A Sonoma County promoter, Michel Michelis, flew the circus artists out for three weeks of performance at the Festival d’Avignon. The work was unpaid, but he offered to cover their airfare, food and lodging, and promised paid gigs in the Bay Area after they returned.
They signed contracts for the festival and boarded their plane, but things didn’t go so smoothly when they arrived on the other side of the Atlantic. Sawant, an experienced aerialist, immediately recognized that the rigging set-up at the theater was unsafe to hang from, so she got second opinions from several professional riggers she knew back home.
“Pretty quickly I got responses [saying] this is not something you should perform on—and definitely not for 17 shows,” she says, adding that tons of equipment would have fallen on her if the set-up malfunctioned. Instead of fixing it, she says, “[Michelis] got really defensive and upset, and he threatened to send us all home and charge us for the airfare and place to stay.”
The performers recall that after wasting several days meant for rehearsal, Michelis ultimately hired a professional rigger. But their relationship with him had already soured.
For the rest of the trip, the three artists say, there were last-minute changes, miscommunications and broken promises about living accommodations, grocery trips and rehearsals. Some of the artists spent their own money on transportation and, in the case of Briggs, had to find an alternative place to stay. The promised work after the trip to France also never came.
Feeling disheartened by the entire experience, Sawant, Briggs and Creveling privately vowed to never work with Michelis again. So they were taken aback when they saw that the promoter was selling a recording of their 2019 Avignon performance on Vimeo, billing it as the new, 2020 virtual show of his company, Cirque de Bohème. The video was $34 to purchase and $22 to rent.
“We weren’t even paid to do [the show], but now he’s making money off of it,” says Briggs.
“He didn’t check in with us as the performers,” says Sawant. “We only knew because we saw a Facebook post, and he specifically didn’t have us on his email list where he blasted it out. I think he had no intentions of compensating us.”
Entertainment lawyer Mark Pearson of San Francisco’s ARC Law Group believes that Michelis’ attempts to monetize the video without the artists’ permission constitute several violations of the artists’ intellectual property rights to their performance, choreography and image. He says this sort of situation is becoming much more common with the rise of online events during the pandemic.
“It happens all the time. Now with COVID, it really introduced a lot of people to livestreaming video on demand and utilizing those types of platforms,” he says, listing off Twitch, YouTube and Facebook Live. “Oftentimes people aren’t thinking about these issues. And then feathers get ruffled.”
He explains: “When an artist sees their rights are being monetized and they were not consulted and they did not agree to that, that’s where you’re going to see a lot of problems.”
The performers in the show say they verbally consented to the performance being recorded because they were promised a copy of the video. But they didn’t sign a release authorizing the video to be published, let alone sold. In the United States, both choreography and live performances are subject to copyright, and neither can be recorded or sold without a written agreement. And in California, people have an additional “right of publicity” that prevents others from making money from their likeness, voice or image without their consent.
After Briggs, Creveling and Sawant contacted Michelis about the unauthorized video, he emailed them to say that he planned to send performers 20% of sales—but also asked them to never contact him again. After KQED unsuccessfully attempted to reach him via phone and email, he set the video to private. Briggs filed a complaint with Vimeo, and by Dec. 1, the streaming service removed the video and notified her that it took action, although it did not say how many people purchased the video and whether they received refunds. On the Cirque de Bohème website, however, Michelis did not admit to wrongdoing; he wrote that he decided not to go forward with the virtual show because his mother passed away from COVID-19.
Happy the video was taken down, the artists say the ordeal was a lesson for them. Often in the performing arts, artists are happy just to get work, and this scarcity of opportunities disempowers them to advocate for fair contracts and wages.
“It’s part of the culture, almost,” Creveling says.
But Pearson says there are a number of things performing artists can do to protect themselves: firstly, they can register copyrights of their choreography and other types of performances, which costs $45-$85 per artwork and can be done online. Secondly, they can word their contracts to include specific language that does not authorize recordings. And if they do authorize a recording, they should make sure that the contract spells out the ways the footage can be used and what royalty payments they’ll require if it’s monetized.
Pearson emphasizes that this is an added precaution—someone still wouldn’t be giving consent to a recording even if they leave such a clause out of their contract. “It would just lessen any ambiguity over the issue, so I think that’s something that should be inserted into agreements,” he adds.
For Sawant’s part, she plans to write about contractual issues on her circus business Patreon account, and she’s currently putting together a list of virtual shows that pay circus artists for the local culture site Broke-Ass Stuart. “I’d rather send people there if they’re actually trying to support local arts,” she says.
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