If I audio and/or video record an unpaid performer and then play that recording on a not-for-profit podcast where I would be critiquing the perfomer, would I need to get signed releases from the performer and/or the owner/agent of the venue in which the performer performed?
What could my liability be if I didn't have said releases?
1 Answer from Attorneys
The performer presumably has an interest under copyright law that affixes automatically in their performance. Recording something like that, like a street performer for example and for personal use is never an issue. But when you commercialize that, things change. Using a clip of a broader work to support a critique like a film critic for example is an obvious example of fair use, but there are many ways to cross the line. For instance, if you use way more than what is necessary to express that point.
Further, fair use is a legal defense and the copyright holder is always free to drag you into court and force you to prove out your use as fair. So if you plan on relying on that defense you better be right and that rightness better be obvious.
The only way to offer an answer you can rely upon is to review exactly what you intend to show and in what context. So before you make any investment, I suggest that you consult with a lawyer in private and discuss your objectives in more detail. You can start by calling around to several for a free phone consultation, get some insights then pick the best fit to work with.
If you would like to discuss further over a free phone consult, feel free to contact me anytime that is convenient.
Our firm is now referred by the American Bar Association (see under the New York section):
DISCLAIMER: this is not intended to be specific legal advice and should not be relied upon as such. No attorney-client relationship is formed on the basis of this posting.