In this episode of the Power of Pro Bono podcast, UC Berkeley Law students and Arts & Innovation Representation (AIR) members Kalyn Adiekweh, Rainy Ren, and Shen-Min Chen explore the ramifications of COVID in the world of live theatre. With the help of guest Doug Nevin, theatrical producer and founder of the Nevin Law Group, the students dive into legal issues and the evolution of the live performance industry in this post-COVID world.
Episode Transcript
Stephanie (00:08):
Hello, and welcome to AIRwaves.
Ross (00:10):
AIRwaves is the result of a collaboration between Berkeley Law student-led Pro Bono Program and California Lawyers for the Arts.
Stephanie (00:17):
We are the leaders of this project. My name is Stephanie.
Ross (00:20):
My name is Ross.
Stephanie (00:22):
This is a platform where we pursue the most intriguing, pressing, and cutting-edge topics at the intersection of arts and the law. You’ll hear conversations between Berkeley Law students and attorneys, experts, and more.
Ross (00:32):
The contents of these conversations are not intended to be treated as legal advice, and have been reviewed and approved by California Lawyers for the Arts.
Kalyn (00:48):
All right. Hello, everyone. So my name is Kalyn Adiekweh.
Rainy (00:51):
I am Rainy.
Shen-Min (00:54):
I am Shen-Min.
Kalyn (00:55):
All right, and let’s get started. So the world was put on pause back in 2020 when the COVID-19 pandemic struck various communities throughout the world. As a result, everything shut down from our favorite restaurants to the school systems. Even Broadway productions had to figure out what to do. People had to learn of new ways to access these facilities such as ready-made restaurant to-go orders, Zoom school, and a new way of performing through live streaming. Digitizing shows may not be an entirely new concept, but has definitely become more prevalent since the start of the pandemic. After having to cancel shows, many performing art studios began broadcasting screenplays and musicals through platforms such as BroadwayHD, YouTube, Facebook Live, and Instagram Live in order to follow the COVID-19 safety regulations and keep their fans entertained and satisfied with content. But how did this new idea of live performances impact the legal realm of the performing arts industry?
Kalyn (01:52):
As social media is a very popular means of easily distributing content, issues of copyright infringement surfaced as a result of recording being harder to regulate in addition to the unlawful distribution of content and the increasing difficulties of obtaining licensing. In this podcast, we’re going to be discussing a wide range of facets that impeded the theater industry amidst the pandemic. We will be talking about the production of such shows and the change of business models, the distribution of that content on online streaming platforms, and topics dealing with securing copyrights, licenses, and distribution risks. With that, I’d like to introduce our guest speaker, who I’m very excited to hear from, Doug Nevin. He is an award-winning producer, twice nominated for a Tony Award, and recognized nationally as a lawyer. Hi, Doug. How are you?
Doug Nevin (02:41):
I’m doing well. How are you?
Kalyn (02:42):
I’m doing good. Thank you for asking. So we’re going to ask you a few questions on your experience within the industry during the pandemic. Is that okay?
Doug Nevin (02:49):
Absolutely.
Kalyn (02:50):
Alrighty. So let’s start with the first one. So simply tell us about yourself, the kind of work that you do, and how you got started in the industry.
Doug Nevin (03:00):
So I run a law firm based in New York, the Nevin Law Group, and we are a boutique entertainment firm servicing primarily the theater industry, Broadway, off-Broadway, touring, and also, around the world.
Kalyn (03:17):
Nice, nice. So we know that there are some positives of digitizing Broadway shows, for example, expanding fan base, but there are also negatives. So can you talk briefly about how COVID-19 has negatively impacted the business whether from the legal or production perspective and the work of your clients? If there are any positives you’d like to note, please feel free to share.
Doug Nevin (03:38):
Yeah. I mean, obviously, I think it goes without saying that the pandemic and the government-regulated shutdowns that resulted from the emergence of the pandemic, obviously, forced a pretty much total shutdown of the theater industry throughout the United States and really pretty much throughout the world with some limited exceptions. So you had a robust billion dollar tourist industry that essentially went to sleep effectively overnight, and that impacted not only all the artists, and creatives, and crew members, and support positions, anybody who makes their living tangentially from the live performing arts, but also, it really impacted cities, and hotels, and restaurants, and businesses in the areas.
Doug Nevin (04:41):
Broadway, for example, is really the largest tourism driver in the city and the state of New York and nationally even. So the total pause, obviously, had huge economic ripples throughout the community and throughout the world. It did require pivoting, I think, to some degree of not necessarily moving live productions online, but in creating digital performances or streaming performances, performances from home, et cetera. This also timed, I think, with two other emerging developments.
Doug Nevin (05:33):
One is live performance that is in fact digitally transmitted at the same time that it is being performed live from a performance space, and that is something that I think will… We’ll probably continue to see a bit of that. But then, also, the distribution of professionally captured live captures of major productions, and some of that… A lot of the captures that actually were distributed during the shutdown were not… None of them were filmed during the shutdown except for one or two, Come From Away and Diana. But when you look at Hamilton on Disney+ or What the Constitution Means to Me on Amazon, those were actually filmed prior.
Doug Nevin (06:21):
I do believe that in the case of Hamilton, part of the decision that was made to distribute it on the Disney+ platform was because people were at home and because the initial audio-visual release further out didn’t make as much sense when you could provide this content into people’s homes. But I think it’s just important to note the distinction between what is content created for the digital marketplace only, which is a lot of what we saw during the pandemic with pieces like Ratatouille: The Musical, for example, versus a digital add-on. So subscription houses perhaps providing that in addition to being able to purchase a ticket to go and to view a performance live in the theater, but to also log in from home, which is something that I think will probably continue in some way. Then, the third is the professionally captured live captures of the Hamilton, Constitution, Come From Away.
Kalyn (07:33):
Yeah. That’s definitely a good point. That was something I was thinking about, how Hamilton was put on Disney+. It definitely allowed a larger fan base, and I think that that’s something that will continue post-COVID-19 pandemic that people will start to do that to continue expanding because I never heard about Hamilton before and was able to see that on Disney+, and that was something I was very interested in. So I’m also aware that not everyone was completely ready to embrace digitizing shows since it’s a common belief in theater that theater is meant for the stage and the stage only. So since the pandemic started, what’s a ballpark estimate of the number of shows you’ve experienced going online, and of those experiences, how did that work out? What can you recall from those times?
Doug Nevin (08:24):
Yeah. I mean, I don’t know that I could really give a ballpark estimate of the number of digital events that happened, and again, I think that there is a big difference between the distribution on a major platform of a professionally captured live performance versus what was… a lot of digital theater, right, which was created for theaters and artists to stay engaged, and earn some money, and keep their sanity during the pandemic. Often, those were done as benefits, as fundraisers, et cetera. But I think that there were some seminal moments during that era. Probably Ratatouille: The TikTok Musical, which aired on January 1st of 2021 I think was probably one of the major digital theater events. There were also benefits of various plays. Terrence McNally’s Lips Together, Teeth Apart was done as a benefit. Michael Urie revisited Buyer and Seller as a benefit for Broadway Cares/Equity Fights AIDS from his apartment. Things like that. Those events I think were a combination of creative need, but I think also providing a service, bringing theater and art into people’s homes at a time that they couldn’t come to the theater.
Kalyn (10:03):
Right. Thank you so much. So, before the pandemic, have you ever worked with any streaming platforms, had any expertise in it, and what experiences can you share once COVID struck on how that affected your business? How did you guys start to shift into those streaming platforms?
Doug Nevin (10:22):
So, no. So that’s an interesting question. So we had experience with the professionally captured live captures. Our firm was production council on What the Constitution Means to Me, both on Broadway and on tour. So when the Broadway production of Constitution was being captured and would ultimately be distributed on Amazon, we were able to advise our producer clients on that transaction. So that was the kind of transaction that we were familiar with. The notion of creating something purely digitally like the Ratatouille: The TikTok Musical, that was, at least in my experience, born of the pandemic, right, because theater is, by its very definition, performed live in front of an audience in a communal environment, right, where the audience and casts are in the same place at the same time, and the audience is in some ways a character in the story. So that’s different when you’re streaming something digitally and the audience is not there.
Kalyn (11:29):
Right. I completely understand everything you’re saying. So one of my final questions before I turn it over to my partner here is one thing the pandemic gave us was realizing how valuable technology is and how much we can accomplish with it. So as we go move forward, how do you anticipate business going post the COVID-19 era? With the reopening of theaters, how do you see online streaming of shows going in the near future? I know we tackled this a little bit before, but do you have any further insight into that?
Doug Nevin (12:00):
Yeah. I mean, my sense is that we outlined those three things, right? Digital-only events, digital or streaming availability as an add-on or supplemental means of viewing a project, and third, professionally captured live captures. My sense, and in some ways, candidly like… and this is my own personal view. My hope is that the first of those three models disappears as much as possible. I think that an entirely digital performance where people are performing, sitting in their closets, in their kitchens, in their… wherever they have good sound in their apartment and reading a role at a screen while other people sit and watch in their homes, that obviously is not theater in the traditional sense. So I would hope that now that it’s safe to be back in the theater, and it’s safe to congregate, and it’s safe to perform and collaborate that we hopefully won’t have to continue with that era of pandemic theater.
Doug Nevin (13:15):
I think the second notion, which is making a live performance available digitally in addition to in-person attendance, I think that that is interesting. Right? so there are theaters, including Berkeley Rep, where you all are in Berkeley, which does offer, I gather, or has been offering, and other theaters are doing this as well, the opportunity to purchase a ticket, but to screen the performance at home from the comfort of your own home. Second Stage recently did this with the final two weeks of performances of Clyde’s now, which is a play on Broadway. I do think that that’s important because that allows for accessibility. It allows for people to see things even if they are not physically in the city where it’s being performed. It can provide another income stream for authors within reason. So I think that that is important, and I think that that can be an interesting tool and an exciting supplemental tool.
Doug Nevin (14:22):
Then, I think in terms of professionally captured performances, I think that that candidly isn’t new. That is something that’s been happening for years and years. I think that much of my generation of theater-makers grew up watching the great performances recordings of the Stephen Sondheim musicals: Into the Woods, Sunday in the Park with George, Passion. So that’s actually not really new, and I do think the existence of so many different platforms, and the ability, and therefore, the need for content on those platforms has been quite wonderful because it is great that someone can go onto Amazon prime and watch Heidi Schreck perform her play, What the Constitution Means to Me. It is great that I can go onto Apple and watch Come From Away, which I think was really one of the great captures that’s been done. So I think that that’s great, and I think that being able to, again, capture that moment in time and that experience of that performance, I think that’s really exciting.
Kalyn (15:29):
Yeah. Definitely. I’m also with you in that. There are some positives coming out of digitizing Broadway shows being more prevalent, but I am also hopeful that it doesn’t take down the value of seeing a show live. Nothing beats being able to hear the live orchestra and the lights, the dramatics of the lights. So, definitely.
Doug Nevin (15:51):
I think that that’s right, and I think that the reality is seeing these captures is great, but it’s not the same experience, right?
Kalyn (15:58):
Agree.
Doug Nevin (16:00):
Not even to say better or worse, but it’s not the same experience. Watching something online is not the same as being there in the theater, and I think that something that we’ve learned is that there maybe was a concern that if something is digitally available, people may not want being inclined to spend the money to go see it, and I think we’ve generally found that that’s simply not the case. If anything, it’s the opposite. I actually remember watching the capture of Come From Away in September when it was released, and it made me actually want to go see the show again, and I did a couple months later, and it was great. So I think that both of these things can exist hand in hand.
Kalyn (16:44):
Yes. I love that. Thank you so much, and this gives us some helpful background into our topic. So I’m now going to turn it over to my partner, Rainy, who’s going to dive in a bit further into some of the more relevant legal issues. Thank you so much.
Rainy (16:58):
Thank you, Kalyn. Thank you, Doug. So, now, we all have a general idea of the hardship the business has encountered after the outbreak of COVID-19. Also, we’re so glad to see that the business participants such as theaters, performers, and the unions all worked together to deal with this unprecedented situation. We understand that the shutdown of theaters has been a disaster for them with pressures from performers, and their unions, and audiences. It looks like live streaming may have been a wise idea to save everyone from this hardship. However, the change of business model is not as easy as we thought.
Rainy (17:38):
We understand that from an article called The Show Must Go On: Legal Issues Affecting Broadway Amid COVID-19 written by Matthew Windman. He mentioned that Broadway shows have really be fumed for commercial release due to prohibitive costs and a longstanding fear that filming a show will dilute it in mind to see it live. So there has to be lots of new issues popping up during the forced transition of the business model for theaters and producers. So, now, let’s take a look at all those questions. So, first, let’s take a look at this great part. So, Doug, could you please talk a little bit about, really, who owns the copyright of the script? Is it really controlled by the writers, or is it a work made for hire and the copyright comes to the theater? So does the copyright arrangement form needs to be adjusted due to the need for this live streaming of place?
Doug Nevin (18:33):
Yeah. So, in the theater, in the United States at least, playwrights will retain the copyright in their pieces. Essentially, when a playwright is granting permission to a producer to present a play, they’re essentially granting a license in the live performance rights in that play. All other rights are reserved to the author, and so one of the questions that has come up and has come up quite a bit at the beginning of the pandemic is, “What is the digital performance right?” Is it simply the live performance right, but with a modified means of bringing the play to the end user?
Doug Nevin (19:27):
Meaning, rather than someone being physically in the space, they are simply observing or experiencing the play from their own home. But is that just a supplement to the stage rights that are typically granted, or is it an entirely separate right that needs to be granted separately? A question that is being asked quite often, particularly with respect to older plays where audio-visual adaptations may have been made years and years ago is, is that separate from audio-visual rights in the play, right, which, A, would be reserved to a playwright typically, but B, may have been granted by a playwright to a film producer if a film has previously been made of that play.
Rainy (20:14):
Okay. So based on the difficulties you’ve mentioned, so do you ever handle the similar… such issues for your theater clients during this time if they want ever want to make a live performance?
Doug Nevin (20:39):
Yeah. We would look at existing rights grants and make a determination as to whether that was covered or not. If it wasn’t, we would usually just work with the writer’s representatives to make sure that the necessary rights were available. Generally, this is a, hopefully, once-in-a-century event, and so I think everybody understood the uniqueness of the moment and was doing their best to move things forward.
Rainy (21:06):
Okay. So we will see this is a new issue. There are not very… like case law or statutes to refer to. Would you say lack of authority… Is that true?
Doug Nevin (21:23):
As technology evolves, right, this is a somewhat novel item, but it is pretty common now in most rights grants for plays to reserve, A, the right to do a professionally captured live capture, and often, recently, we will often see in agreements the right to offer digital access or digital ticket purchase, digital ticket purchase to a live performance usually behind a paywall, et cetera. That is just to say that is something that we’ve seen some not-for-profit institutions do. We have not seen that happen wholesale commercially on Broadway yet?
Rainy (22:01):
Thanks for the clear clarification. So are there any unions being involved in this process, or it’s more like you can just talk to the representative of the play writers?
Doug Nevin (22:14):
Yeah. We will typically deal directly with the playwrights’ representatives, but many playwrights are members of the Dramatists Guild, which is… It is not a union. It is a guild, but the guild will advise its members on best custom and practices.
Rainy (22:37):
Okay. Good to know. So, now, let’s move to the performance part. We understand that there maybe very little space left for the theaters to negotiate because the unions, the guilds basically have all their terms set based on their standards. But we also understand that with the play being online, there may be some jurisdiction issues between Actors’ Equity and SAG-AFTRA because SAG-AFTRA normally controls the shows that are played online. So is that true, and does that mean that theaters have to be abided by requirements from both the guilds?
Doug Nevin (23:13):
So it is true that there has been a bit of a question as to who has jurisdiction over certain types of digital exploitations. It is not typically the case that one will have to comply with both Equity and SAG-AFTRA, but there has been some bit of a turf for just trying to understand as to which union has jurisdiction where. We do, generally, agree and understand that if a play or a musical is being performed in a theater and is being streamed digitally to viewers watching at home, that that would seem to be an Actors’ Equity jurisdiction production because the performance itself that is being transmitted is a live performance over which Equity would have jurisdiction. If something is being produced only for digital transmission, that is where it can get a little murkier, and so there will be a variety of factors.
Rainy (24:29):
So apart from the union part, do you think there’s anything new with the performance with actors for this live performance where it’s… with the performance, there are actually nothing special for them because their work is not that different than before?
Doug Nevin (24:48):
Well, I think it is different. I think that if you are performing in digital theater, I think it is a different medium. It requires different tools. You often can only use your upper body, right, in terms of your performance. There’s usually not a set that you can move around, and people are also performing in their own space and need certain technical equipment, ring lights and the like. So I think it is a very different situation.
Rainy (25:20):
So will that pose different challenges, difficulties for lawyers regarding their agreement, or it’s more like their art part will be affected mostly?
Doug Nevin (25:34):
We don’t represent typically actors and actresses. We typically represent the production, but yeah, I do think that there are different conversations to be had based on a production plan.
Rainy (25:46):
Okay. Sure. So, now, let’s take a look at, basically, the most important part, the production process. So the first question we’re very curious here is, how does recording process actually work for those shows designed for live streaming? So is it like just an ordinary recording with no specific art value consideration, and the main purpose is to get a whole picture of the show, or will you put actual art value consideration in deciding how to record it and present it, like the position of the cameras, the use of background musics, sound effect, and stuff like that?
Doug Nevin (26:24):
Yeah. I mean, I think that it depends on what’s being done, but I think that, generally, the notion of just putting a camera in the back of a theater to try to capture the full production is very much not what we’re looking at these days. The professionally captured performances that we were talking about earlier. I mean, I think anyone can see that Hamilton was recorded with the highest of quality as were many of these other captures. If you are performing a show live and digitally transmitting it, I’m thinking of Clyde’s at Second Stage. I’m also thinking of the Old Vic’s production of A Christmas Carol out of London in the winter of 2020, which was performed on the stage, but without a live audience and transmitted digitally. I think there’s quite a bit of effort, right, but into different cameras, different camera angles, but also, sound and sound mixing, so that everything can be properly heard, and understood, and captured. Absolutely. Yeah.
Doug Nevin (27:32):
Actually and just to say, it has been the case for quite a while that are archivals are filmed. Particularly for Broadway, the Lincoln Center Library for the Performing Arts records for archival purposes most Broadway productions. That is for archival use only. That is not available for commercial use. While the quality is good, those performances are captured for archival and educational purposes. They are not captured for commercial consumption. So there are different considerations.
Rainy (28:09):
Yeah. Sure. So would you say the new forms of live performance and you need to put more efforts for the recording and input more value consideration? So would that significantly increase the costs of the theaters, and is that something the business are worried about?
Doug Nevin (28:33):
Yes. I mean, that is why live captures don’t happen all that often. They are happening more often, but they are costly.
Rainy (28:39):
Yeah. Sure.
Doug Nevin (28:42):
Somebody needs to pay for it. Either the producers can pay for it and try to self-distribute. The producers can pay for it and hope that they get a distribution deal, and the purchase price will essentially cover the cost that they laid out to create the capture, or a third-party can come in. So there’s a lot of different ways of doing it, but it is expensive.
Rainy (29:05):
Which entity really take cares of the recording part, the theater and the producer will do it on its own or will find an independent contractor to handle it?
Doug Nevin (29:15):
Yeah. It really depends. Right? There are instances in which the theater producers will raise the money and do it themselves, and then sell it. Then, there are instances where a production company will come in and pay for it, and then find distribution. So it really does depend.
Rainy (29:35):
Maybe, finally, about the production part. Will there be any new copyright issue come up with the recording? So who owns the right to the recording normally, the theater or the online platforms, or they are just the distribution platform?
Doug Nevin (29:56):
The platforms usually do not, unless they are also the producers, but that will depend on the production and distribution deal, but it’s just important to remember that whoever owns the copyright in the capture does not… or in the digital version does not by virtue of that acquire any ownership in the underlying play that has been captured.
Rainy (30:22):
Sure. Yeah. That’s a different work. So I think my part is almost done. So do you have anything else you want to share with us from the theater side?
Doug Nevin (30:32):
No. I think that that pretty much covers it.
Rainy (30:35):
Okay. Thank you. So, now, I will turn the mic to my colleague, Shen-Min.
Shen-Min (30:42):
Thank you, Rainy, and I think Doug has already answered a lot of my questions. Now, I’m really curious about how to have a remote live performance agreement and how to cooperate with the streaming platform because I think this is a new platform mode, and I believe it creates a lot of new legal issues. Right? So my first question is, today, if people want to prepare an online performance, then what details do they need to pay attention to? How can they get the first step, and how to cooperate with the online platform? Can you share some your experience?
Doug Nevin (31:25):
Yeah. So I will say the sort of work that we’re doing, generally, will either live in a designated platform, right, like Amazon Prime or Netflix, or somebody will purchase the distribution… will acquire the distribution rights, but there are other instances, particularly when we’re talking about the digital theater that was created during the pandemic, that would often be broadcast through a dedicated page on YouTube or something like that. Of course, you have to represent to those platforms that you have all the copyright and permissions to put that content up. If anyone complains or says that you are infringing their copyright, et cetera, then the platform can look into it and can remove the content.
Shen-Min (32:29):
Oh, okay. I got it.
Doug Nevin (32:31):
Yeah.
Shen-Min (32:31):
So, usually, people will present their copyright by themself or they just have the platform to do that. I mean, they have…
Doug Nevin (32:46):
The platform won’t obtain a copyright in the work. The party creating the work will own the copyright in the work.
Shen-Min (32:54):
Okay. I understand. So for these kinds of situations, could you give us some advice on how to prevent the copyright infringement? Because we all know that when we put in pictures, or musics, or videos on the internet, then maybe a few minutes later, they will have thousands of copies. Right? So if I am an actor or I’m a performer, I want to protect my copyright. What should I do?
Doug Nevin (33:22):
Well, the copyright owner should always be diligent about policing for infringement, but also, I think you highlight one of the reasons that generally something like a YouTube is not, I think, a preferred route. Right? I think in the example of theater being available both live and digitally. So if I can purchase a ticket to view something digitally, that will typically be done not in an open platform, but in a dedicated password-protected link usually behind a paywall. I think that is one of the major ways that copyright infringement is protected.
Shen-Min (34:08):
Would you advise your clients that maybe adding some hidden watermark on the live videos or some kind that way to protect them?
Doug Nevin (34:18):
I think watermarks, password protection, paywalls are all smart.
Shen-Min (34:27):
Because I think we discussed a lot in Rainy and Kalyn’s part, so I think that is all of my questions.
Doug Nevin (34:31):
Great.
Shen-Min (34:32):
I’m wondering if you have any comments to share with us about how to protect the copyright.
Doug Nevin (34:41):
Anyone should always confer with counsel regarding ownership and copyright registration, and as I said, policing of any potential infringement.
Shen-Min (34:56):
Okay. Thanks a lot. Then, we go back to Kalyn,
Kalyn (35:00):
Doug, thank you so much for your time and speaking with us today. But before we let you go, do you have any last thoughts about the process of digitizing shows? This could include any general advice to aspiring lawyers and producers or those who practice in the industry.
Doug Nevin (35:15):
Yeah. I think we’re in an interesting moment. I think that what is exciting is the notion of increased accessibility, right, so that the ability to digitally transmit a performance, whether it’s a performance that’s happening live as a supplement to those who are physically attending that performance or whether it’s a distribution of a professionally captured production. I think that those, in the right circumstances, if they are well-done, if they are properly done and properly curated, I think can only help in terms of increasing accessibility, financial accessibility, geographic accessibility, et cetera.
Doug Nevin (36:09):
Ultimately, that is what theater is supposed to do. Right? Theater is supposed to promote the active engagement of ideas between a performer, and creator, and audience member. So I think it’s always important to view it in that lens, but not as a replacement for the live component because ultimately, theater is, at its root, a live performance. So I think whenever we’re talking about captures or digital exhibition of theater, it’s important to remember that this is a supplement. It is not a substitute.
Kalyn (36:49):
Right. Agree. Thank you so much. That’s really rich information. Thank you for your time. That is all for today. Thank you for sharing so much insight for us and our listeners, and thank you, listeners, for tuning in today. We hope this podcast has been informative and you were able to understand just how much goes on behind the scenes of theatrical productions. As we anticipate soon heading into a COVID-free world or at least COVID-lighter world, it’s good to have the tools and resources needed to navigate this now emerging way of performing. Thank you guys so much.
Doug Nevin (37:19):
Thanks. It was great.