Live Band Performance

Copyright matters affecting music and musicians.
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Canmore
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Live Band Performance

Post by Canmore » Tue May 12, 2015 12:54 pm

I video recorded a live band performance, unfortunately I didn't get written permission. I do however have a fair amount of email correspondence in which this impression is clearly implied.

The band were initially interested in buying the footage but then declined.

Am I right in thinking as they permitted the video recording the copyright of the video is mine.

Looking into it the publishing rights for the songs are controlled by EMI

I was looking to release the video on a DVD purely to the fans I have inquired with the PRS and they say a LM license should cover this.

Informing the band on this their initial response was they wouldn't endorse it but I didn't expect them to, but that they couldn't stop me. I also offered what I thought was a fair return on any videos sold. I then received an email from a media representative for two members of the band who said his understanding was I didn't have permission and to "please" not proceed?

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AndyJ
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Post by AndyJ » Tue May 12, 2015 7:57 pm

Hi canmore,
This is tricky. Although written permission is not required by law, it is generally accepted practice to obtain permission in writing to avoid the situation you are in at present. The permission of all the performers is required, so having emails signed by just one band member may not be sufficient to prove an implied agreement of them all, after the event.
Technically speaking permission is required before recording takes place, but really the key to this probably lies in what is contained in the emails. It may be that the band did not understand their rights and so could not have given informed consent, a view strengthened by the subsequent media representative's email.
A performer has a number of economic rights relating his/her performance. You can read up on them here in Chapter 2 of Part Two of the Copyright Designs and Patents Act. If the band were already under a recording contract, then they are unlikely to have the capacity to authorise your recording without also obtaining the permission of the record company (which is highly unlikely to be given, I suggest). And even if it can be assumed that you do have permission for the recording, the band are entitled to a fair share of the proceeds of any sales. This is what the PRS LM licence is intended to cover.
Given the latest opposition from the band through their media representative I think you would be unwise to go ahead until you have concluded a formal agreement with the band or their management. If a court finds that there was no agreement, then you will have infringed a number of different rights, and so the damages could mount up, and you would almost inevitably have any remaining stocks of DVDs seized and destroyed. The fact that you had taken out an LM licence would not protect you in such circumstances.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

Canmore
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Post by Canmore » Tue May 12, 2015 8:22 pm

Thanks for the advice.

I was actually there to video support act and as the promoters contract stated no video he contacted the band for permission to video support act. They became very keen for me to video the whole event. I was dealing with the band leader but all his emails were cc to all members. They even had one of the video tracks up on their official site.

In the end the support act folded a few weeks later so I didn't get paid. Just trying to recover something for my evenings work and the editing.

Will peruse this a little further but I don't want to get into any legal wrangles

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Post by Canmore » Tue May 12, 2015 8:30 pm

Another point you say they may not have understood what rights they may have been giving. They are all seasoned musicians who have been round the block a few times. Think they have been "screwed" over a few time in the past.

This would only be a small scale effort probably no more than a few hundred videos at most and I thought I had offered a "fair return" it would probably be more than the get from the normal chanel.

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