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Performers Rights in Respect of
the Recording of Live Performances
Ragnhild Nygaard (The
Norwegian Actors Equity Association, Oslo)
Documentation et Art de
l'Acteur
Records and Images of the Art of the Performer
18ème Congrès
International, Stockholm 3-7 septembre 1990 / 18th
International Congress, Stockholm 3-7 September 1990
Editor: Barbro Stribolt (Drottningholms Teatermuseum).
Stockholm : 1992, p. 95-97
As performers in the
live theatre our art is of the moment. It exists at the
moment of interaction between the performer and the
audience. Without the audience a vital element of the
live theatre performance is lacking. This element is in
essence an emotional experience rooted as much in the
receptivity of the audience as in the art of the
performer. As such it cannot be captured or re-created by
any means of recording. And yet, it has throughout the
centuries been deemed such a powerfully heightened
emotional experience that recording of that moment has
been attempted by various means.
Audience participants have put their observations into
words, describing their own reactions and trying to
describe what it is they have seen and heard. Other
artists have depicted the performer in the plastic and
pictorial arts, trying to convey the fascination of
performance in what is nevertheless essentially a
still-life medium. Early photography, the first so-called
objective documentation, portrayed performers in a posed
studio situation, though trying to convey the impression
of a fluid moment.
There is no doubt that still-life recording can provide
valuable information and insight to the knowledgeable
student of theatre, who is able to translate the image
and does so in the context of historical times, reading a
photograph as an art critic or art historian reads a
painting. Next came photos of the theatrical performance
itself, taken during the progress of the performance,
albeit often at special photo sessions. And the best of
those performance-in-progress photographs are art in
themselves. Interestingly enough, however, the criteria
for the best of these photos rest not necessarily, and
certainly not exclusively, on technical quality - but in
the intensity of the moment, the expressiveness, the
clarity with which a thought is conveyed, sharing the
emotional story and not the re-telling of the literal
action.
And while all these methods of recording and interpreting
the art of the performer in performance continue to
exist, even to flourish, and apparently are not eclipsed
by the advent of new methods, the latest technology
arrives to provide us with what we may mistakenly
perceive to be as good as the actual performance itself:
the recording of live sound and live movement taking
place before a live audience.
The idea that what we get is actually the performance is
of course a mistaken perception, because the focus of the
audience at a live performance, while it is guided by the
artistic choices of the creators, exists in the context
of several choices, whereas sound recording equipment and
the camera operate according to rules of their own in
order to focus the attention of the audience.
A full-view audiovisual recording of a stage performance
may certainly have some historical interest, but it
leaves out vital elements of the art of the performer.
Audiovisual recording creates another work, at best a
work of art. The camera that selects focus, when it does
this well, creates its own interpretation, artistically
as well as legally speaking, but can never capture the
actual live performance, even when it provides
satisfactory audience entertainment.
With this latest advance in technology we have passed
from the realm of images and records of the art of the
performer serving decorative purposes for patrons of the
arts and as historical material for the student of
theatre, and into a time of spin-offs of the live
performance. We have in our hands a product for
consumption by other audiences in time and space,
phenomenally far-reaching in terms of geography and
social context. We therefore come, not inevitably but
immediately, to the question of performer control of
performance. We must deal with the question of commercial
exploitation and control mechanisms directed at the use
of technology for the recording of performance and for
the private copying of recordings.
In some countries, and fortunately more and more, the
performer is recognized as the creator and owner of own
performance, and this has been reflected in national
legislation. In other countries, performer trade unions
have at least been successful in including contract
language to this effect. But some countries still accord
the performer no proper credit in this respect.
The right of control gives the performer an opportunity
to accept or refuse audio/visual recording and to
negotiate equitable remuneration for the use of such
services rendered. If the artistic conditions are good
and respect the art of the performer, it is rare for a
performer to refuse recording. Refusal rarely hinges on
reasonable remuneration. But it is not for the artist to
finance the producers of television programming, which
are second only to politicians in their eagerness for
such recordings.
The majority of live theatre performances in Norway are
recorded, either on video or audio tape. In the 1960's
few theatre performances were filmed, but with easily
accessible video technology in the 1970's, the subsidized
theatres now make video tapes of their main stage
productions, while they continue to make mostly only
sound recordings of their studio stage or second stage
productions, with some exceptions. Most private theatres
make video recordings and as many fringe groups as can
afford it try to record their performances on video. Such
recordings are made during regular performances before a
paying audience. These tapes are the property of the
theatre producer and are made primarily for the purpose
of documentation. Most of the recordings are therefore
made with one stationary camera only with a set focus and
the camera is placed in the house.
Since the late 1970's, however, a number of theatre
performances have also been recorded by the national
Norwegian broadcasting network, with the aim of
presenting an artistic product. Recordings have been made
under varying conditions: sometimes in full transfer to a
regular studio production; sometimes in an adaptation
making some concessions to the television medium, in a
studio or on the stage; sometimes, in fact mostly,
directly from the stage before an audience, with special
shots edited in. The resulting quality has varied. The
best results have been achieved when preparations have
been careful and the performers have had the opportunity
to adjust their performance to the demands of the camera.
All recording of performance requires the consent of the
performer in Norway, according to national legislation
introduced as far back as 1961. Commercial recordings are
made only after negotiations about working conditions and
remuneration.
The Norwegian unions have so far in vain tried to
negotiate a collective agreement in this area. At this
point the unions negotiate the contracts for their
members for each separate production. During the past
couple of years we have dealt with six such productions.
Certain general rules apply to all television production
for the national network the reuse that the network may
make of their tapes. Re-runs are remunerated at a certain
percentage, as are sales to television channels abroad.
All other use is prohibited, unless negotiated specially.
Negotiated salary for the recording of live performance
includes a sum for the weeks of work which the actor has
already put into creating the role. In addition payment
is made for special rehearsals necessary for television
recording. Actors are placed on a scale of one to five
for the computation of remuneration, usually according to
the importance of the character in the play, the size of
the role, and the seniority of the actor.
It is not necessary to be secretive about the fact that
the commercial recording of live theatre performances has
been a hot political issue in our country for a number of
years, and still is. Politicians argue that since actors
are paid with public subsidies for their theatre work,
the actors should also be required to make that work
available through television in order to reach that part
of the public which cannot, for reasons of geography or
other, attend the performance at the theatre venue
itself. Furthermore, they make the outrageous demand that
the actors should make this televised performance
available free of charge. This is, of course, totally
unacceptable to us.
Whereas a live theatre performance lives on in the mind
of the spectator, and is not in much danger of
usurpation, a recorded performance is all too easily
subject to copying, also illegally. Regarding use, it is
therefore important to safeguard the rights of the
performer against abuse. Equally important is equitable
remuneration for use.
The eagerness of theatre history custodians must take
into account the commercial exploitability that modern
technology gives to audiovisual recordings of
performance, and must not in their eagerness place
scientific demand for research material foremost. If the
art of the performer is worth studying, preserving it is
also due proper respect to the performer. And theatre
history institutions have a responsibility not merely to
add the best to their collections but to exercise the
utmost care against undue exploitation. Historical
ambition or institutional pride must not overtake the
curators. It is important that libraries and research
facilities exercise their own right of control. Access to
the collected recordings must be restricted.
Theatre historians should be the first to support us in
our demands for control and protection. We want qualified
products to reach our public and stand on record for
future generations. While we do not try to ensure
positive judgement of our work, we are insistent that it
must be made on the basis of what we perceive to be the
performance we truly gave our public. Our rights as
performers pertain not only to legislative or contractual
rights, but to our artistic rights - our right to proper
representation of our work - as a work of art. For this,
which carries the only real worth in historical
documentation, there are no easy, quick and cheap
solutions.
Remark
The lecture was delivered by Rolf Arly Lund (Oslo).
18th Congress
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