Recording of Live Performance

Copyright matters affecting music and musicians.
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Sparkster
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Recording of Live Performance

Post by Sparkster » Wed May 02, 2018 1:30 pm

Hi

I'm hoping someone can help me understand the legal/correct answer to my querey.

My Son plays in a band (They are 15) playing original songs written by themselves.

They have a slot at a very small local festival, where we discovered that they are likely to be recorded and transmitted on a local community radio station.

All this is fine as they are delighted to have radio play. However, when they asked if they could have a copy of the recording, they were quoted £25 for a restricted use copy for personal use only and £50 for a 'free to do as you wish' copy.

My question is, can they actually charge a band for lifted usage restrictions on a recording of their own material?

Seems somewhat unfair. Especially if the band received no money for the gig as they are expected to do it for their own exposure and the good cause of the area.

Sorry, not strictly speaking copyright, but to lose ownership of your own material just because someone else records it seems somewhat harsh.

Please don't misunderstand, I have no issue in paying someone who has made a good quality recording if they have put effort into it, its that they then put exclusive rights on it that irks me.

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AndyJ
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Re: Recording of Live Performance

Post by AndyJ » Wed May 02, 2018 5:57 pm

Hi Sparkster,

As you say this is not technically a copyright issue, but it is one which is covered by the Copyright, Designs and Patents Act 1988, Part 2 - Rights in Performances.
The law says that a performer has the absolute right to agree or not to the recording of their performance. However I suspect the band will have had to agree to the recording as a condition of entry to the festival. And as you point out, they will no doubt welcome the opportunity for the wider exposure the event and the recording will provide. However, they may need to look carefully at the actual terms of what they signed* . For instance if the recording is made strictly for the purpose of being broadcast on the local community radio, all well and good. But I would be unsurprised to find that the rights the producer of the recording has laid claim to are significantly wider, meaning that if the band were to be successful in later years, the producer would have the right to issue copies of the recording for sale, or make it available to download etc. The band members have to have agreed to all of these things, but it will probably be buried in the small print. At its most extreme, the agreement may have required the band to assign all their economic rights in the recording to the producer. However, even if it is too late to renegotiate the agreement they signed, there are legal safeguards to ensure that they receive fair remuneration for either any subsequent exploitation of the recording, or for an assignment of their rights. This is a fairly complicated area of the law, and certainly not one most aspiring bands can be expected to understand when they first start out. Given that the band members are below the legal age at which they can enter into contracts, a court might find that the terms of the agreement were oppressive if the full extent of the rights they were asked to sign away were not explained to them at the time they signed. So, armed with these facts, it may be possible to wrest back some control of the band's rights, and get the charge for a copy of the recording waived, or at the very least reduced to a sensible figure. This kind of exploitative behaviour might well make a good story for the local press, and I'm sure the organisers will want to avoid any potential bad publicity!

A second thing - which does involve copyright - to bear in mind is that if the band composed the songs themselves, their permission as owners of the copyright in the music and lyrics, is required before a recording is made. And of course they can, like any copyright owner, ask for a reasonable fee from the producer of the recording for this permission. They might wish to consider charging between £25 and £50.

*As the band members are under 18 years of age they cannot enter into general contracts, and so it may be that a parent or guardian was required to counter-sign an application form.
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

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