A question of consent

There is a great deal of interest in arts organisation archives at the moment. This is undoubtedly propelled by the ability to capture recordings more effectively and, in some cases, more cheaply, using digital media. There are a number of organisations such as the National Theatre, the Royal Opera House and the Royal Shakespeare Company, leading the way with extensive archives, which help to promote best practice and prime the debate as to the different approaches organisations take. These issues were discussed at a conference called ‘Documenting Theatre Practice’, held at Central School of Speech and Drama, at which I spoke on the legal issues involved where issues were clarified for practitioners and academics alike.

The legal issues can be daunting. For shows which may include choreography and back-projections, the list of clearances required before any recording can be made may be as follows: clearing rights in the musical recording and musical composition, the script and underlying work on which the script is based; clearing rights in the direction, choreography, set and lighting design, and costumes; obtaining clearances from all performers including musicians; clearing rights in any projections: the film itself (i.e. the director and the producer) and all copyright material incorporated such as artistic work (drawings and lettering) and the director’s directing contributions and creative team contributions for the film. The nature of the clearances is not prescribed, needing to cover the intended use with sufficient clarity and certainty.
The difficulty for those coming to an existing archive is establishing which rights have been cleared. It can be a major challenge to locate and obtain all the requisite clearances. Should you fail to be able to obtain all the clearances, then the recording in question may need to be mothballed and not used in any significant manner. The relevant agreements with unions will be of key importance when considering clearances for performers (including musicians), though they will also be relevant for creative teams. Whilst these standard agreements may not go as far as many of those managing archives want, unions do appreciate the issues and have made efforts to accommodate reasonable requests, particularly in relation to non-commercial use. It is also necessary to consider what the proposed use of the archive will be – at the onset if possible. You may want material to be available for the organisation’s website, as general promotional material, or purely for educational or research purposes. Seeking to go back and broaden the permitted use can be difficult. It is much better to anticipate all the issues. Archives can be enormously valuable but they do present considerable challenges in terms of obtaining the necessary legal rights.