by Brian Taylor Goldstein

I was speaking to members of an ensemble the other day who assured me they didn't need to worry about licensing any of the music clips or videos on their website unless they charged a fee for people to listen to or watch them, or otherwise earned money from them. Rather, as they were using them only to promote performances and encourage people to buy tickets, the ensemble contended that this was a "non-commercial" use. This is, in fact, a common belief. Unfortunately, it's also among the most common misconceptions.

The truth is that any time you are using someone else's image, photograph, music, design, words or performance to sell or promote a service, it's a "commercial" use - even if you do not earn a direct fee.

Think of it this way: If, unbeknownst to you, a dentist found a photograph of your smiling self on Facebook and used it on a billboard to advertise his or her dental services, you'd probably be pretty upset. Would it make a difference to you that he was not actually selling the photograph? Probably not. He would still be using your face to sell his dental services.

Placing materials on your website operates just like placing them on your billboard. You need permission to use someone else's image, performance or copyrighted material to promote or "sell" your own services. And, like all other laws, regulations and statutes, this also applies to tax exempt 501(c) organizations.

Selling tickets to a classical concert or a cultural event is just as "commercial" as selling tickets to a rock concert or a Broadway show. Selling is selling. So, what would constitute a "non-commercial use?" You guessed it: something that doesn't promote or advertise a product or service to the general public-like showing a video of your performance to your Grandmother during her next visit. In other words, if you don't put it on your website, post it on the Internet or otherwise use it to help you sell tickets, it's probably a non-commercial use.

Join APAP and FTM Arts Law for a digital rights webinar on May 17, 2012 when Robyn Guilliams and I will be discussing some of the most common challenges in using materials on the Internet. Register for this webinar and submit questions ahead of time to info@artspresenters.org.

For additional information and resources on this and other legal and business issues for the performing arts, visit ftmartslaw-pc.com.

THE OFFICIAL DISCLAIMER:
THIS IS NOT LEGAL ADVICE!

The purpose of this blog post is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit or doing anything rash!