Legal rights and responsibilities -- revisited

[Greg Miller]

I'd like to consider the question of rights, performance payments, etc., from a few different perspectives. I know this has been touched on before, but perhaps my question approaches it from a slightly different angle. Past discussions have often concerned using commercially released music (e.g. snips of commercial CDs) within someone's wedding video. I'd like to consider a few different scenarios.

1.) I'm a staff employee of a radio station, and I am assigned to go out and record a local concert by a musical group, for broadcast on said station. All the music is performed by this one group, although some may have been written by others. The station has obtained a signed release from the group, but not from anyone outside the group who might have written some of the songs. Do I (as an employee) have any legal jeopardy, or any responsibility to make any rights payments?

2.) Envision the same situation as #1 above with this exception: I am a local contractor, hired by the same station, to record the same concert. What's the legal situation?

3.) Now envision the same situation as #2 above, and the musical group asks for a copy of the recording, to be used in a promotional video of them, or to be used in a documentary about them. What's the legal situation?

4.) If I'm an employee of a conference center, assigned to record a presentation or panel discussion on site, do I (as an employee) have any legal responsibility to obtain signed releases from the participants?

5.) Envision the same situation as #4 above with this exception: I am a local contractor hired to make the same recording. What's the legal situation?

I realize this is not a legal forum. Still ... I would appreciate any thoughts on these variations, especially based on people's past research or experience.

[Seth Bloombaum]

Not a lawyer - not offering legal advice - just what I've learned, perhaps in error.

Most (all?) radio and TV stations in the US have blanket annual agreements with ASCAP and BMI, which ought to cover composers' rights when any recording is broadcast. (note that ASCAP/BMI don't issue synchronization licenses, but, as a recordist, you're not syncing, right?)

"Ought to..." is a bit suspect, because not every composer is represented by ASCAP/BMI. But that's the primary licensing system.

Anything you do as an employee within the lawful direction of your employer *ought* to be at your employer's liability.

As much as the big record companies and other content owners would like to prevent unauthorized copying or recording, the real liability attaches to those who publish or distribute without license work that belongs to others.

As a contractor who is involved in recording only by direction of others... I think the liability, if any, would still be theirs *if* they publish or distribute. I might add something like this to a confirming email: You've contracted me to record XYZ at their performance on October 15, 2016; you've secured any needed clearances or licenses. Please send information about who issued that clearance, and what is covered, in case I am asked for it. Am I allowed in early? Can I go backstage? Who is my on-site contact?

On the other hand, you can be trespassed from events that don't want you recording there, sometimes with prejudice. Even if you are cleared to record you may need specific info about who issued that clearance... and, their right to give you clearance may not be recognized.

At least that's what I learned prior to passage of the Digital Millennium Copyright Act.

[Roger Gunkel]

Copyright generally can be a very complex and diverse subject with many ways to interpret different situations. For instance, providing I have permission to film in the premises, it would be difficult to be seen as infringing copyright if I was recording the performance only and doing nothing else with it. If I am not making a profit from the sale of the work, or preventing sales of the work by giving copies away, or showing it to others to save them paying to see a performance, then it is hard to see that copyright is being infringed.

However, the moment somebody profits in some way from the recording, or prevents or impedes the copyright owner from potential earnings by selling or showing the performance, then copyright is being infringed. If I charge money for filming a performance, then I am not earning money at the expense of the performer, I am charging for my time and use of equipment. If I was recording an empty theatre, it would make no difference to the use of my time and equipment, so I am not profiting from the performance itself.

When it comes to any sales or showings of the recorded performance itself, there are likely to be a number of copyright areas. The performance rights of the artiste, the arrangement rights if the artiste copied an existing arrangement, the publishing rights of the writer and/or publisher and of course the mechanical recording rights of the work that you have produced. All of those rights could be seperately owned or all under the umbrella of one organisation. The licensing itself can be further complicated by any number of sub licenses based on the number of sales or showings of the finished work, the media that the work is distributed on and the territory in which it is distributed or shown.

If you are recording a performance and handing the recording over, then the copyright and licensing problems should be the worry of someone else. I am also not a lawyer or quoting legal fact, just the experiences I have picked up over decades in the music and recording industries. Most countries have organisation that handle all of the copyright administrations, such as in the UK with the MCPS, BMI, and PRS. They have reciprocal arrangements with other countries and are usually very helpful with enquiries.

Roger

[Kyle Root]

This is an interesting thought. We were filming a marching band competition yesterday. A big one. Bands playing all kinds of songs, classical to modern pop. We film and sell the DVDs to the kids. I've always kind of wondered how all that works. Same thing with dance recitals. They use radio music for all the dances and in some case have themes like from Disney. Yet we sell those to the kids too. Interesting discussion for sure.

[Richard Crowley]

Free legal advice is worth LESS than you paid for it. Never base decisions in Real Life on advice from the internet. That being said...

1) If you are a proper employee of the radio station, then you personally have virtually no liability. When you say "The station has obtained a signed release from the group" that likely covers only the performance rights, and not the rights to to any music they didn't write themselves (i.e. "covers"). The recording is a "work for hire" and belongs to the radio station who paid you to make it. However, they have no legal right to do anything with it without the proper release/licence from the rights holders. The people who own the rights to the music, and the performers themselves who own the rights to their performance. Essentially all radio/TV stations pay for blanket licenses to broadcast music owned by members of ASCAP, BMI, SESAC, et.al. in the United States. And a long list of performance rights organizations in other countries. That pays the "performance" rights to broadcast the music. You can find a list of performance rights organizations here: https://en.wikipedia.org/wiki/List_o...tion_societies

2) If you are the "contractor" (not really a proper legal definition, but we will make asumptions), then the radio station is probably putting the burden on YOU to collect the legal signatures of all the performers to allow the station to use the recording of their performance. It may also include granting the radio station the right to broadcast their own original music. But they do not have the authority to grant license/permission to do anything with music owned by others.

3) The rights to their performance of the recording are one thing. They own that and they have the right to give it away or sell it as they wish. Same with the rights to their original works. They also own the recording of their "cover" music. But they don't own the physical media (tape, SD card, hard drive file, etc.) unless they pay for whomever made it (you, or the radio station if you were paid to do it). And they don't have the right to DO anything with the recording unless they own the rights to the songs (typically their OWN songs, not covers). So you (or the radio station if they own it) can give or sell a copy of the recording to the performers. However the performers don't have the right to DO anything with that recording unless they own (or buy) the rights to the music. They could legally use their OWN music in a promotional video, but they don't have the right to use cover music in a promotional video unless they pay for the proper license.

4 & 5) Questions cannot be answered as stated because it depends entirely on what is DONE with the recording. If the recording is given (or sold) back to the participants/organizer of the panel discussion, then you are likely absolved of any responsibility. They own the content of their own "performance" (meeting, discussion, concert, whatever). But if the recording is going to some 3rd party, that is a very different matter.

Remember that there is a "bundle of rights", it is not as simple or linear as we would like it to be. Different rights include (but not limited to):
* Composer/writer's rights. This is often sold to a 3rd party (label, agent, etc.)
* Performers' rights. The right to use a recording of their performance. Not the same as the right to use the content.
* Recording ownership. The person who made (or paid for) the recording owns the recording, but not the content of the recording.
* Performance rights. In many (most?) places, you must have permission (license) to "perform" a piece of music in public.
This includes broadasting which is legally a "performance" This also includes playing "background" music in a shop or restaurant, etc.
Live streaming is another type performance right/license.
* Mechanical rights. The right to distribute copies of an audio recording. On wax cylinder, vinyl disk, cassette, CD, etc.
Listening and/or downloading on-demand is a specialized type of "mechanical rights.
In the USA, mechanical rights are compulsory after the premiere recording is released. And rates are set by law ("statutory"). It is relatively easy to buy mechanical license online for example from the Harry Fox Agency, etc.
* Sync rights. The right/license to use music in a film or video. At least in the USA, this has been a very sticky wicket for a long time, but things seem to be getting more sane recently. Other countries have mechanisms for Sync License similar to the compulsory/statutory law in the USA for Mechanical (audio only) licensing.

This is only an amateur summary from the POV of the USA. Copyright laws and mechanisms for licensing can be quite different in other legal jusrisdictions despite the fact that most civilized parts of the planet use the Berne Convention to normalize copyright management.

[Mike Watson]

Originally Posted by Kyle Root

This is an interesting thought. We were filming a marching band competition yesterday. A big one. Bands playing all kinds of songs, classical to modern pop. We film and sell the DVDs to the kids. I've always kind of wondered how all that works. Same thing with dance recitals. They use radio music for all the dances and in some case have themes like from Disney. Yet we sell those to the kids too. Interesting discussion for sure.

My impression is that this flies against copyright laws, but it's so small time that I've literally never heard of anyone getting popped for it.

[Boyd Ostroff]

Originally Posted by Mike Watson

it's so small time that I've literally never heard of anyone getting popped for it.

I wonder if this will change, we are living in the age of copyright trolls now. And 24/7 scanning for this kind of thing is the perfect job for AI. Even if they can't beat you in court, it will be cheaper and easier just to pay them off.

[Paul R Johnson]

Here in the UK, the problems start when something is done with the copyright material. The actual recording process collects the 'work' that is covered by rights. As soon as the work is exploited in any way, the line is crossed, but as recording, and even editing, if kept safe and sound, is not exploiting - we're safe.

I've actually got some good examples in my own archive here - I'd love to let people hear them (and I'd do it for free because I do not like the person I recorded) but that would be the exploitation bit, and I cannot do it.

I'd guess the US is similar. If your boss, or client gets you to do something illegal and you do it - then the deed has been done. Recording isn't illegal, and it's clear impossible for the person doing it to chase down ownership in the material they may not even have heard until they arrive!

[Steven Digges]

This is always what makes this conversation so difficult. Laws are laws and they are black and white. The real world is very gray. The laws are complex and almost all encompassing. In many cases the real answer to "can I do this or not" will come down to the "attitude" of the rights holder. Those attitudes vary as much as the personality behind them.

I think a couple of you know I have been working in ballroom productions and professional sports for well over twenty years. So I can address #4 above. Ninety percent of the time there is ZERO consideration given to rights violations that that take place within the ballroom. Trampling copyrights is an everyday occurrence in ballrooms all over America. Even though I am no lawyer either, I am a guy that has had to tell my clients many times "you cant do that". I am a grey area type of individual. In most situations I follow a rule of thumb that says if we create and use restricted content it is for live use in the ballroom only. It plays there and stays there. No one is profiting from it so it has never been a problem in that use. These days I am constantly telling them "No, you can not put it up on your website after the event is over". I could go on and on about this. Sometimes I am telling executives from very large corporations that they will be breaking they law and some of them don't like hearing the truth. They want to do it anyway. It shocks me. Especially because they have deep pockets and can become a true target for retaliation.

Attitudes: What I learned. Once in a while I have to book small to medium recognized talent to speak or perform at my corporate shows. These are usually people or groups that can command $30,000.00 to $50,000.00 for their one hour appearance. You never deal with the talent before the day they show up, You deal with their booking agency or in some cases they have a personal assistant that handles everything for them. These corporate events are video recorded and I-mag is almost always in place. During the contract phase of working out details of the fees, conditions and rider the booking agency almost always takes a hard line on the video cameras in the room. Even if I get shut down on recording I never give up until show time. When the talent arrives I am the first person they meet in the green room. If I was not able to get the video rights I wanted from their handler I take it up again at that time and you might be surprised how often I get what I want straight from the talent.

I can also tell you it is totally unpredictable. That is why I say it is about attitude. Leonard Nemoy (3 years before his death) and Cal Ripken Jr. are true professional gentlemen and a pleasure to deal with. I have booked far less recognizable names that were a total PIA I would never book again but will not name.

Rights is a sticky and difficult issue for all of us. And by the way, booking celebrates is not something I do a lot. It is just part of what I have done I do NOT want to sound like I know a lot about it. Just commenting from my small experience.

Kyle, companies have reputations and attitudes too. Two of the large companies that have a reputation for violently defending their rights are Disney and NASCAR. Micky Mouse has no problem crushing the little guy ;-) ;-) ;-)

Steve

[Roberto Diaz]

(with the usual disclaimer that i am not an attorney and not giving legal advise...)

I seem to recall that violation of a copyright has nothing to do with whether or not you are making a profit or making or selling a recording for a fee. making a recording for free or giving a copy of a recording for free does not mean you are not violating copyright.

copyright law is intended to give the author of a work (the composition, the performance, the instrumentation) control over their creation... who records it, who plays it, who broadcasts a recording of it, who makes a derivative work from it... whether it is for fun, for free, or for profit.

there are blanket exceptions, i believe, such as grade schools and high schools in the US who can perform works without paying license fee, music educators who use recordings of performances for instructional purposes, etc.

that's my understanding and i may be wrong-- another disclaimer :-)

[Paul R Johnson]

The problem is that (certainly in the UK) this is a matter dealt with by our civil law system and not the criminal law version, so there are no standard 'fines', but the punishment is based around the real loss and damage to the person having their rights abused.

With the expense of the legal system, if nobody has actually lost anything, money or perhaps reputation, then court is pointless - what would be awarded where no harm has occurred? You may well have recorded a bootleg recording of your favourite band, and played it to your friends - but did the rights owner lose anything? This is where a court would scratch their head? You did it. You owned up, but did nothing with it? Would anybody actually go to court with this?

[Boyd Ostroff]

Originally Posted by Paul R Johnson

Would anybody actually go to court with this?

The other question is, if somebody threatens to take you to court, how much would you pay just to make them go away? It would probably be a choice between paying that or a similar amount to consult an attorney.

I have seen this firsthand on a site I work for, although it was printed material and not video. A forum member posted a scan of an article from a 40 year old small local newspaper. The newspaper has been out of business for 20 years or so. But another company now owns the copyright to the contents of that paper.

In addition to taking down the article, the site owner got into some legal fees to settle this, and now we are very careful about any content that users post on the site.

[Steven Digges]

The one time one of my images became a “copyright issue” was devastating to me. This is about still images and a recording artist, I think it is relevant to a discussion of rights. I have always worked in both stills and video. At one time I spent seven years as the official track photographer at Phoenix International Raceway. That track is owned by the parent company of NASCAR, International Speedway Corporation.. I was a private contractor, they were my client. I worked for the communications director and my still images went out over the wire and many other things, they had all rights to them.

Again, please read this without thinking my ego is involved, it is not. I do not tell this story often, it’s embarrassing. You will laugh at me or if your kind feel my pain.

Several years ago I was sitting on my couch watching a Sunday football game with my wife. A commercial came on and after watching the 30 second spot I was ecstatic. What I saw was unbelievable to me. In this day and age of wiz bang video NASCAR’s advertising agency had created a 30 second add to promote the Phoenix race coming up in two weeks. The TV spot was composed 100% from my still images. I could not believe my eyes! I was so excited I could not see straight over what an amazing portfolio chip that was going to be! I am far from a rookie and my images have been published worldwide many times. But this was a NASCAR TV commercial composed entirely of my work at the track. It was a dream come true. I could not ask for something cooler than that to showcase my work.

My head was spinning about how I was going to use that 30 seconds to promote my business. I saw the spot run three more times that Sunday afternoon. On Monday morning I called my boss at the track and said what’s going on and why didn’t you tell me about this? He said “oh yea, I meant to mention it to you but I forgot. In the next two weeks you’re up front. We are going to blitz the Southwest States with that add to promote the race. It will air again tonight on Monday football in our region. I went crazy! I wrote a press release announcing the news that that The Corporate Show had assisted NASCAR in creating this commercial presentation that my clients and potential clients would be able to see on Monday Night Football. As I waited to see my spot run on Monday night football (recorder cued) it never played.

I called my boss and said “what happened?” He said “we had to pull it, it is gone now, we can’t use it anymore.”

The reason they used my images for the spot is because I had a very large body of work that included everything they needed for the story. When you work for the agency that hosts the event your job is about far more than just the on track action and driver photos. The action may be number one but there is a very high priority on sponsor support and the fan experience. You have to get it all. A major NASCAR race is not just three hours of on track action. It is a three day festival for the hard core fans. The tracks provide lots of other entertainment for those three day fans.

This is why it went south. After one of the races I had to cover a concert performance from a Jon Bon Jovi tribute band. To show the fan experience I got on the stage and shot the front man from the back to show all of the fans. The Bon Jovi impersonator was wearing a jersey that said Bon Jovi on the back of it just like an athletes name would appear. Within 24 hours of the first broadcast airing Bon Jovi’s camp called NASCAR and said you are implying he appeared at your track and he never did. Cease and desist. Which they did, NASCAR will never intentionally violate someone else’s copyright.

To this day I do not have a copy of that commercial, I tried hard, they would not release it to me. So there you go. My 30 seconds of fame went down in flames just like that…..

Steve

[Greg Miller]

I thought you were going to say you needed model releases from everybody in the audience!

Why didn't they just gray out the name on the guy's jacket, and let it run like that?

[Steven Digges]

I can only guess that the oversight was by some genius at the advertising agency. They never even considered it. But it was a wide angle shot, I was standing three feet behind him on the stage, the name was center shot. The fans were going crazy, just what I was supposed to shoot! I was the only photographer with that kind of access because I was the track photographer. I suppose it is possible the advertising agency did not even know it was a tribute band. I shot a lot of big names out there. Not unusual at all.

Steve

PS We are talking about copyrights here. Im sure that band got paid VERY well. How do these tribute bands get away with what they do? I can't imagine the ones playing in local pubs are paying the big bucks for a licence? And this was not a small pub gig. There was probably 10,000 fans watching it. And as I said NASCAR does not infringe on copyrights. I do not know the legal things that went down behind this. I was just the hired hand. No one cares about that. But when NASCAR broadcast it on the air the crap hit the fan.