CDAs (article): Broadway Producers Sued Over Smokey Joe’s

Three Tips for Broadway Producers Recording their Shows for Streaming Platforms
By Frederick Bimbler and Marc Hershberg
B

roadway
producers interested in recording musicals for streaming platforms should pay
attention to a new lawsuit.

The
complaint was filed by Chapman Roberts, a Broadway music arranger, and alleges
that a team of Broadway producers entered into an agreement with the plaintiff
in 1994 to make original vocal arrangements of some famous songs from Jerry
Leiber and Mike Stoller for their musical revue, Smokey Joe’s Café.
According to the complaint, the contract stated that Roberts’ arrangements in
the show could not be performed, transcribed, recreated, copied, published, or
recorded without his permission.

But,
according to the complaint, in 1999, Broadway Television Network recorded a
couple of performances of the Tony Award-nominated show without Roberts’
permission.

“When
Roberts learned of this, he contacted BTN, and BTN then asked retroactively for
permission to commercially distribute the recording of the [m]usical to the
public,” his lawyers claim. But, it is alleged that no agreement was ever
reached, and Broadway Television Network broadcast the recording as several
pay-per-view events and then licensed it for distribution through BroadwayHD, a
video on-demand service for musicals and plays.

More
recent digital streaming licenses of the recording purportedly have occurred,
and in October, Roberts sued Broadway Television Network, BroadwayHD, and
several other related parties in federal court, alleging direct and contributory
copyright infringement and the intentional and knowing distribution of false
Copyright Management
Information.

The
merits of this lawsuit aside, which the court will decide in due course,
Broadway producers should bear in mind the following three lessons from the
allegations in the lawsuit.

1. When creating an audiovisual
recording of a theatrical production, Broadway producers should be certain to
obtain all of the necessary rights. Experienced entertainment attorneys can
help producers determine which rights are necessary and who owns them – and
then negotiate the deals for those rights.

2. The rights to various protectible
elements required to perform a work on stage do not necessarily include the
right to create and exploit an audiovisual recording of the same work on stage.
While some contracts might include provisions that address audiovisual
productions, for many elements of a theatrical production, it is likely that
the audiovisual rights will need to be granted in a separate license agreement.

3. If Broadway producers cannot successfully
obtain all of the necessary rights for an audiovisual recording of a theatrical
production, then they should not proceed with distributing the recording.
Missing some of the necessary rights will frustrate deals with distributors who
do their homework, and the recording might result in a lawsuit, like this
lawsuit involving Smokey Joe’s Café.

The
case is Chapman Roberts v. BroadwayHD LLC et al., Index No.:
1:19-cv-9200 (S.D.N.Y. Oct. 4, 2010).

Three Tips for Broadway Producers Recording their Shows for Streaming Platforms