Digital Dose Wednesday- Musicians Live Performance Rights Meets Technology!

With the rise of instant posting, social media, and various digital sharing platforms it is no surprise that artists are starting to get a little touchy when it comes to concert etiquette. Many adopting strict phone rules which forbade audience members from recording their live performances. These artists include the likes of Prince, Childish Gambino, Guns ‘N Roses, Alicia Keys and The Lumineers, who have required audience members to secure their mobile devices in locked pouches during concerts to prevent, or at least, deter them from recording.

Unsurprisingly, in a world where posting your whereabouts and updating your friends via Snapchat, Instagram Story, Facebook and other platforms, fans have mixed reactions to this seemingly un-harmful activity.  However, most people have no idea that recording live musical performances in the absent of artist consent is illegal.

Although it is not in the public interest for artists to sue fans it is still within their rights to forbid recording. Both sides generally remain ignorant of these laws because they are seldom enforced, even though a simple recording is essentially “bootlegging.” It is also within great displeasure of many artist when they find fans not engaging in the live concert experience and rather viewing the entire show though cellphone screens. A popular demonstration can be seen in this video concerning Beyoncé and a fan, where she yells at a fan to “put that damn camera down” and to “be in the moment.”

In the case if The Lumineers, the entire live tour was contained non-publicised new material that had not yet been recorded and the cell phone ban was a huge concern because the artists feared that the audience members would leak videos before the band could release the studio versions themselves and profit off the new excitement surrounding a fresh release. However, some fans believe that taking recorded footage is an appropriate way for them to celebrate and share their involvement with others.

This issue is not a new concept, in the famous Kiss case, concert promoters were sued under the civil anti-bootlegging statute by Kiss for commercially distributing videos from a stadium concert. In that case, the band did not consent to filming for the purpose of a released video DVD and unsurprisingly the famous rock band won the case.

Despite fans good intentions, this is not a moral question but a legal one Federal law specifically imposes civil penalties for unauthorized recording of live performances or transmission or distribution of such, 17 U.S.C §  1101. This applies regardless of commercial profit. If in fact fans decide to make copies and do so for commercial gain, 18 U. S. C Section 2319 (a) makes it a criminal offense. This is commonly known as the bootleg prevention laws. Thus, all musicians who perform within the U.S. have a legal right to prohibit concert goers from recording any and all part of a concert regardless of the fan’s individual intentions.

If the concert promoters from the Kiss case did distribute for commercial gain, the defendants could have faced more serious criminal charges under the ant-bootlegging statute.

Translating this case to modern-times, in a hypothetical context, if a concert goer decides to record a segment of the concert and posts it on YouTube and decides to click the switch to enable video monetization and therefore exercising the necessary intention of commercial gain, these actions may invoke the language of the ant-bootlegging statute and fans may find themselves in deep water. Although most musicians are better versed in their intellectual property right under copyright law many do not recognize their rights when it comes to live performances.

In the context of live performances sometimes copyright may not even apply! If the person records the performance, their actual act of recording will makes them the underlying copyright of the video itself. Although the recorder does not own the right to the audio in the video that has been captured the video, the video itself is still the property of the recorder. In this case the artist will have a right to take down any video posted on YouTube or other platforms, where they own the copyright in the musical composition if the recorder did not get a license to use their song. However, the artists will have difficulties when they don’t own the copyrighted audio, which is the case when musicians are recorded performing a cover song. Thus, as a fallback the ant-bootlegging statutes provides a nice little safety net to forbid the recording from ever taking place.

However, if the video has already been taken then the basis of removing the video again falls back onto copyright issues. Again using the YouTube hypothetical, although the website hosts a ContentID system which is a safe harbor removal system whereby musicians can demand a removal of copyrighted works. The system, however, does not recognize bootlegged videos in the same manner.

It will be interesting to see if there will be more systems being developed by tech companies to provide for the bootlegging statute by limiting unauthorized video recording in the near future. One to look out for is Apple’s recent patent which allows temporary disablement of iPhone’s cameras in concert venues.

It seems like artists may have increased means of enforcing their rights with the new technological advancements being in place.

Credit: Jessica Wong

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