Kerry Butler: "Lincoln Center, make a deal with unions and broadcast your archive recordings" — Page 2

Fosse76 said: "HogansHero said: "First of all, Lincoln Center has nothing to do with the TOFT archives. That's the library, which is a tenant of Lincoln Center.

Second, the NYSED does not have the power of eminent domain over the intellectual property rights in the archives assets. That is what one is suggesting when one says they should force the library to breach the contracts. (Those contracts, by the way, are not "questionable." They are built on copyright laws that existed long before the NYPL came into existence. And the idea of violating such rights is anathema to everything that the library stands for.)

Third, Mr. Morrow from TOFT has publicly written on this very subject, on the other board, within the last few weeks."

I'm not sure who you are referring to, but I never said that Lincoln Center owned the "tapes," though I did imply by my post that they are owned by the NYPL.

You might be right about the NYSED not having any regulatory authority over the NYPL. However, they are the main licensing agency in New York, and issue charters for entities formed within the state. They would have the autonomy to determine whether or not aninstitution or entity is meeting the requirements, and can certainly issue opinions and disciplinary notices.

I also never said they had the power to breach copyright law, since under no statute is the viewing of copyrighted material (even if restricted) considered a copyright infringement.Requiring TOFT to make the collection available via an online portal (and not simply uploaded to YouTube)in no way violates Federal copyright laws. Could it be a breach of contract? Sure, but only if undertaken unilaterally by TOFT or NYPL. If directed to do so by regulation, that would supersede any contract (assuming that it doesn't violate Federal laws that are themselves not unconstitutional). And if, as you claim, NYSED doesn't have the authority, the NYS legislature absolutely does.They can either directly address the collection (or vaguely to include similar collections), or they can empower NYSED with the ability to make such decisions.

As to whether or not the contracts are "questionable," I believe they are (this is my personal opinion, and certainly doesn't solely apply to the TOFT recordings). The NYPL is a taxpayer-funded government organization, and therefore the holdings belong to the people. As such, the public has every right to be able to access the materials. Yes, they can create rules and restrictions in order to protect the works, but these restrictions are supposed to be to protect the collection from physical damage. They aren't supposed to limit access based on who you are.


Fosse, couple of important things you need to understand. It’s not simply tax payers fund libraries, therefore everything should be up to the public to get access to it. A library can, and in this case does, have the ability to create an archive for research reasons which is what their doing. Also, it’s not just the public paying for it. The TOFT archive is also funded by grants given by the NY state council of the arts and NEA. Funding that they need. By altering things, like, making the videos open to anyone online undercuts the proposal made for the grants in the first place and NYPL could loose the much needed funding that they need and get from them.

There are some films there that you have to get special signed written approval from either the producers or creatives to even see. For example, Sister Act falls into that category as does the Roundabout production of Pajama Game.

I get it, people miss and want to see theatre. But, not only in this thread but in others as well it seems like people feel entitled to see it. I am not saying that that’s actually the case, but it’s the feeling I’ve been getting and I’m entitled to my opinion.

I defer to the knowledge of Hogan and others on this board who say there's really nothing to be done. And I can certainly understand the TOFT archives are a different thing, filmed for a different purpose. I was thinking, as Jordan and others have, about shows that were taped for television performances that would serve as a promotion for Broadway and theater at a time when there's nothing anyone can see in person.

If I could watch The King and I on BroadwayHD because they took the show to London, is it really impossible to make arrangements for South Pacific (written by the same people and filmed for a TV special already)? Can't something be worked out?

Maybe I am doomed to be frustrated on this, but I wish the parties involved could be more creative - not just for my selfish reasons but for the benefit of theater. It's going to be 7 or 8 months, at best, before anyone can see a play or musical. I could be wrong on this, but I just don't think the filmed production of Hamilton is going to cool most people's interest in seeing the show in person - unless they just don't feel safe in theaters, which is a separate issue. If anything, it will spur interest in theater, or at least that musical, at a time when there isn't much else new to watch.

One of the things that struck me in my current Sondheim phase is how many future creators and others discovered his musicals because of the filmed productions of Into the Woods and Sunday in the Park With George.

I understand theater is different from movies and television in that part of what makes it special is that no two shows are alike. There's an energy of a live performance that can't be replicated on screen, something I've been reminded of at times when watching a show on television or online. I'll find myself thinking it's missing something, and often what it's missing is an audience around me.

But we're not in normal times. A little creativity would be nice.

Updated On: 5/27/20 at 09:04 PM

Fosse, I will try to respond to what you've said. Islander also addresses some points and I won't retread.

"I'm not sure who you are referring to, but I never said that Lincoln Center owned the "tapes," though I did imply by my post that they are owned by the NYPL."

It seems that folks are talking about 2 separate things, what LCT filmed that has been on TV, and the NYPL archives, which exist under the terms of very restrictive contracts, thanks to the late Betty Corwin, that were the sine qua non of the archives coming into existence. You are talking about the latter.

"You might be right about the NYSED not having any regulatory authority over the NYPL. However, they are the main licensing agency in New York, and issue charters for entities formed within the state. They would have the autonomy to determine whether or not an institution or entity is meeting the requirements, and can certainly issue opinions and disciplinary notices."

NYSED oversees the university system which chartered the libraries so it would be wrong to say that it has no authority over the library (although I think it is indirect). I never said otherwise. But that does not give the libraries, the university system, the NYSED. or the legislature authority to violate contracts or copyrights, which amounts to taking the private property of another. That is called eminent domain and it is protected by the 5th Amendment to the US Constitution. In order to do that, the owner would have to be paid just compensation, and the government would also have to prove there was a public necessity and a public purpose. Each element of this would be subject to litigation, for years, and frankly it is inconceivable that the government would try for something of this nature. In any event, the consequences would be huge: not just years of litigation that would (hopefully) outlive this virus, but it would be the death knell of gifts to the library as well as museums and other institutions. (And yes, the TOFT recordings are gifts; no one was paid for them.)

"I also never said they had the power to breach copyright law, since under no statute is the viewing of copyrighted material (even if restricted) considered a copyright infringement.Requiring TOFT to make the collection available via an online portal (and not simply uploaded to YouTube)in no way violates Federal copyright laws."

This is not correct at all. Sorry.

"Could it be a breach of contract? Sure, but only if undertaken unilaterally by TOFT or NYPL. If directed to do so by regulation, that would supersede any contract (assuming that it doesn't violate Federal laws that are themselves not unconstitutional). And if, as you claim, NYSED doesn't have the authority, the NYS legislature absolutely does.They can either directly address the collection (or vaguely to include similar collections), or they can empower NYSED with the ability to make such decisions."

This sounds like something that might happen in a totalitarian government, but let's hope never in the United States. Please tell me you are not seriously advocating the overthrow of our cherished form of government.

"As to whether or not the contracts are "questionable," I believe they are (this is my personal opinion, and certainly doesn't solely apply to the TOFT recordings). The NYPL is a taxpayer-funded government organization, and therefore the holdings belong to the people. As such, the public has every right to be able to access the materials. Yes, they can create rules and restrictions in order to protect the works, but these restrictions are supposed to be to protect the collection from physical damage. They aren't supposed to limit access based on who you are."

Again, sorry, but this is totally wrong. Millions of properties are held by the library (and many other cultural institutions around the world) subject to restrictions on access. The library owns tons of rare material, dangerously fragile material, and extremely valuable material that you will never get your hands on. Some of it (like some of TOFT) is available subject to proof of need to see it, and some of it is not really available to anyone. (This includes a large amount of material that will become more accessible after a specified number of years.) But all of these gifts that were made with restrictions are revocable if the donee breaches the terms of the bequest. The library is the library because it is a reliable steward. What you are proposing would do irreparable harm. You are just very very wrong.

No, no, and no.

I don't think people who are asking for this understand what it takes/who has to sign off to show recordings of shows. I also don't think they understand the idea of the value of not sharing recordings just because.

The people who own these recordings and are showing them are not showing them just to be nice... It's business first, always.

OffOnBwayHi said: "The people who own these recordings and are showing them are not showing them just to be nice... It's business first, always."

It's rare, but I think Dave Malloy showed Ghost Quartet just to be nice.

That's the one I was referencing in my earlier post. I wasn't sure if it was cool to link to the other board but I hope it is

OffOnBwayHi said: "schubox said: "OffOnBwayHi said: "No, no, and no.

I don't think people who are asking for this understand what it takes/who has to sign off to show recordings of shows. I also don't think they understand the idea of the value of not sharingrecordings just because.

The people who own these recordings and are showing them are not showing them just to be nice... It's business first, always."

I think most people would just love to be able to see classic shows with actors that in roles that they literally have no chance of ever seeing. Put all of the legal red tape aside, do you really not think it would be amazing to be able to watch pretty much any performance from the last couple of decades? What an amazing and overwhelming prospect that would be. Of course it will never happen"

Not to be downer Dan, but no, I would not think it would be amazing.

Look, I am a writer. I go to TOFT all the time (I know we’re not talking about that, just an example)to view shows for research/reference purposes. I find it useful to my work, and I do admit that it’s pretty incredible that an archive like that exists.

With that said, it’s nothing like the real thing. It’s not actual theater. During this quarantine, I’ve seen so many filmed shows. Some for reference, some for enjoyment. It’s not theater. It’s just not.

We are in a time where whatever we want we believe we should get. So much easy access. Too much music. Too many films. An excess of TV. Cheap, cheap art, easily consumable for quick profit. Most of it forgettable. If it is of a spectacular, notable quality, we still forget it because something new runs up behind it and captures our attention. Or, we consume even more in search of another piece of “content” (we don’t even call it ART anymore) that can lift and feed us substantially again.

THAT is what too much of something does. So no, I do not think it would be amazing to freely have access to pretty much any performance from the last few decades. No, I don’t think theater should set it’s sights on streaming goals. No, I don’t think the Lincoln Center should just start offering up their recordings. That is not our game. That is not what we need.

I get the thirst and the want, but people only feel that because the real thing is so great.

Theater is an ephemeral physical experience,and that is what you really want. Our selfish desire for a beepload if archive recordings will never satisfy that, no matter what excuse we make to persuade them to be available to us.

I clearly can go on, especially about what the theater industry REALLY needs to grow,stay healthy, and survive (NEW AUDIENCES!!), but I offer everyone to just embrace the performance in front of you tightly next time we’re privileged to enter the theater —whenever that might be. You may just be watching the next big iconic theater moment that someone years from now wish was streaming...or holograming or something."

So you have access to it, and admit it that it's incredible to be able to witness these past recordings, but you want to keep it limited out of some weird art should not be everywhere or it cheapens it weird vibe. But your solution to help the theater grow is new audiences. But you don't want these older, classic performances to reach new audiences by becoming readily available.

I get that this is a dumb argument since, as has been noted many times in this thread, these performances will never see public consumption. But your whole post comes off as extremely elitist. Of course it's not theater, and it is not the same as being able to see these things live. But it is literally impossible to see these performances live, because they don't exist to be seen.

You want to grow an audience? Let some kid see some of the all time great performances of the last 20-30 years. Don't keep them locked away, stop being so pretentious about theater. Stop trying to make it so hard to access.

Up until this pandemic, Broadway was breaking records of ticket sales. 2018 was Broadway's best year in history. You can go on and on about how it will become 'less relevant' but the facts and the numbers don't lie: the butts are in the seats -- and paying very well for it (well, not right now and not for a while but you get what I mean).

If a producer finds a way to maximize their profits, all power to them. Doesn't mean they HAVE to. Doesn't mean Broadway will wither and die if they don't. Don't confuse your wishes with the actual reality.

Yes, because Tootsie, Head Over Heels and King Kong would totally become absolutely loved musicals and instant powerhouses and run for 50 years if they had only filmed them! That's the whole problem those and other shows

schubox said: "OffOnBwayHi said: "schubox said: "OffOnBwayHi said: "No, no, and no.

I don't think people who are asking for this understand what it takes/who has to sign off to show recordings of shows. I also don't think they understand the idea of the value of not sharingrecordings just because.

The people who own these recordings and are showing them are not showing them just to be nice... It's business first, always."

I think most people would just love to be able to see classic shows with actors that in roles that they literally have no chance of ever seeing. Put all of the legal red tape aside, do you really not think it would be amazing to be able to watch pretty much any performance from the last couple of decades? What an amazing and overwhelming prospect that would be. Of course it will never happen"

Not to be downer Dan, but no, I would not think it would be amazing.

Look, I am a writer. I go to TOFT all the time (I know we’re not talking about that, just an example)to view shows for research/reference purposes. I find it useful to my work, and I do admit that it’s pretty incredible that an archive like that exists.

With that said, it’s nothing like the real thing. It’s not actual theater. During this quarantine, I’ve seen so many filmed shows. Some for reference, some for enjoyment. It’s not theater. It’s just not.

We are in a time where whatever we want we believe we should get. So much easy access. Too much music. Too many films. An excess of TV. Cheap, cheap art, easily consumable for quick profit. Most of it forgettable. If it is of a spectacular, notable quality, we still forget it because something new runs up behind it and captures our attention. Or, we consume even more in search of another piece of “content” (we don’t even call it ART anymore) that can lift and feed us substantially again.

THAT is what too much of something does. So no, I do not think it would be amazing to freely have access to pretty much any performance from the last few decades. No, I don’t think theater should set it’s sights on streaming goals. No, I don’t think the Lincoln Center should just start offering up their recordings. That is not our game. That is not what we need.

I get the thirst and the want, but people only feel that because the real thing is so great.

Theater is an ephemeral physical experience,and that is what you really want. Our selfish desire for a beepload if archive recordings will never satisfy that, no matter what excuse we make to persuade them to be available to us.

I clearly can go on, especially about what the theater industry REALLY needs to grow,stay healthy, and survive (NEW AUDIENCES!!), but I offer everyone to just embrace the performance in front of you tightly next time we’re privileged to enter the theater —whenever that might be. You may just be watching the next big iconic theater moment that someone years from now wish was streaming...or holograming or something."

So you have access to it, and admit it that it's incredible to be able to witness these past recordings, but you want to keep it limited out of some weird art should not be everywhere or it cheapens it weird vibe. But your solution to help the theater grow is new audiences. But you don't want these older, classic performances to reach new audiences by becoming readily available.

I get that this is a dumb argument since, as has been noted many times in this thread, these performances will never see public consumption. But your whole post comes off as extremely elitist. Of course it's not theater, and it is not the same as being able to see these things live. But it is literally impossible to see these performances live, because they don't exist to be seen.

You want to grow an audience? Let some kid see some of the all time great performances of the last 20-30 years. Don't keep them locked away, stop being so pretentious about theater. Stop trying to make it so hard to access."

I don’t have true, free access to TOFT. Do you know how it works? You can only view a show once, forever, and they ask your reason for viewing, which is supposed to only be for theater professionals preparing to make more theater. For educational purposes. It’s not an on-site Netflix for theater. You even have to check your bags, alongside other security measures, and make an appointment.

This isn’t even about TOFT. I was just using that as an example, to explain why someone would want something like that freely available and why I feel it it shouldn’t be.

Sorry that it came off elitist. Not my intent.

It is fantasy land to think that there is a huge audience for the archival recordings. Sure, folks here would be ecstatic, but it wold mostly go unnoticed. Want to excite kids about the theatre: give them something relatable. I have long felt (and expressed here many times) that showing films of stage shows often does more harm than good. I have loosened my feeling on that for the pandemic, but make no mistake not very many people are watching these things. It's to keep US from going crazy, but that's it.