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Piano Tutorials on youtube

 
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chris howard
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PostPosted: Tue Dec 09, 2014 1:24 pm    Post subject: Piano Tutorials on youtube Reply with quote

Hi there,

I make a living from mainly tutorials of pop songs on piano and posting them on youtube. I have always suffered from third party content matches from various publishing companies etc, where the claimant then benefits by putting ads on my videos and therefore claiming all the revenue, however lately they have gone through the roof.
Due to a very recent change by youtube, I have since found out that 100% of these claims are manual, so publishing companies obviously have someone on hand to sift through videos with their artist represented and make manual claims.
My questions are the following :

1 : Are they allowed to claim purely tutorial videos , using no part of the original recording, just my piano, running through the various parts of the song ?

2: Doesn't this fall under fair use by teaching ? Especially as I am breaking it down and not playing it through as one piece ?

3 : I have been told that chord sequences are not able to be copyrighted, so in videos where I just show the chord sequence used eg C F G Am , as opposed to a specific melody, can I appeal the decision right through to the end even appealing a possible DMCA takedown notice ?

I always appeal the claimed videos, and they always come back rejected - I am afraid to reappeal as this would mean a copyright strike on my channel which is in good standing. My only recourse would then be to appeal the strike, where the publisher must either take me to court or allow the video. I am prepared to do this if I am allowed by law to make these videos without them being claimed.

Many thanks, I have been looking for a definitive answer to this for years ....
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AndyJ
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PostPosted: Tue Dec 09, 2014 3:34 pm    Post subject: Reply with quote

Hi Chris,

Can you just clarify exactly what you are aiming to teach in your tutorials, and who exactly is making these infringement claims?

It is essential to differentiate between the rights of a composer (and lyricist if you also use the lyrics of a song) and a performer who may have recorded a version of the song. Obviously in some cases the singer may also be the song writer, but not always. And apart from that type of case, the performer (or their agent, management or record company) have no right to request a takedown or demand a percentage of the ad revenue from your channel, unless they can show that they also own the performing* rights in the song(s) you wish to feature. It is most unlikely, outside of the special case of singer/song writers, that a record company will own these rights, which are generally either retained by the writer or assigned to a music publisher. Just to be clear you are not concerned here with mechanical rights, sync rights or grand rights (which effectively apply just to a recorded song), only the performing right.

Generally speaking writers' economic rights are policed by the Performing Rights Society (PRS) and so if they are responsible for the takedown challenges, you may have a fight on your hands because they tend to protect their members' rights fairly aggressively. That said, provided that your repertoire is extensive enough you might find it pays to get a PRS licence. The Limited Online Music Licence costs £126 pa +VAT, but as I suspect this is too all-purpose for your needs, you could discuss your specific requirements with PRS before deciding if you need this or any other licence. As I have indicated, PRSforMusic has a certain reputation for getting the very best deal for its members, and so it would be wise to treat their advice as biased. Another source of advice is the Music Publisher Association, and you may find this page on their website helpful

As you mention, you may not need a licence at all if you are not actually performing a sufficient amount of the tune for it to count as a substantial part of the protected work, something which would be required for it to amount to infringement. However, this is a notoriously difficult subject on which to give generic advice. Arguably if you are performing enough of the melody for it to be recognisable, then that might constitute a substantial part. However where the pop song itself is based on an existing tune which is no longer in copyright, (a typical example might be Brahms Lullaby) then there is no infringement if you are merely demonstrating the underlying work. Usually the courts call in expert musicologists to help them determine whether a performance infringes the copyright in the original musical work.

You also ask if your tutorials might be covered by the exemption for instruction, contained in s 32 of the Copyright Designs and Patents Act 1988. I am not aware of any caselaw where this provision has been used as a defence where the instruction takes place outside a formal eductational establishment, but even if it could be invoked more generally, your tutorials would not be covered due to the fact that they are conducted via YouTube which constitutes a communication to the public, and so fall foul of s 32 (5)(b):
Quote:
(5) Where a copy which would otherwise be an infringing copy is made in accordance with this section but is subsequently dealt with, it shall be treated as an infringing copy for the purpose of that dealing, and if that dealing infringes copyright for all subsequent purposes.

For this purpose “dealt with” means—
    (a) sold or let for hire, offered or exposed for sale or hire; or

    (b) communicated to the public, unless that communication, by virtue of subsection (3), is not an infringement of copyright.
For much the same reason s 34 would also not apply in your case.


*There are two separate rights with similar names: performing right is the right of the song writer to decide who may perform his/her song; performance right is the right of a performer such as a singer or musician to decide who may exploit their performance, for instance by making a sound recording or video recording of the performance.
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CliveB
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PostPosted: Wed Dec 10, 2014 12:33 am    Post subject: Reply with quote

Chris, I'll try to give you the short answer: if what you are playing is an original work (that is currently protected by copyright), and you do not have a licence to perform that work, then you will be infringing and someone, somewhere will have the right to take action against you.

I'm not sure that what you have stated about chord progressions being unprotected is true. I don't see any absolute reason why they would not be, but a decision on that would not simply be the order of the chords, but as with a melody, the duration and spacing of those chords. So, playing a chord sequence as if each had the duration of one bar may not be an infringement, if the timing in the original work was different.

The key element for infringement is taking a substantial part from an original work - and there's no fixed definition of what is "substantial". George Harrison apparently infringes "He's so fine" with a three note melody.
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chris howard
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PostPosted: Wed Dec 10, 2014 12:56 pm    Post subject: Reply with quote

Thank you so much for your responses.

To answer the question as to who is making the claims, they are always different, but some examples might be : Kobalt Music Publishing
UMPG, Warner Chappell, Reach Music Publishing, Reservoir Media etc
My tutorials teach the piano parts to pop songs, normally in the charts. If there is no piano part, then the instrumental parts. Sometimes this will be just chords, other times a specific melody, but they are being shown in a one finger at a time, tutorial way, not as a performance.
My videos are then being matched by publishing companies manually (not a match by content ID), due to the title of the video (E.g. How to play Someone Like You on piano by Adele).

It's important to note that no-one is requesting takedowns on my channel, but when a claim is made the claimant makes money on the ad revenue from future views as opposed to myself. I have the option to "share" the revenue with the claimant, but they get around this by having multiple claimants . An example is my video How to play Wiggle :
Claimant :
BMG_Rights_Management
Warner Chappell
Sony ATV Publishing
UMPG Publishing
Kobalt Music Publishing
EMI Music Publishing


I was hoping that I could use the "tutorial" aspect under the fair use clause of youtube, as obviously I don't own the publishing rights. I understand that if I make a cover of the song, then obviously they have the right to claim ownership and profit from my video.

This is quite hard for me, because previously only videos that matched the content ID system were third party matched in this way, which rarely if ever affected any of my videos. Now that publishing companies and record companies can make a ton of money off the back of other people's work they are manually claiming all videos with their song and artist in the title.

I was hoping there was something I could do, as this is essentially my full time job and main source of income.

Thanks
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AndyJ
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PostPosted: Wed Dec 10, 2014 7:32 pm    Post subject: Reply with quote

Hi Chris,

Many thanks for the additional information. I know you mentioned publishers in your first post, but I wanted to be sure that the people taking a share of the ad revenue weren't the record companies reacting to the fact that you include the artist in the title of your tutorial.

Music publishers certainly have a right to claim royalties on behalf of their members (the song writers), but taking the example you quote of the song Wiggle, there is no way in which all of those organisations listed have the right to claim royalties over one song. I have no idea who is the legitimate owner of the rights, but on those grounds alone, you appear to be being treated unfairly.

Before I move onto the matter of whether the use you are making of the music constitutes fair dealing or is permissible due to some other exemption, one way of addressing the problem of the music publishers muscling in on your revenue stream is to look into a PRS licence. At first sight the LOML I mentioned previously is quite costly at £126 +VAT, but it might work out cheaper than the amount of advertising revenue you are losing currently. Again I stress that you need to discuss whether there is a more appropriate licence with PRS before deciding. By the way, it is possible to challenge these licence fees or licence terms if they are inappropriate for your needs, using the Copyright Tribunal.

But returning to the issue of whether what you are doing constitutes a performance (and therefore would make you liable to pay either royalties or a fixed fee for a licence), I don't think any of the fair dealing categories or exceptions for educational purposes are of any help here. You may have seen a discussion between Clive B and myself in another thread over the applicability of s 32 to online tutorials. Unfortunately the wording of s 32 does not permit the performance of musical works except in the very narrow context of music examinations. And the fact that you are providing your tutorials for commercial gain also means that none of the exemptions for educational purposes can apply. The other fair dealing exceptions, such as for private study, might well apply to your students, but again not to you in view of the commercial nature of the business.

So all that remains is the threshold of substantiality, and whether playing notes or chords one at a time constitutes a 'performance'. My feeling is that no matter how slow or disjointed the tempo, this would amount to a performance, but that is an opinion based on absolutely no caselaw. The substantiality issue is a more fertile area for caselaw. I don't know of any specific cases where the dispute was about whether enough of melody was played to constitute a performance, but as Clive mentioned there are copious examples where copying of all or part of another tune has been alleged. The case involving George Harrison (Bright Tunes Music Corp. v. Harrisongs Music, Ltd. et al, 420 F. Supp 177 (1976)) which Clive mentioned, was heard in a US Federal District court, and so one should be wary of assuming that a UK court would have decided the case the same way. An early classic case concerning music is Hawkes & Son v Paramount Films [1934]* in which a 20 second long extract of the tune Colonel Bogey was found to have infringed copyright in the music. But that decision was based as much on the quantity (measured in terms of the number of bars used) as on the qualitative 'hook' of the song. More recent decisions tend to use the qualitative approach more heavily. For instance see this analysis of the case Williamson Music v Pearson Partnership [1987]. Although that case was about parody, the issue of substantiality was highly relevant. Contrast that case with the analysis applied in the Chariots of Fire case (EMI Music v. Papathanasiou, [1993]). You can see how musicologists are important in assisting to the courts determine the facts as to substantiality. There are probably a dozen other cases of the same sort, with decisions going both ways, which only serve to show how difficult it is to state a firm general rule on the subject.

* beware that other cases on that Wikipedia page concern Canadian law so may not be relevant to what a UK court would decide.
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Paul Johnson
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PostPosted: Sun Jan 11, 2015 1:07 pm    Post subject: Reply with quote

I only just found this site, searching for something else, but thought I'd chip in on this topic.

Before returning to 'real work' I spent 12 years teaching in a music and performing arts department in a college, and we would, as part of our daily work use published music, and this, in the context of am educational institution was fine, copyright wise - however, whenever we moved outside for shows, gigs or concerts, where we made a charge for entry, or invited the public, we always had to pay PRS, even though many of these were proper parts of the course, and generated marks.

I'm by no means a legal expert, but the fact your work is discovered via Google searching for the artiste, or song title - or in the example you gave, both - surely means that you are exploiting their work. If it's your main income, then the copyright clearance is a legitimate business expense, and your account will offset it against profits. As your main income component, surely you just need to accept you are using somebodies copyright material, pay the rights - but then register yourself with PPL, and generate income from use of your material, because you played it, recorded it and are the 'producer'? As you sell the music to the end user, it won't generate much, if anything, but your claim to the production rights is then registered.

I can't think of any way you can avoid paying the rights holder - because clearly you are marketing the material as "easy piano versions" of popular songs. All the books in music shops are legit, so you really need to become professional about it, and include the PRS cleared statements in your material.

Educationally speaking - it's schools and colleges that have exemption. Exam boards, who may set music as part of an examination, pay for the copyright. I've had personally experience of clearing music for this use and it's quite complex and some artistes will NOT under any circumstances allow their music to be disassembled and distributed. Many will - Lionel Richie was very happy to do it, as so was Abba, Santana and a few others - but some big names just said NO! Their record companies set the fee, as many were not controlled by PRS - I don't think PRS can at the moment license Abba music, but that often changes year to year.

PRS I have found to be very friendly when asked for help and advice, they just work for their members, so are obviously protective.
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