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Live performance video query
Video copyright ownership and unauthorized recording of live music performances.
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AndyJ
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PostPosted: Fri Jan 21, 2011 6:44 pm    Post subject: Reply with quote

Hi Julia,
It is worth clarifying that althougt they are covered by the Copyright, Designs and Patents Act (and its subsequent amending regulations) what you are talking here are two separate things: Copyright (in the words and music) and Performance Rights which lead onto Recording Rights. The performer(s) generally own the right to exploit their performance (either in the studio or live on stage) through recordings, ticket sales etc, and the record company generally owns the right to exploit the recording, in record sales, airplay and public performance of the recorded music (eg a DJ or a funfair providing music as background) The performance right and the recording right are known as economic rights and are covered in Part 2 of the Act.
There's no one standard answer to your question, as each record company may have a different policy with regard to its contracts. And a well established band with more clout may well have a diffrerent contract to a newly signed band.
In most cases the record label will insist that the band signs over their rights in performance of the songs - usually the recorded (studio) performance but this may also include live gigs - but without any copyright in the lyrics or music being affected. In exchange the band will probably receive an advance and royalties based record sales and airplay revenues etc. Session musicians are usually paid a flat fee and sign over their performance right without getting royalties, although this is not always the case.
As some bands nowadays can make more money from touring and live gigs than they do from record sales, the record companies are trying to muscle in on the live performance revenues which previously would have been the province of just the band, their management and the promoters or individual venues.
So you would need to check with the band's management in each case. It would be sensible to make sure that when you get the written permission to record the performances this includes a statement indemnifying you from liability for any infringement of the performance right of any third party. This won't entirely protect you, but it will provide you with a defence under Section 182(3) which says:
Quote:

"(3) In an action for infringement of a performer’s rights brought by virtue of this section damages shall not be awarded against a defendant who shows that at the time of the infringement he believed on reasonable grounds that consent had been given."

So in other words if the band have previously signed over their performance right to a record company, and you are held to have infringed that right not knowing this fact, you will not have to pay damages, although you may have other sanctions applied against you. The most serious of these would be that you would have to surrender your infringiing video recordings.
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popmd
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PostPosted: Sat May 07, 2011 4:15 pm    Post subject: Live Music recording Reply with quote

Hi (My first time here)

I MD lots of pop bands and wanted to find out if its Illegal for the Musicians to be recorded on a show without consent, then for the artist to do another show without the musicians but use the live recording.

What can be done about this??

Should there be some sort of buy out??

Many thanks
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AndyJ
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PostPosted: Sat May 07, 2011 4:52 pm    Post subject: Reply with quote

Hi popmd,
I assume that you are talking about session musicians being recorded and that recording being used as a backing track at a later performance.
The simple answer is no it is not legal to make a recording without the consent of the performers. And all the performers need to agree to the recording. The normal industry practice is for session musicians to be paid a fixed session fee in exchange for them transferring their perforrmance right to the producer of the recording. In other types of deal, the session musicians may be entitled to royalties arising from the exploitation of the recording.

This is a really complicated area, and if you are involved in the management of bands or artists, you will need a good deal more detailed information on the subject. I suggest you start by looking at these two sites:
Music Law Advice
and
Bemuso
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mihiza
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PostPosted: Sat Aug 20, 2011 12:48 am    Post subject: Reply with quote

Hi everyone,
A very interesting thread, I found it very clarifying. However, I wanted to ask few more things.

I 'm Spanish and live in Spain, I think I have heard the Spanish copyright law is slightly different to other laws, but not too sure. I recently started taking pictures and ocasionally recording videos on live performances, not only but usually of a particular jazz band. I always ask the permission of the musicians to take the pictures and videos, and if I have a reasonable chance, I also ask the managers of the venue for permission.

From what I could read, depending on the terms of the contract with the record label, the permission of the musicians may not be enough to make a recording totally valid, because the record label may have the copyright even of any live performance of the song that was recorded in the studio... Is that so? But, I guess, having a rather close friendship with the musicians, they would have warned me if it was so, so I am safe to record and post those live performances with their permission. What do you think of all these?

Another question is more complicated. Out of those videos I record and post on Youtube, with permission from the musicians, some, but not all of them are flagged (I think authomatically, and quite randomly) by Youtube as having coincidences with copyrighted content, concretely the musical composition. always said to belong by the "Music Publishing Rights Collecting Society". Wondering what that society was, I looked for it on Google and all I can find is posts and pages from users wonderig precisely about it. I am rather surprised that such an entity doesn't have any website, I find it is not serious that one can't find any reliable information for that entity.

My videos weren't removed, so it's not big deal and I will probably not do anything about it. However, Youtube put ads on those vidoes that have this copyright notification and I understand the incomes from those ads go to the entity that claims to be the owner of the copyrights. It made me wonder if someone wasn't taking profit from my videos, and even more importantly, from the performances of my friend musicians, without having the right to do so, in which case I may ask the musicians what they think of it.

So, first of all, it is possible at all that jazz standards, many over 60 year old, are yet subjected to copyright as muscial compositions? I tried to find information about when the copyright expire but couldn't see it very clearly... As it is Jazz, with much improvisation, we can't even tell that a precise arrangement is followed and so, I don't think the copyright can be applied to a specific, more contemporary, arrangement.

And even if the copyright of the compositions was valid... I would expect from professional musicians to have made all the required to legally perform those compositions in public concerts. So, if the performance was legal and I was given permission to record it by the musicians, does the copyright holder of the composition have any rights of the recording?

Thanks a lot in advance,

Michał Zawisza
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CopyrightAid
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PostPosted: Sat Aug 20, 2011 7:17 am    Post subject: Reply with quote

"Music Publishing Rights Collecting Society"? in the UK that probably means MCPS which is now part of the PRS Alliance . In Spain it would probably mean SGAE. Different countries have different organisations - After a quick search on Google, I found a list of them here (you need to scroll down a bit).

Copyright duration will be clearly specified in your country's copyright legislation - I am not familiar with Spanish law, but you should be able to find the specific details if you search around online. What I do know is that copyright in the underlying musical work (and any lyrics) will last for AT LEAST 50 years after the creator dies as that is the 'minimum' specified under the Berne convention (it is common to be more - in the UK it is 70). The following link explains duration of copyright under Berne convention and also links to a page explaining different rights that exist in music.

Naturally an arrangement of a piece is an adaptation of the piece so the same underlying copyright is still in existence (even though there will now be other copyright in the specific sound recordings made) - [isn't Jazz complex Wink ].

If nothing else the previous links should help to clarify your thinking...
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mihiza
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PostPosted: Sat Aug 20, 2011 8:43 am    Post subject: Reply with quote

I see, thank you for your reply. So, I understand that "Music Publishing Rights Collecting Society" wouldn't be an entity itself but a generic name for all the entities that collect royalties for music compositions, is that so? And if I wanted to get any information, I would need to contact the society of my country or of the country where the wrok was published?

About the duration of copyright, I see it says it lasts for 50 years after death of the author. So, to have an example: *link in my next post*, this is my recording of the song of "All Too Soon". It was composed by Duke Ellington in 1940, 71 years ago, but since Duke Ellington died in 1974, the copyright on the composition would still be valid... right?

But for the last thing, I don't see a clear answer... I mean, assuming that the artists and the venue pay all the royalties to make the performance legal, would the owner of the copyright of the musiccal compostion have the right to take profit of my recording (with permission from the artist(, putting ads on my video?

Michał
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mihiza
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PostPosted: Sat Aug 20, 2011 8:46 am    Post subject: Reply with quote

It wouldn't allow me to post the link, I need to be a 5 days old member of the forum. Doesn't really matter, but if you want to ckeck it, look for "All Too Soon - Sant Andreu Jazz Band".
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AndyJ
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PostPosted: Sat Aug 20, 2011 9:56 am    Post subject: Reply with quote

Hi mihiza,
As CopyrightAid said, you need to apply Spanish law to what you want to do, so contact SGAE about licensing. They will then pass the royalties onto the Ellington estate. You could approach the estate direct but I suspect it will be easier to negotiate through SGAE.
Once you have a licence to perform the song, you don't have to worry about the copyright term, which as you have correctly identified runs for 70 years from the end of the year in which Duke Ellington died (1974).
The only 'profit' the copyright owners can take from your performance are the royalties agreed in the licence which you get from SGAE. Normally this will be based on the number of CDs you sell, live performances and other things like radio or TV plays. You don't need to worry about this aspect as SGAE monitor things like the number of CD sales and extract the relevant royalties from the manufacturers or distributors and transfer the lyricist's share (which is a very small percentage of the overall cost) to the Ellington estate. The same applies to TV and radio play. It would be unusual for the copyright owner to want to put ads on your video.
By the way, I liked the performance very much (I watched the 'live from Calaf' video). Good luck with your musical careers.
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mihiza
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PostPosted: Sun Aug 21, 2011 9:43 am    Post subject: Reply with quote

Thanks for your advice. I am not associated with the musicians, I am only a close friend who takes pictures and records videos, so I don't know the agreements and contracts they have, I only suppose the director of the band, as a professional musician, have done all the required to perform the music legally. So, my question was rather if the copyright owner of the composition gets the royalties from the performance, does he still has anyy rights to gain anything more from my video of that performance with the ads? (obviously, as an amateur video on Youtube, I don't get any gains from it)
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AndyJ
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PostPosted: Sun Aug 21, 2011 10:57 am    Post subject: Reply with quote

Hi mihiza,
Thanks for the clarification about your part in the recording. Like CopyrightAid, I am not familiar with the details of Spanish copyright law so this answer is based on UK law. If you were selling copies of your video (for instance on CD or DVD) or allowing TV stations to broadcast it, then if you were registered with SGAE (or possibly another Spanish collecting society) they would collect licence fees from the end users (that is, the buyers of CDs/DVDs or the TV stations) and this money would be passed back to you as the publisher (as well as the maker of the video). It would then be your responsibility to ensure that the artist (the Sant Andreu Jazz Band) and the writer's estate received their 'equitable share' (equitable here means a fair share). This kind of royalty is known as a 'mechnaical', to distinguish it from the other kinds of royalty which are due.
However in the UK on-demand video (eg Youtube) does not qualify for the collection of an equitable share, and since you do not gain any financial benefit from putting the video on Youtube, there is no money to pass on.
You need to check with SGAE that it is the same in Spain.
If you want to be truly baffled by the complexity of all this, take a look at this page which tries to explain the system in the UK: Bemuso
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mihiza
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PostPosted: Sun Aug 21, 2011 4:18 pm    Post subject: Reply with quote

Thanks both of you who replied and all the people who participated in this thread before. I learnt really a lot in this complex field of copyright. And thank you for being so patient with your replies.

I don't think I'll take any serious actions, afterall the ads are not such a big bother, I may however take a look at the SGAE webpage to see if there's any helpful information. Also, I may comment it with the director of the band, afterall, all my curiosity was because I would feel somehow bad if someone took illegitimate profit from the performances I record, butt mainly because that would be cheating on my friends from the band.

So, again, thanks a lot!
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