Do I have complete copyright over an image of a band's setlist?

May 15, 2008 3:12 PM

What copyright restrictions may or may not be placed on me of a picture I took of a band's setlist during a live, public performance?

I'm in an odd situation. A band manager stole a picture of mine that I took during a live public performance. She then placed it in a video without credit. She tried to claim 1) that she was free to use it since I posted it on myspace and 2) that she has full right to use it because its of her band's intellectual property. I've already informed her that just because the image was uploaded on myspace that it doesn't make it fair game, myspace does respect copyrights, but where do I stand with the picture of the setlist? Is it mine or is it theirs?

posted by ozreiuosn to law & government (31 comments total)

She's wrong. The first level of copyright belongs to the person who took the picture. Period, end of story. However, if you were to use the picture for any commercial purpose, you would have to get permission from the people in the picture (in the case, the band). However, that's different than intellectual property. The IP is yours, because you took the picture.
posted by Caduceus at 3:20 PM on May 15

Technically? The setlist is theirs. The picture is yours.

But why fight this battle? What do you have to win from claiming copyright over the image?

In the age of the internet, it's impossible to protect an image that you've put up for public consumption -- even if the law is technically on your side in some cases. This is why Getty Images, for example, only puts low-res images up on the web, and even then still watermarks them with its logo...
posted by twiggy at 3:20 PM on May 15

Set list? That's an idea secured in a fixed medium of expression, right? The author holds a copyright; you made a photostatic reproduction of said copyrighted material.
posted by mr_roboto at 3:21 PM on May 15

She's wrong. The first level of copyright belongs to the person who took the picture.

So if I took a picture of a monitor displaying ozeriuosn's picture, I would then hold the copyright? It's not that simple.
posted by mr_roboto at 3:24 PM on May 15

If it's a picture of a setlist as in a list of songs, I'm 99% sure that the picture is all yours and none theirs. The band has intellectual property of the songs, but not of a string of words that happens to be in the correct order to tell people what songs were played in what order. If that were the case nobody could ever post a setlist online.

Get a lawyer and get your money. And if you know the people in the band or care about their future at all, try to discreetly suggest that they get a manager who fully understand copyright law.
posted by theichibun at 3:25 PM on May 15

Its not a matter of winning anything, its just a picture I really don't care, but its the principal of the thing. For this woman to flat out say that I'm in the wrong about everything is a sign of a bad manager and I worry about the band's future, and what else she may or may not have taken.

I just want to warn/inform her.
posted by ozreiuosn at 3:27 PM on May 15

Were cameras prohibited during the live performance? Was this outside in public where anyone can take a picture, or was this taking place in a private place?
posted by toaster at 3:32 PM on May 15

It's yours. Appropriation without recognition happens every minute of every day. Is it cool? No. You're in the right, but it's really not worth fighting over. A crappy picture of a set list? I surprised you even emailed them in the first place.

I would also refrain from firing off more emails to the band members or managers. It comes off as tattle taling. They are not going to care about a STOLEN!!! picture of a set list I'm all for intellectual property rights, but come on.

If it's really about the principal of the thing, then go for it all. Lawyer up!
posted by yeti at 3:33 PM on May 15

@toaster: Cameras were not prohibited. This was a live public performance in a public venue.
posted by ozreiuosn at 3:33 PM on May 15

For this woman to flat out say that I'm in the wrong about everything is a sign of a bad manager and I worry about the band's future, and what else she may or may not have taken.

I just want to warn/inform her.

If I were you I'd be talking to the band about it if you're really concerned. If she's the bad manager you believe her to be, she's unlikely to respond well to constructive criticism.
posted by mumkin at 3:42 PM on May 15

I think a lot depends on the nature of the setlist. If it was written in a unique style (i.e. handwritten) then the law would probably hold your photo is a derivative work of the set list and therefore you do not own the intellectual rights to the photo. The situation would be analogous to taking a photo of a painting. The photo would be a direct infringement of the painting and the photographer could not assert rights against the painter regarding the photo.

The argument is weaker if the setlist was say printed as a Word document. The stylistic elements would therefore be noncopyrightable and the band has less a stake in the material. Still, a copyrightable work need merely be fixed and marginally original, presumably a setlist would qualify.

Now, if there is more in your photo than just the setlist you own the copyright to all of that. You own all elements of the photo that are not the setlist.

I'm a shitty lawyer though.
posted by norabarnacl3 at 3:48 PM on May 15 [2 favorites]

So if I took a picture of a monitor displaying ozeriuosn's picture, I would then hold the copyright? It's not that simple.

If the monitor was in a public place, then yes it would be that simple (in some jurisdictions there may be an issue of privacy but a setlist isn't a person )
posted by missmagenta at 3:48 PM on May 15

IANAL, but I know copyright applies only to creative works; I doubt a setlist would qualify. Perhaps you could refer the manager to Stanford University Libraries website about copyright.
posted by PueExMachina at 3:50 PM on May 15

@yeti: You're right, I'm not going to get all huffy puffy about this, all it was in the beginning was just a nice cautionary warning. This all has been a good learning experience not just for me, but hopefully for her and the band. As I told her, that this will happen again, it happens all the time, but others may not be so nice about it.

@mumkin: Good idea, but at the same time I'd feel that I was going over the band manager's head and ratting her out to the band.

Either way, what is done is done, so far everything has been friendly, and she's even expressed interest in hiring me. Ha! Wouldn't be a bad idea considering I'm a tad more informed than she is.
posted by ozreiuosn at 3:51 PM on May 15

A set list is a set of titles. To my the best of my knowledge you can't copyright a title.

The picture is definitely yours. But I'm concerned about the venue. You are correct that public spaces are fair game, but defining that could get tricky. Open air doesn't mean public. Did anyone pay to get in? You need to be sure that the property the event took place on isn't privately owned or wasn't rented. If that's the case, you are absolutely correct. Neither she nor the band has any claim on the image.
posted by Toekneesan at 3:57 PM on May 15

I think a lot depends on the nature of the setlist. If it was written in a unique style (i.e. handwritten) then the law would probably hold your photo is a derivative work of the set list and therefore you do not own the intellectual rights to the photo. The situation would be analogous to taking a photo of a painting. The photo would be a direct infringement of the painting and the photographer could not assert rights against the painter regarding the photo.

I can somewhat see that, but what if I were to write up a grocery list and then post on a wall of a bar. If someone took a picture of it, I can't claim copyright because its in a public venue.
posted by ozreiuosn at 3:59 PM on May 15

It's hard for me to see how an original set list would not be a creative work. Maybe not if you were just recording the facts of what some band had played, but to actually come up with the order requires some creativity and hopefully skill.
posted by grouse at 4:01 PM on May 15

If someone took a picture of it, I can't claim copyright because its in a public venue.

That's nonsense. A library is a public venue, but you can't go around libraries taking pictures of pages of art photography books and posting them on your website.
posted by mr_roboto at 4:02 PM on May 15

If the monitor was in a public place, then yes it would be that simple (in some jurisdictions there may be an issue of privacy but a setlist isn't a person )

But if it is a fixed expression of an idea, its a copyrighted work, and one cannot make and distribute photographic reproductions of it without the permission of the copyright holder. The act of photography does not magically transfer the work's copyright to a new owner.

I agree that there is room for debate over whether a set list is a copyrightable work, but if it is, the photograph does not transfer the copyright over that work to ozreiuosn.
posted by mr_roboto at 4:06 PM on May 15 [1 favorite]

Did you buy a ticket to the concert? It's entirely possible that the ticket included something in the fine print that gave them (And anyone they authorize) rights to any works photographed or recorded on their premises.
posted by drezdn at 4:14 PM on May 15

Just FYI, a bar is not necessarily a public venue, just as a mall isn't in the recent question about making a movie.
posted by drezdn at 4:15 PM on May 15

Yet another IANAL.

My understanding is that anything that is created by anyone nowadays (a grocery list, email, novel, song, etc.) is under copyright. If you want to sue someone in federal court and get monetary compensation from violators of your rights you have to file a copyright notice with the federal government.

So, I would say that your picture is a derivative work of an object created by (and therefore under copyright with) someone else. If you use it non-commercially, I'd sincerely doubt anything would happen to you. Even if the band did decide to come after you, all they'd really be able to do is prevent you from using the image in any way.

As to the "in public argument" try shooting a film on a city street or while a stereo is playing and see how quick C&D notices show up. Sure, you can claim fair use, but fair use is not a right; it's a defense in federal court. If you're already at that point you've got problems that fair use will not take away.
posted by justnathan at 4:18 PM on May 15

fair use is not a right

There is disagreement on that.
posted by grouse at 4:22 PM on May 15

"If the monitor was in a public place, then yes it would be that simple (in some jurisdictions there may be an issue of privacy but a setlist isn't a person )"

Umm.... no. Not even close to being in the same zip code as correct.

Copyrighted things do not lose protection when displayed publicly. In fact, that's the whole POINT of copyright -- to allow authors to share their work with the public without fear that it will be appropriated by others. So not only is your theory wrong, it's actually antithetical to the nature of copyright.

Just go ahead and mark norabarnacl3's answer as best. It hits pretty much all of the major points. The rest of the advice in this thread you can probably just ignore because it is, by and large, crap.
posted by toomuchpete at 4:29 PM on May 15

Get a laywer to shoot off a letter telling them to remove the photo from the video and/or website. You do have a lawyer on retainer right? :)

Or you can dummy up a letter on fake letter head and try to spook them. Either way they will probably ignore you unless you actually file a suit.

I don't think this is an indication that she is a bad manager. I think it's an indication that she knows they ain't a hell of a lot you can/will do about it.

Kick froggy and churn that cream into butter!
posted by wrnealis at 4:51 PM on May 15

toomuchpete: "

Just go ahead and mark norabarnacl3's answer as best. It hits pretty much all of the major points. The rest of the advice in this thread you can probably just ignore because it is, by and large, crap."

So are you arguing you can claim copyright on a title?

How do you explain this?
posted by Toekneesan at 5:08 PM on May 15

Toekneesan: you are arguing that because a set list is merely a composition of uncopyrightable titles, it cannot be copyrighted. By the same argument, a poem could not be copyrightable because it is a composition of uncopyrightable single words. Needless to say, this argument does not hold water.
posted by grouse at 5:40 PM on May 15

So are you arguing you can claim copyright on a title?

Are you arguing that I could name my next novel "Harry Potter and the Sorcerer's Stone"?
posted by mr_roboto at 5:51 PM on May 15

I'm arguing that titles are not something anyone can claim a copyright on.

I believe Harry Potter is trademarked, which is different than a copyright. You could try and title your book Henry Potter and the Sorcerer's Stone, but the courts could find you intended to mislead.

See question 6 on this FAQ from the copyright office dealing with titles.
posted by Toekneesan at 6:02 PM on May 15

This also notes that lists are not protected by copyright.

An argument might be made that that the list has some creative element that could be protected, but I'm not aware of any cases involving a set list so who knows. But I think you would need to argue that the list was the work, not the order of the music in the performance.

The problem with copyright is you don't generally know absolutely about these fringe issues until you've lost in court.

Same's kind of true with fair use. It's not so much a right as a defense.
posted by Toekneesan at 6:16 PM on May 15

Copyright in the photo belongs to you and to no-one else, unless you signed an agreement stating otherwise. The fact that it is a photo of the band or of things belonging to the band has no effect on this. The fact that it appears online with your permission has no effect on this.

Dealing with a couple of myths:

Yes, there is such a thing as fair use and it is guaranteed by federal law; see 17 USC § 107 for details. No, using someone's photograph in a commercial music video is not fair use.

Yes, you can recover damages even if you haven't federally registered your copyright; registering merely opens up new types of damages you can ask for. Generally, if someone has profited from inappropriate use of your copyrighted work, you can recover actual damages -- in the form of the money they made -- regardless of whether you've registered.
posted by ubernostrum at 8:07 PM on May 15