Who owns performances?
February 17, 2007 8:20 PM Subscribe
When a band plays a venue and a recording is made of the performance, who owns the rights to the performance? Is it the Band, the Venue, the Record Company or whom so-ever actually put the tape in the deck and hit record?
The person holding the tape recorder and capturing a bootleg of the performance has zero copyrights under all scenarios.
posted by Steven C. Den Beste at 9:12 PM on February 17, 2007
posted by Steven C. Den Beste at 9:12 PM on February 17, 2007
The person holding the tape recorder and capturing a bootleg of the performance has zero copyrights under all scenarios.
What about the scenario where the person holding the tape recorder is...the singer?
Think about things a little bit harder next time, Steven.
posted by Jimbob at 9:23 PM on February 17, 2007
What about the scenario where the person holding the tape recorder is...the singer?
Think about things a little bit harder next time, Steven.
posted by Jimbob at 9:23 PM on February 17, 2007
Well, to be fair, I don't think anyone would call a recording of one's own performance a "bootleg."
As far as I know, raf is right.
posted by danb at 9:29 PM on February 17, 2007
As far as I know, raf is right.
posted by danb at 9:29 PM on February 17, 2007
Whoever owns the copyright(s) and/or publishing right(s)..... unless, of course, the song is in public domain, which no one really has an exact answer for what that means....
see section 234 sub paragraph 33 section F
Usually, one of the things involved in a live-performance contract is the legality of cameras/recorders/etc
See: Grateful Dead (encouraged bootlegging), Metallica (used to encourage bootlegging until they got huge and then sued anyone that even said their name on tape), and Guns And Roses (have been known to incite riots at the mere display of a tape recorder at a live show).
The music industry legal situation is a nasty, complex affair. I once bought an "Intro to Publishing and Legalities in The Music Business" book and it was 900 pages long..... still haven't finished it, 20 years later, which is why I play for beer now.......
But no, whoever is taping the concert does not own the content unless they already own the content or has consent to tape the content from the owners of the said content to begin with......
posted by peewinkle at 9:40 PM on February 17, 2007
see section 234 sub paragraph 33 section F
Usually, one of the things involved in a live-performance contract is the legality of cameras/recorders/etc
See: Grateful Dead (encouraged bootlegging), Metallica (used to encourage bootlegging until they got huge and then sued anyone that even said their name on tape), and Guns And Roses (have been known to incite riots at the mere display of a tape recorder at a live show).
The music industry legal situation is a nasty, complex affair. I once bought an "Intro to Publishing and Legalities in The Music Business" book and it was 900 pages long..... still haven't finished it, 20 years later, which is why I play for beer now.......
But no, whoever is taping the concert does not own the content unless they already own the content or has consent to tape the content from the owners of the said content to begin with......
posted by peewinkle at 9:40 PM on February 17, 2007
The person holding the tape recorder and capturing a bootleg of the performance has zero copyrights under all scenarios.
I can think of several scenarios where this isn't the case.
* The performer is in public, singing his own work, where he has no reasonable expectation of privacy. The recording party owns the recording as an expression of a public event. There are certain restrictions (e.g. cannot use the recording to advertise something, as in the Rochester Folding Box case), but he would own the recording and could sell it in the same way you would own a photo of Paris Hilton walking down the sidewalk.
* The performer is in public singing a song owned by someone else. Again, the recording party owns the recording, but the original copyright owner retains his/her rights to the original work -- neither the performer nor the recorder inherits anything there.
* The performer is in public singing a song that is in the public domain, like the National Anthem. The recording party owns the recording, and the performer inherits zero rights to the song.
posted by frogan at 9:52 PM on February 17, 2007
I can think of several scenarios where this isn't the case.
* The performer is in public, singing his own work, where he has no reasonable expectation of privacy. The recording party owns the recording as an expression of a public event. There are certain restrictions (e.g. cannot use the recording to advertise something, as in the Rochester Folding Box case), but he would own the recording and could sell it in the same way you would own a photo of Paris Hilton walking down the sidewalk.
* The performer is in public singing a song owned by someone else. Again, the recording party owns the recording, but the original copyright owner retains his/her rights to the original work -- neither the performer nor the recorder inherits anything there.
* The performer is in public singing a song that is in the public domain, like the National Anthem. The recording party owns the recording, and the performer inherits zero rights to the song.
posted by frogan at 9:52 PM on February 17, 2007
This is actually a pretty complicated matter. I'll try my best to illucidate:
1. In order for a band to secure a copyright for a particular song, it has to be "fixed in a tangible medium". Simply by performing publicly, you are not fixing anything tangible, so you do not "own the copyright of your public performance". that's simply a concept that has no meaning.
2. If you own the copyright to your own work, you have the exclusive right to perform that work. No one else can perform it without your consent. (kind of irrelevant to your question though)
3. When a venue "records" your public performance, they are in effect creating something that is "fixed in a tangible medium". So technically, even though its your performance, its their recording. You do not have any rights over the recording, because you are not actually the author of that particular recording.
4. Still, if the band owns the copyright to the music they are performing, stemming from copyright law, they technically have the right to control the reproduction and distribution of their own work. So barring any agreement the band might reach with the venue that states otherwise, the venue cannot reproduce and distribution the recording they made without your consent.
5. But since we're not talking about sound recordings available on a CD - remember, you are talking about a performance, not something fixed in a tangible medium - the question of whether copyright law protects you from somebody who wants to record your live show isn't so clear. The good news is that the goverment has federal anti-bootleg statutes that criminalizes the unauthorized manufacture and distribution of "live" musical performances.
If you are trying to compel the venue to hand over a recording they made of your band, i'm not sure they have to.
posted by phaedon at 9:56 PM on February 17, 2007
1. In order for a band to secure a copyright for a particular song, it has to be "fixed in a tangible medium". Simply by performing publicly, you are not fixing anything tangible, so you do not "own the copyright of your public performance". that's simply a concept that has no meaning.
2. If you own the copyright to your own work, you have the exclusive right to perform that work. No one else can perform it without your consent. (kind of irrelevant to your question though)
3. When a venue "records" your public performance, they are in effect creating something that is "fixed in a tangible medium". So technically, even though its your performance, its their recording. You do not have any rights over the recording, because you are not actually the author of that particular recording.
4. Still, if the band owns the copyright to the music they are performing, stemming from copyright law, they technically have the right to control the reproduction and distribution of their own work. So barring any agreement the band might reach with the venue that states otherwise, the venue cannot reproduce and distribution the recording they made without your consent.
5. But since we're not talking about sound recordings available on a CD - remember, you are talking about a performance, not something fixed in a tangible medium - the question of whether copyright law protects you from somebody who wants to record your live show isn't so clear. The good news is that the goverment has federal anti-bootleg statutes that criminalizes the unauthorized manufacture and distribution of "live" musical performances.
If you are trying to compel the venue to hand over a recording they made of your band, i'm not sure they have to.
posted by phaedon at 9:56 PM on February 17, 2007
In my first point, I have failed to point out that the artist singing the song in public would of course retain copyright to his own work. But not the recording of the work done in public with no reasonable assumption of a private performance.
posted by frogan at 9:57 PM on February 17, 2007
posted by frogan at 9:57 PM on February 17, 2007
Response by poster: Interesting points. I'm not interested in bootlegging. I'm interested more in whether or not a night club sound guy could record something and then sell it, with or without the consent of the Band. I'm interested in if the Record Company has any standing at all.
posted by jeffamaphone at 10:07 PM on February 17, 2007
posted by jeffamaphone at 10:07 PM on February 17, 2007
Response by poster: Also, thanks to all who bothered to reply.
posted by jeffamaphone at 10:07 PM on February 17, 2007
posted by jeffamaphone at 10:07 PM on February 17, 2007
i dont think the "expectation of privacy" argument holds. selling pictures of paris hilton walking in public is not the same as selling a bootleg recording of a band performing in public. one is totally legal, the other is not.
according to the letter of copyright law, once a copyrighted work is made "public" - that, is for sale - the author retains certain rights - the right to reproduce, distribute, perform, and make derivative works.
posted by phaedon at 10:08 PM on February 17, 2007
according to the letter of copyright law, once a copyrighted work is made "public" - that, is for sale - the author retains certain rights - the right to reproduce, distribute, perform, and make derivative works.
posted by phaedon at 10:08 PM on February 17, 2007
selling pictures of paris hilton walking in public is not the same as selling a bootleg recording of a band performing in public. one is totally legal, the other is not.
Well, you're wrong. Sorry!
You're saying it would be OK to photograph the band in public, but not record them. But a recording is a recording is a recording, regardless of the medium of recording.
according to the letter of copyright law, once a copyrighted work is made "public" - that, is for sale - the author retains certain rights - the right to reproduce, distribute, perform, and make derivative works.
Not exactly, but you're on the right track. The author does indeed retain rights, as I said. For example, the rights to the song itself. But the public recording (meaning, on a street corner, where anyone can walk up) is something else entirely. It's the recording party's expression of something in the public, such a photo. Or a tape.
To use the other analogy, Paris Hilton owns her face. But you would own the photograph of that face in public. I don't own the Empire State Building. But I own the photo of it that I took in my last trip to NYC.
posted by frogan at 10:19 PM on February 17, 2007
Well, you're wrong. Sorry!
You're saying it would be OK to photograph the band in public, but not record them. But a recording is a recording is a recording, regardless of the medium of recording.
according to the letter of copyright law, once a copyrighted work is made "public" - that, is for sale - the author retains certain rights - the right to reproduce, distribute, perform, and make derivative works.
Not exactly, but you're on the right track. The author does indeed retain rights, as I said. For example, the rights to the song itself. But the public recording (meaning, on a street corner, where anyone can walk up) is something else entirely. It's the recording party's expression of something in the public, such a photo. Or a tape.
To use the other analogy, Paris Hilton owns her face. But you would own the photograph of that face in public. I don't own the Empire State Building. But I own the photo of it that I took in my last trip to NYC.
posted by frogan at 10:19 PM on February 17, 2007
Reasonable expectation of privacy does not play into it. That's just whack--that has to do with the government's ability to record you and use the recording in a criminal setting.
RAF has got it right on.
I'm a lawyer, but I am not your lawyer. Seek competent counsel, unless this is just a throwaway question, in which case, listen to raf above.
posted by Ironmouth at 10:47 PM on February 17, 2007 [1 favorite]
RAF has got it right on.
I'm a lawyer, but I am not your lawyer. Seek competent counsel, unless this is just a throwaway question, in which case, listen to raf above.
posted by Ironmouth at 10:47 PM on February 17, 2007 [1 favorite]
Speaking as a guest here of Dee, Frogan is WAY wrong. (I am an entertainment lawyer with years of experience in the music business.) But to answer the original question, it would be the performing artist who would own the rights to the performance (or rather, reproduction and distribution of the performance.) But if the artist had a recording contract, it is likely that ownership rights to that performance would have been transferred to the label if done during the term of the band's contract with the label. To give an example, if Britney Spears performed live, the rights to reproduce, distribute and sell copies of that performance would be owned by her label, Jive.
The venue would clearly have no standing at all, and the person making the recording (assuming it's not the performer or a label representative) could claim ownership of the disc or tape the recording was made on, but not the performance per se. Even if the "performance" was simply a street person playing harmonica on the corner, the person recording it would have no rights to the performance at all - except, as Phaedon points out, *possibly* for personal use only. But that is unclear, and in most places one pays to get in, there is understand to be a contract that one isn't really supposed to be recording things. It's occasionally tolerated by bands and venues, but it isn't clearly *legal* per se. Prosecution, though, is exceedingly unlikely until one takes the steps towards distributing / reproducing / selling it. Then you are a bootlegger, even if the performance was in public.
A "recording" is not a recording regardless of the medium, contrary to what Frogan maintains. One's face is not, contrary to what we might like to think, a work of art. A performance is, and *any* work of art is protected. That's why we could sell a photo we took of Paris Hilton walking down the street. She's got no expectation of the privacy of her *physical image*, at least in public. But her works are protected; we would legally be unable to reproduce a song she had sung live, or, say, a reading of her own poetry done in public. That's why when Simon & Garfunkel play live in Central Park, the only legal copies are sold via Sony.
I'm not sure why Frogan doesn't get this . . .
posted by Dee Xtrovert at 11:01 PM on February 17, 2007 [2 favorites]
The venue would clearly have no standing at all, and the person making the recording (assuming it's not the performer or a label representative) could claim ownership of the disc or tape the recording was made on, but not the performance per se. Even if the "performance" was simply a street person playing harmonica on the corner, the person recording it would have no rights to the performance at all - except, as Phaedon points out, *possibly* for personal use only. But that is unclear, and in most places one pays to get in, there is understand to be a contract that one isn't really supposed to be recording things. It's occasionally tolerated by bands and venues, but it isn't clearly *legal* per se. Prosecution, though, is exceedingly unlikely until one takes the steps towards distributing / reproducing / selling it. Then you are a bootlegger, even if the performance was in public.
A "recording" is not a recording regardless of the medium, contrary to what Frogan maintains. One's face is not, contrary to what we might like to think, a work of art. A performance is, and *any* work of art is protected. That's why we could sell a photo we took of Paris Hilton walking down the street. She's got no expectation of the privacy of her *physical image*, at least in public. But her works are protected; we would legally be unable to reproduce a song she had sung live, or, say, a reading of her own poetry done in public. That's why when Simon & Garfunkel play live in Central Park, the only legal copies are sold via Sony.
I'm not sure why Frogan doesn't get this . . .
posted by Dee Xtrovert at 11:01 PM on February 17, 2007 [2 favorites]
I'm a lawyer, but I am not your lawyer
Thank god. Because you're wrong, too.
Look, here's an overview of the rights of photographers in public. Tape recorders are same damn thing as cameras -- just a medium to record something.
Members of the public have a very
limited scope of privacy rights when
they are in public places. Basically,
anyone can be photographed without
their consent except when they have
secluded themselves in places where
they have a reasonable expectation of
privacy such as dressing rooms, restrooms,
medical facilities, and inside
their homes.
posted by frogan at 11:02 PM on February 17, 2007
Thank god. Because you're wrong, too.
Look, here's an overview of the rights of photographers in public. Tape recorders are same damn thing as cameras -- just a medium to record something.
Members of the public have a very
limited scope of privacy rights when
they are in public places. Basically,
anyone can be photographed without
their consent except when they have
secluded themselves in places where
they have a reasonable expectation of
privacy such as dressing rooms, restrooms,
medical facilities, and inside
their homes.
posted by frogan at 11:02 PM on February 17, 2007
I'm not sure why Frogan doesn't get this . . .
I'm not sure why three lawyers aren't getting this ... this is One-L stuff, fellas. Whatever.
posted by frogan at 11:04 PM on February 17, 2007
I'm not sure why three lawyers aren't getting this ... this is One-L stuff, fellas. Whatever.
posted by frogan at 11:04 PM on February 17, 2007
(Again, I am not Dee.) Frogan, try to record a performance of any sort of stature whatsoever to which you have no connection and then sell copies. Let me know, and I will happily and efficiently win any sort of legal proceedings against you. I've done it many times. No one has *ever* won a court case in America based on your 'understanding' of the law.
Cameras record images, not performances. The image of a person in public is not something one can 'protect.' Tape recorders *can* record performances. Performances are protected, even if they're made in public. See my example, per Simon & Garfunkel. You're not a lawyer, obviously, since you cannot comprehend the distinction.
In fact, I defy you to a single citation (relative to American law) for your erroneous belief.
posted by Dee Xtrovert at 11:41 PM on February 17, 2007
Cameras record images, not performances. The image of a person in public is not something one can 'protect.' Tape recorders *can* record performances. Performances are protected, even if they're made in public. See my example, per Simon & Garfunkel. You're not a lawyer, obviously, since you cannot comprehend the distinction.
In fact, I defy you to a single citation (relative to American law) for your erroneous belief.
posted by Dee Xtrovert at 11:41 PM on February 17, 2007
For those of us who are not lawyers, I think this difference of opinion has to do with what a "work" is under copyright law.
This publication for the layman may be of assistance. IANAL but based on what I know, Dee's friend is right and Frogan is wrong.
One thing is that copyright protects “original works of authorship”. Your face is not a work of authorship; you own it, but you didn't create it as a conscious activity, so it can't be copyrighted.
posted by Steven C. Den Beste at 12:34 AM on February 18, 2007
This publication for the layman may be of assistance. IANAL but based on what I know, Dee's friend is right and Frogan is wrong.
One thing is that copyright protects “original works of authorship”. Your face is not a work of authorship; you own it, but you didn't create it as a conscious activity, so it can't be copyrighted.
posted by Steven C. Den Beste at 12:34 AM on February 18, 2007
[However, it may be possible to patent your face based on some truly gawdawful SCOTUS decisions relating to genetics research. And yes, I'm joking, but only about half way.]
posted by Steven C. Den Beste at 12:36 AM on February 18, 2007
posted by Steven C. Den Beste at 12:36 AM on February 18, 2007
I'm not interested in bootlegging. I'm interested more in whether or not a night club sound guy could record something and then sell it, with or without the consent of the Band. I'm interested in if the Record Company has any standing at all.
This is what is known as bootlegging......
posted by peewinkle at 12:53 AM on February 18, 2007
This is what is known as bootlegging......
posted by peewinkle at 12:53 AM on February 18, 2007
Response by poster: peewinkle: You're right. I wasn't clear. What I meant was I'm not interested in fans making recordings and sharing them on youtube or p2p networks. I suppose it's the same if the sound guy does it without the knowledge of the band, but if he does it with their knowledge, and even cuts them in on the profit, that's something else entirely.
posted by jeffamaphone at 1:56 AM on February 18, 2007
posted by jeffamaphone at 1:56 AM on February 18, 2007
frogan, reasoning by analogy from photography in public to audio recording in public doesn't work, because copyright law treats those as separate cases. Expectation of privacy is a meaningless term in copyright law. See, e.g., Laws v. Sony Music Entertainment, Inc., 448 F.3d 1134 (9th Cir. 2006) (Copyright Act preempts plaintiff's claims for right of privacy and right of publicity in sound recording).
Anyway, you are right that there is no copyright in a particular performance until the performance is fixed in a tangible medium. You are wrong, however, that the copyright thus inheres in the person who recorded the performance. It inheres in whoever the author of that performance — whoever contributed creatively to making that particular performance of the work. And that (1) definitely includes the performers under all scenarios, and (2) would only include the recorder to the extent the recorder put any creative work into making the recording. So the guy who does a live concert mix has rights to that particular mix; the guy with a tape recorder has no rights because he hasn't contributed any creative elements. (The mixer's copyright is what is called a "thin" copyright because it applies only to whatever is added by the mixing; he would have no claim to someone else's recording of the same event.)
For instance, this page hosted by the copyright office of the Library of Congress says:
(Again, IAAL [and I even practice copyright law], but I am not your lawyer and this is not legal advice. Consult competent counsel.)
posted by raf at 8:37 AM on February 18, 2007
Anyway, you are right that there is no copyright in a particular performance until the performance is fixed in a tangible medium. You are wrong, however, that the copyright thus inheres in the person who recorded the performance. It inheres in whoever the author of that performance — whoever contributed creatively to making that particular performance of the work. And that (1) definitely includes the performers under all scenarios, and (2) would only include the recorder to the extent the recorder put any creative work into making the recording. So the guy who does a live concert mix has rights to that particular mix; the guy with a tape recorder has no rights because he hasn't contributed any creative elements. (The mixer's copyright is what is called a "thin" copyright because it applies only to whatever is added by the mixing; he would have no claim to someone else's recording of the same event.)
For instance, this page hosted by the copyright office of the Library of Congress says:
Generally, copyright protection extends to two elements in a sound recording: (1) the contribution of the performer(s) whose performance is captured and (2) the contribution of the person or persons responsible for capturing and processing the sounds to make the final recording.One more point: The claim that the person who records an event has a right to sell that recording irrespective of the copyright status of the recording is very, very wrong. In addition to the copyright problems, distribution of an unauthorized recording of a public performance of a copyrighted work is a crime under 18 USC § 2319A.
(Again, IAAL [and I even practice copyright law], but I am not your lawyer and this is not legal advice. Consult competent counsel.)
posted by raf at 8:37 AM on February 18, 2007
I don't own the Empire State Building. But I own the photo of it that I took in my last trip to NYC.
That doesn't give you the right to sell it to anyone however you wish, though. For instance, you can take as many pictures as you want of Nassau Hall. You cannot, however, sell them to anyone—Nassau Hall is trademarked. Granted, that's not a question of copyright, but copyright isn't necessarily the only thing at play in photography.
posted by oaf at 11:40 AM on February 18, 2007
That doesn't give you the right to sell it to anyone however you wish, though. For instance, you can take as many pictures as you want of Nassau Hall. You cannot, however, sell them to anyone—Nassau Hall is trademarked. Granted, that's not a question of copyright, but copyright isn't necessarily the only thing at play in photography.
posted by oaf at 11:40 AM on February 18, 2007
Similarly, the nighttime illumination of the Eiffel Tower is copyrighted, so you can't sell pictures of it. But the daytime appearance is in the public domain.
posted by beagle at 2:29 PM on February 18, 2007 [1 favorite]
posted by beagle at 2:29 PM on February 18, 2007 [1 favorite]
Phaedon says, "If you own the copyright to your own work, you have the exclusive right to perform that work. No one else can perform it without your consent."
That's true only until you record it and release the recording commercially. After that point, anyone else can record it legally by paying the appropriate "compulsory license" (or negotiating a lower licensing fee with you or your representative). This is called the right of first recording.
posted by lorimer at 12:45 PM on February 19, 2007
That's true only until you record it and release the recording commercially. After that point, anyone else can record it legally by paying the appropriate "compulsory license" (or negotiating a lower licensing fee with you or your representative). This is called the right of first recording.
posted by lorimer at 12:45 PM on February 19, 2007
raf and "guest of Dee" have pretty much nailed this down. It's important to note that the criminal statute is disjunctive. The mere unauthorized fixation (even without a sale) is a crime.
Even if the "performance" was simply a street person playing harmonica on the corner, the person recording it would have no rights to the performance at all - except, as Phaedon points out, *possibly* for personal use only.
This is correct if the fixation is unauthorized. Copyright ownership gets really interesting when the fixation is authorized and the "producer" contributes minimal creative elements to the recording. See here, for example.
I highly recommend reading William Patry's posts on bootlegging.
I am a lawyer practicing copyright, trademark, and entertainment law, but I am not your lawyer and this is not legal advice. Please consult competent counsel.
posted by anathema at 4:34 AM on February 20, 2007
Even if the "performance" was simply a street person playing harmonica on the corner, the person recording it would have no rights to the performance at all - except, as Phaedon points out, *possibly* for personal use only.
This is correct if the fixation is unauthorized. Copyright ownership gets really interesting when the fixation is authorized and the "producer" contributes minimal creative elements to the recording. See here, for example.
I highly recommend reading William Patry's posts on bootlegging.
I am a lawyer practicing copyright, trademark, and entertainment law, but I am not your lawyer and this is not legal advice. Please consult competent counsel.
posted by anathema at 4:34 AM on February 20, 2007
This thread is closed to new comments.
(IAAL, but I do not represent you, and this is not legal advice.)
posted by raf at 9:02 PM on February 17, 2007 [1 favorite]