹妹們的劇團) produced a live interactive show “Grant Hotel of the Island (島嶼大飯店)”that audiences could experience through their screens while interacting one-on-one with the artists who played YouTube movies remotely [10]. Although the artists accepted only one audience member at a time to interact with them through the YouTube movies, the audience could book different time slots, meaning that the artists reaches an unspecified number of people, and their show is an act of public transmission. Their show is reliant on the reactions of the visitor-participants and the artists, and the content cannot be separated, so such creation is a joint work.
In this regard, if the artist wishes to use the interactive outcomes created with certain audience members in other uses, such as re-creation and display somewhere else in public, then the consent of certain audience members should be obtained. If the copyright of “Grant Hotel of the Island” is owned by Expo Taiwan, the permission of Expo Taiwan is also required.
The funder of the troupe “HORSE Dance Theater (驫舞劇場)” (“HORSE”), Su Wei-chia (蘇威嘉), a professional choreographer, performed “Swinging Years (自由步─搖擺歲月)” with nearly one hundred senior dancers at National Kaohsiung Center for the Arts (“Weiwuying Arts Center” 衛武營) on November 13, 2022. During the indoor performance, a live stream of interviews with passersby was projected onto the backdrop of the stage. For the interview, a release for the use of the interviewer’s likeness and content is required.
We understand that “Swinging Years” is a show invited by Weiwuying Arts Center, so if we want to know whether HORSE has the right to decide whether the recording of the co-dance can be provided to those amateur dancers for their preservation or uploading to their social media, we need to see who shot the co-dance video.
Suppose the live video was recorded by the arts center and there is an agreement with the performing group that the arts center owns the audiovisual copyright, when the arts center wants to make the video available to the amateur dancers, the performing group’s consent is required because the creative form, script and choreography are all the performing group’s works. On the other hand, if the performing group self-recorded their show, then they can enjoys the audiovisual copyright on such recording and use such materials (the sound recording, photos, videos) for profit.
2. Use of the Movie Name / Clips / Plots
Taiwan’s Studio M (瘋戲樂工作室) premiered its musical “Hollywood Taiwan (台灣有個好萊塢)” at Metropolitan Hall (城市舞台) in 2019, and also staged as repertory plays at Taipei Performing Arts Center (臺北表演藝術中心) in 2022. In honor of the classic 1964 Taiwanese movie “The No.1 Secret Agent (天字第一號)”, the musical creates a fictional movie “The No.0 Secret Agent” and re-imagines the classic Taiwanese movie clips with fictional plots and characters. Does such a performance require permission from the movie company?
Since “Hollywood Taiwan” includes the name and plot of the movie “The No.1 Secret Agent” and has some clips from this movie on stage using theater projections – do all of these uses require permission from the movie company?
The Cantonese plot in the musical “The State & Denki (皇都電姬)” references the plot of the 1986 Hong Kong classic “A Better Tomorrow (英雄本色)”and the leading actor’s name “Mark” (starring Chow Yun-fat 周潤發 ), and also projected the movies clips on the stage. The use of movie characters and plots in these musicals all raise special licensing concerns, which is an inevitable pre-production issue.
According to Article 9 of the Copyright Act, the terms and slogans are not protected, so there should be no need to obtain permission for the musicals to use the name of the film or the names of the characters. According to Article 10-1 of the Copyright Act, the ideas or concepts underlying the work are not protected, so there is no need for the troupe to obtain permission to use an element or concept similar to the plot of other movies.
However, if the troupe is adapting the specific story of the movie, then it is necessary to consider whether the movie’s script has entered the public domain due to expiration of copyright protection, or whether such adaptation can be considered the creation of a parody. If the answer is yes, no license is required, but if the answer is no, a proper adaptation license from the movie production company is required.
Regarding the movie clips used in the musical, again, if the audiovisual copyrights of the movie have entered the public domain due to the expiration of copyright protection, the use does not require a license. However, if the reel of the movie “The No.1 Secret Agent” has been digitally restored by the Taiwan Film and Audiovisual Institute (國家影視聽中心), then the restoration institution may enjoy the ownership of the digital file, in which case the use of the restoration file would require a proper license.
3. Stage Real-time Projection
Technological advances are driving significant changes in the creation of performing arts programs, for instance, we can see real-time projection on the stage play “Zoo of Cards (刺殺！團團圓圓之通往權力之路)”, the musical “Hollywood Taiwan (台灣有個好萊塢)” and “The State & Denki (皇都電姬).” This technique creates a rich visual experience by projecting an on-the-spot film onto the stage as part of the performance.
Real-time projection on stage is a reproduction of the performance, so it is necessary to secure the license of the person and property being filmed. The scope of the license should include the actor’s likeness, the performance copyright, the artistic, photographic and audiovisual copyrights of the set, the story dialogues and the literary copyright of the script.
4. Golden Horse Awards Logo and Theme Songs
In the plot of the play “Hollywood Taiwan “, there is a scene where an actor was awarded Golden Horse Awards;
One of the standout scenes in the musical “Hollywood Taiwan(台灣有個好萊塢)” is when a talented actor receives the prestigious “Golden Horse Award (金馬獎)”, an award known as the “Oscars of Asia,” and the award logo and theme music “The Moment(金馬奔騰)” were used on stage. While the name of the award is not copyright-protected, the image constitutes the artistic work. In fact, The Motion Picture Foundation, R.O.C. (財團法人中華民國電影事業發展基金會) had already registered the text and image of “Golden Horse Awards” for trademark rights in the field of film festivals, award events, entertainment sports and cultural activities, entertainment services and artist performance services. Therefore, the musical troupe must apply for permission to use the logo of the artistic work “Golden Horse Awards”.
In this case, because the text and logo of the award are not used as a trademark in the musical production, there is no need for a trademark license. On the other hand, to live perform the adapted version of “The Moment” requires the copyright to adapt and public perform the musical work. In fact, Taiwan’s Studio M (瘋戲樂工作室) had secured all the necessary legal licenses before the premiere, making their work perfectly legal.
5. Copyright Licensing Exceptions: Works in Public Domain & Fair Use
Despite the fast-expanding range of performing arts materials, artists should be aware of whether the license is required when incorporating clips from historical videos uploaded to YouTube, news and commercial videos (including music), Netflix movies, and TikTok videos into their creative content.
If the video used as the material content has entered the public domain due to expiration of copyright protection, then anyone is free to use the video without permission. But, if the artist is using these clips from Netflix movies or TikTok videos, a license from the copyright holder is usually required. Unless such use is within the reasonable scope of news reporting, commenting, teaching, research, or other lawful purposes (Article 52 of the Copyright Act), or meets the conditions of fair use under Article 65 of the Copyright Act, the artist may use the clips without any license and fee. Such use, however, must be attributed to the source.
延伸閱讀│《十三聲》展開七地巡演，「舞蹈蒲公英」全臺紮根：鄭宗龍談雲門舞集2021年計畫
Release on Online Streaming and Over-the-Top (OTT) Platforms
1. Licensing Items
In recent years, performing arts venues have worked eagerly to diversify their artistic approaches. Beyond the traditional physical stage, artists are crafting online performances by broadcasting live stage shows via television or live streaming. For example, in Sun Moon Lake Firework (日月潭花火節), the symphony orchestra “Philharmonia Moments Musicaux (樂興之時管絃樂團)” invited the singers to perform together. After securing all copyrights in the audiovisual works and sound recordings, the orchestra licensed the broadcasting rights of the works to television stations and digital audiovisual platforms.
Another example is that when the organizer of the New Year’s Eve Gala intends to record or film the contemporary dance performed by the art performing groups, the organizer must obtain the consent of the performing groups before recording the entire performance (sound, footage and photos) and proceeding with the broadcast. Both parties shall reach an agreement on the copyright ownership of the recordings or videos, such as determining the owner to be the organizer or the performing group. Assuming that the organizer enjoys the audiovisual copyright in the video, and the performing group shall seek the organizer’s permission before posting the video to the official website or YouTtube platform.
2. Live Streaming the Transnational Cooperation Dance “14”
“14”, a cross-border and live-streamed dance, is a pioneering program of HORSE Dance Theater (驫舞劇場). The program is commissioned by Singapore’s Theatres on the Bay and co-produced by Taiwan’s National Theater & Concert Hall. It was jointly designed by choreographer Chen Wu-kang (陳武康), visual director Sun Ruey-horng (孫瑞鴻) and stage director Wang Jia-ming (王嘉明).
Performances from different continents are included in the live stream, such as Singapore, Taiwan, Thailand, Italy and Indonesia. The dance marathon featured 19 dancers, each performing a 14-minute solo in an empty theater, and was streamed live across time zones and continents for a total of 5 hours. In addition, there was live commentary from guest commentators who provided insightful perspectives on the solos, enhancing the interaction with the audience. The production team for “14” set up a dedicated website so that viewers could access the live stream before the site was permanently closed after a month and a half [11].
Do Chen Wu-kang (陳武康), Sun Ruey-horng (孫瑞鴻) and Wang Jia-ming (王嘉明), the three who conceptualized the dance”14”, have the right to livestream the cross-continental program? What kind of copyright does this new kind of performance create, given that it is multi-national, multi-person, live streaming? This may take in-depth analysis.
When HORSE Dance Theater was commissioned by the theater to conduct this live-streamed cross-border dance commentary show, “14”, who should be involved as signatories to the contracts? And in these contracts, what license should be obtained? After the program ends, can the theater broadcast online the recording of “14”? What copyright clearance may be required in advance?
In the contractual structure between the parties involved in a multinational online program production, there should be “Co-production Agreement” between the co-production entities, “Commission/ Production Agreement” between the commissioning party and the production party, “Dance Performance Agreement” or “Commentary Service Agreement” between the producer and the creators (or dancers or commentators), and “Location Agreement” between the commissioning party or producer and the venue providers like theaters. Overall, having a contract that clarifies the rights and obligations of the parties and the ownership of the copyright in the program is the best way to protect everyone’s interests.
The entire contract structure should be centered on Singapore’s Theatres on the Bay and Taiwan’s National Theater & Concert Hall. Then, all the participating parties from different countries, including the theaters, dancers, dance commentators, directors, and information technology crew, should enter into their respective agreements so that the specific copyrights in choreographic works, performances, literary works, computer programs, and audiovisual works (including likeness) can be assigned or licensed to the commissioning party. The licensing terms should indicate territory, time period, media, forms or formats, scope and royalties. Such contractual arrangements are beneficial for the continued use of the entire program, including full-length replays of the program or the production and sale of audiovisual products.
The inefficiencies of individual licensing of rights are obvious when certain rights are held by one person or entity among dancers or theaters from different countries. In comparison, collective management of rights can usually result in greater economic value or full exploitation of the copyrights arising from the program, benefiting both the participating parties and the audience.
3. License to OTT Platforms
There have been disputes over an art program licensed to an OTT platform. In 2016, a troupe filmed its stage play and saved the video as an internal archive without releasing it to the public; then the dispute appeared in 2023 when this troupe prepared to license out this live video to an OTT platform. Does the troupe need to obtain the consent of the actors, musical theater composers, and playwrights so that the video can be legally offered on the OTT platform? The key issue is the fact that the parties only reached agreement over the live performance, not the internet broadcast.
To solve this problem, what the parties can do is to examine the relationships between the performing group, creators (actors, musical theater composers and playwrights) and OTT platform streaming service providers and their respective copyrights. Since the creators – actors, composers and playwrights – have devoted their creative content to the stage play, if there is no agreement between the performing group and the creators, or if their agreement does not specify the ownership to be vested in the performing group and the right of public broadcast was not included in the scope of license, the performing group must enter into a supplementary agreement with the creators so that the stage play video can be legally offered to the OTT platform with sufficient authorization.
This is a lesson for all theatrical crews. When they negotiate the licensing agreement with the actors, composers and playwrights, they should specify the terms and payment while taking into account the considerations for posting the filmed performance on the OTT platform.
Even though there is no specific distribution plan and no financial support at this early stage, the crew could also strike a deal over licensing. For example, the parties can agree that the share of royalties will not be given to the creators until the receipt of payment from the distributors, so copyright clearance requirements can be ensured in advance.
4. The Copyright Ownership of Live Performance Recordings
The global performing arts industry has taken measures to respond to the pandemic by shifting face-to-face performances to online, such as Taiwan’s Cloud Gate Dance Theater (雲門舞集) (“Cloud Gate”), which recorded its live performance “13 Tongues (十三聲)” in Chishang, Taitung in 2021.
As the recorder, Cloud Gate owns the audiovisual copyright in the live show video, while the choreographic copyright may belong to Cloud Gate or the choreographer Cheng Tsung-lung (鄭宗龍). Cloud Gate and the composer of the background music, Lim Giong (林強), may negotiate who would enjoy the musical copyright; and the author of the performance may be jointly owned by Cloud Gate and the co-performing singer, 9m88.
Tickets for “13 Tongues” were sold out immediately upon release, and then Cloud Gate decided to stream the show live on the KKtix Live platform. Ideally, this streaming would require the copyright holder to license the right of reproduction and public transmission; however, if streaming (public transmission) is not included in the copyright holder’s scope of licensing, then Cloud Gate needs to get additional authorization to obtain the complete licenses.
Provided that the theater has the permission of the performing group to record their live show, the edits and promotional video made by the theater would be considered an “adaptation”. As the author of the live recording, the theater’s adaptation on the audio/video recording or promotional video does not need a license from the performing group. Nevertheless, the promotional video may contain various kinds of copyrighted works and likenesses of the actors, meaning that posting the video on the official website constitutes an act of public transmission and the permission of the performing group, by law, must be obtained.
Music Licensing for Stage
1. Music Licensing for Public Performance
Music is an integral part of performing arts, and music-related works include musical works (lyrics and musical score), sound recordings, performances works and audiovisual works (music videos). Music-related copyright relationships, which can sometimes be complex, often exist between copyright owners (lyricists/arrangers/record companies) and the administrators (music agents, record companies, copyright collective management organizations).
Normally, in practice, few original songs made for musicals and other performing arts programs are administered by copyright collective management organizations. Therefore, seeking a public broadcast license to use musical original songs typically depends on the consent of composers or author of the music/ recording without going through a management organization.
Yet, if a musical includes live performance of a pop song, then it is necessary to secure the right of public performance for the musical work (lyrics and musical score) from MÜST (Music Copyright Society of Chinese Taipei). Or, if the pop song is played from a recording such as a CD or a digital file, then it is necessary to apply for the right of public performance of the sound recording from ARCO (Association of Recording Copyright Owners of Taiwan).
2. License for Public transmission via the Internet
When performing groups film their live musical performance and license their videos to the OTT platform, in addition to obtaining the synchronization license from the music agent, the performing groups need to contact the copyright collective management organization for the license and remuneration of the public transmission right.
It is a common practice for music agencies to let collective management organizations (e.g. MÜST / ARCO) have the exclusive right to manage the public transmission license for musical works/ sound recordings. And that’s why, when signing a music licensing agreement with the film studio, music agencies usually only grant the studio synchronization licenses for underscore use, as the license does not include public transmission.
And when performing groups plan to have their musical video (including the songs) publicly broadcast (on network television) and transmitted (on digital platforms), they need to obtain the broadcast and transmission license from copyright collective management organizations and pay royalties in return.
For live performances, the performing group and the theater may determine who is responsible for obtaining the public performance license and paying for remuneration. Then, if the theater and the performing group agree to license the right of public transmission and public presentation, an agreement that clearly defines the license is likely to result in a dispute-free future.
In 2021 Taiwan International Festival of Arts (TIFA), Taiwan’s National Theater & Concert Hall engaged Yang’s Ensemble (楊景翔演劇團) to produce the musical, “Love Song: Rhyme for you (我為你押韻情歌Revival)”. However, if the license from MÜST only allows the licensee, Yang’s Ensemble, to live perform the pop song in the theater, then Yang’s Ensemble needs to apply for the license from MÜST for public transmission when there is plan to post musical video on streaming platforms or the internet.
We can also analyze the live performance of soundtracks of Hayao Miyazaki’s animations by the Con Bello Symphonic Band (狂美交響管樂團). Movie soundtracks are musical works, and the musical copyright in the soundtracks may be owned by Studio Ghibli or the composer Joe Hisaishi. We understand that playing the soundtracks in this symphony concert is public performance of the musical works, video recording the live performance is an act of reproduction, and posting the live video on Youtue is public transmission – all of these uses require licenses from the copyright holders and administrators. Speaking of video, it is also necessary to have the orchestra musicians authorize the use of their performing works and likenesses because the video features all the band members.
Presenting the theatrical musical “Three Sisters (勸世三姐妹)” by VMTheatre Company (躍演劇團) on the internet and distributing the show in cinemas is another example, where the performing group needs to obtain the license to use the song (lyrics and musical score) named ”Miss You Everyday (天天想你)”. They may first apply for the right of public performance from the administrator MÜST, but if the composer and lyricist do not engage MÜST, the performing group will have to contract with the authors or the agencies for licensing. In the case of the use of the master recording, they may need to contact ARCO for the right of public performance. And, if the copyright holder of the recording does not engage ARCO, the performing group will have to contract with the record company.
Theaters are required to obtain the consent of the performing groups so they can use the part of audiovisual, recording, and photography content of musicals for promotional purposes. Typically, these two parties’ commission or co-production agreements would specify that the theater has the right to use audiovisual content to promote the program. Meanwhile, good agreements would also include clauses that provide for reasonable revenue sharing from the theater’s distribution of recordings or videos in the form of DVD sales, online streaming and network television.
License the Right to Adapt Dramatic Performance
In everyday practice, we commonly come across performing arts adaptations. For example, if a theater has translated the subtitles in the program of the international troupe, and our local troupe wants to use such translated subtitles, then it is necessary to obtain proper permission from the international troupe or the theater to use the original subtitles and the translation. In another scenario, if a performing group wishes to adapt a musical commissioned by a theater, in addition to obtaining a license from the playwright to use the script, the performing group must review its production agreement with the theater to determine whether independent consent from the theater is required.
If the agreement between the two parties states that the “dramatic copyright of the musical” belongs to the theater, the performing group must obtain permission from the theater to adapt the original musical into a new-version play that includes the content of the original musical.
However, if the new version of the play is completely different from the original musical and is considered a fresh, new creation, then no adaptation license is required. And of course, if the “dramatic copyright of the musical” belongs to the performing group, they can make any adaptation they want without the theater’s permission.
What about the original title and new title? Copyright law does not afford protection against the use of stage title, so it doesn’t matter if the new play keeps the original title or not. What matters is the content, meaning that the new play is considered a derivative work if it contains the content of the original play, and the dramatic copyright in the adaption belongs to the adaptor, the performing group. On the other hand, if there is nothing from the original play in the new play, then it is an entirely new creation, and the dramatic copyright belongs to the creator, the performing group.
Taiwan’s Godot Theatre Company (果陀劇場) produced a stage play called “Art,” which was an adaptation of the original script by French playwright Yasmina Reza. After its premiere in 2003, the success of the show led to two more national tours in 2016 and 2022, based on the second version of “Art”. In 2021, Dionysus Contemporary Theatre (神戲劇場), which is run by Hong Kong film actor Anthony Wong (黃秋生), translated the show and adapted it into a Hong Kong version musical called “2022 ART (ART呃),” which is considered a new work.
This Hong Kong theater may have to keep this in mind, if their “2022 ART” makes any reference to the Taiwanese musical “ART”, whether from the play or from the script, and if “2022 ART” includes the Taiwanese adapted parts where it is considered a new creation (compared to the original French script), then a license from “Art” is required.
For a Taiwanese performing group that adapts an international stage play into a Taiwanese version, with the effort to make the story more relevant to Taiwanese audiences, changes such as deleting paragraphs in the original play or translating, changing or substituting some idiomatic expressions must be clearly stated in the license agreement. The only compromise not related to the story adaptation is the translation adjustments – the licensee has the discretion.
When turning other works (novels, audiovisual works or international scripts) into a stage production, the performing group must secure the adaptation right. To avoid the risk of violating the original author’s moral rights in the future, in particular the right of integrity, if it is anticipated that the new script will make significant changes to the original work (e.g., changing the ending), the license agreement should include appropriate provisions allowing for such modification.
What about minor changes that do not substantially alter the original content, such as removing transitional scenes that are irrelevant to the main plot, using an idiomatic translation, or transforming a slang term? As long as these minor changes make the story more relatable to local viewers, remain within the context of the original play, and do not violate the author’s moral rights, it is not necessary to specify these adaptations in the license agreement.
The last example is “Afterimage for Tomorrow (留給未來的殘影)” . This is a dance performance presented by VR work, co-produced by film director Chen Sing-ing (陳芯宜) and choreographer Chou Shu-Yi (周書毅), and filmed with the latest digital technology. As of its premiere at the Kaohsiung Film Festival (高雄電影節) in 2018, this film was appearing on the big scream up to 2021, capturing a notable spotlight in the technology and art industry.
As we know, contemporary dance is a choreographic work, and thanks to advanced computer technology, the dance can be presented in 3D virtual reality, where the VR production is considered to be an audiovisual work. To make it clearer, this VR production is an adaptation of the dance, so it is a derivative work and is considered to be one of the IP developments of this choreographic work. And of course, every step of the licensing process must be handled with care and diligence.
Conclusion
In recent years, a growing trend has been reshaping Taiwan’s performing arts industry: the emergence of homegrown original plays, classic adaptations, and VR productions that incorporate new technologies and media. These IP developments and repertory plays or musicals, which have great commercial potential for performing groups and theaters, open the door to new business models. Meanwhile, given these complex licensing relationships, we also have observed all kinds of legal issues.
As cross-border collaborations surge in today’s world, the fusion of performing arts and technology fast-tracks the development of innovative works. This demands clear legal relationships and distribution of interests among performers, creators, and theaters. A well-crafted agreement can safeguard the parties’ rights and benefits, set for equitable revenue sharing, and ultimately paves the way for enhancing the value and longevity of the performing arts.
Footnote
[1] OPENTIX, 2022 NTT-FUN / “Before Outdated (愛在年老色衰前2.0)” Program Introduction.
[2] Izzie, Pang, Madame Butterfly Opera Unveiled at Bregenzer Festspiele, Featuring a Water Stage and Japanese Scroll Echoing the Plot, LaVie, 23 August 2022.
[3] To see the setting images, please visit OPENTIX: A Dream Like A Dream (如夢之夢).
[4] Huang, Shiu-lan, Class Note of Lecture “IP in Performing Arts” for National Taichung Theater, Lan & Law, 6 August 2021. Class Note of Lecture “IP on the Stage” for 4 CHAIRS THEATRE, Lan & Law, 21 December 2022.
[5] Qi Ling, To develop IP Investment in Film and TV Industry, Jian Li-ying (簡莉穎) Pitches New Stories for Stage Artists, Mirror Media, 1 June 2021.
[6] Chen Jun-yi, Interviewing Director of “Lunatic Town (神不在的小鎮)” Hong Wei-yao (洪唯堯) – How to Create the Coolest immersive VR Combining Games and Live-Streaming, BNext Media, 27 October 2021.
[7] Visit the official website of Tainaner Ensemble (台南人劇團).
[8] Zhao Jing-yu, Controversy over the Collective Creation of “A Dream Like A Dream (如夢之夢)”, Liberty Times Net, 11 December 2012.
[9] Huang Qian-qian, Play “Zoo of Cards (刺殺！團團圓圓之通往權力之路)” Invites “House of Cards” Fans to Find Easter eggs, China Times, 20 March 2016.
[10] Hung Ya-yun, Delve into Expo Taiwan: Around-Island Playfield, Grant Hotel of the Island and Ice Wonderland, Shopping Design, 5 August 2022.
[11] National Taichung Theater, Across-border Live Streaming “14”, 18 September 2021.
黃秀蘭（Huang Shiu-Lan）( 12篇 )翰廷法律事務所主持律師，文創產業法律實務經驗豐富，擔任國家影視聽中心、創意設計／音樂／編劇／影像製作公司、唱片集團、知名導演長年法律顧問及文化部影視產業專業顧問。任教於國立臺北藝術大學及國立臺南藝術大學，講授【智慧財產權與合約談判】課程，出版《如何面對合約》系列法律著作，演講教學寫作不輟。