Are Recordings Of A Live Performance Legal?

 
 
David McLaughlin music lawyer legal2nd March 2009 - By David McLaughlin c/o of New Zealand Musician Magazine Introduction
In the last edition of our Music Law Newsletter and continuing in this edition we’re taking a break from looking at some of the key contracts you come across in the music industry and instead are turning our focus to some other general issues that relate to the music industry that are quite topical at the moment. In last edition of our Music Law Newsletter we looked at the recently enacted Copyright (New Technologies) Act 2008 and some of the important aspects of this new legislation and the impact it will have on those of us operating in the music industry. In this edition of our Music Law Newsletter we’re going to be looking at another copyright related issue being that of are recordings of a live performance legal?
YouTube
You’ve only got to spend a couple of minutes on an internet video site such as YouTube to realise that there is a lot of interest in watching the performances of musicians live in concert. Be it a well known international or New Zealand artist it is amazing the actual volume of live concert video footage that is readily available. But is this actually legal? The short answer to this is generally no. Right to View
When you attend a show or a concert whether it be at your local pub or the Vector Arena the same kinds of legal issues apply. Your right to attend the show is simply a right to view the show. You can soak up the atmosphere but you can’t record the performance itself whether it be by way of an audio only recording or some kind of video recording such as we find all over YouTube. The legal reasoning behind this is found in copyright law generally and also in a more specific aspect of copyright law known as ‘performers rights’. Public Performance
Under copyright law a songwriter has the exclusive right to control who does what with their songs. This includes the public performance and broadcast of their songs as well as the right to control who reproduces copies of such songs. When it comes to the ‘public performance’ right every venue that either provides live music or plays recorded music over a sound system is meant to have an appropriate licence from APRA. (NB: For the avoidance of doubt they must also have an appropriate licence from Phonographic Performances New Zealand Limited (”PPNZ”) which administers certain rights in the use of sound recordings.) This is the responsibility of the venue owner and the APRA licence essentially means that the copyright rights of songwriters in the performance of the music in question is taken care of. If you’re in a band playing your own material and your songs are registered with APRA you can submit ‘live performance returns’ of your set lists to APRA and in return earn a share of the licensing money that APRA collects from venue owners. Another excellent reason to join APRA www.apra.co.nz! RAP Fund
(NB: We would like to take this opportunity to remind everyone of the RAP Fund run by PPNZ which provides for a certain amount of the income PPNZ earns from the licensing of its members’ sound recordings to be distributed amongst those New Zealand performers and record labels who are registered with the RAP Fund and whose sound recordings are being played. Distribution of the funds is based on actual airplay or usage of New Zealand singles and album tracks and music videos. For more information on the RAP Fund and PPNZ generally check out www.ppnz.co.nz but we would encourage all New Zealand performers and record labels who are having their music played on the radio or TV to make sure they are registered with the RAP Fund. Joining is free and should be seen as just as important as joining APRA is for songwriters.) APRA Licensing
Now the above of course assumes that the songs that are being played are administered by APRA and will be covered by the licenses APRA has with venue owners. As it is an almost 99.9% certainty that any artist signed to a record label is a member of APRA or a similar performance rights collection society in their country (and it can also generally be taken for granted these days that APRA will have an arrangement for administering the rights of such collection societies in New Zealand ) this also means that covers bands can play whatever they like without having to worry about getting specific permission. Now this situation around APRA licensing changes when you are talking about shows that are specifically promoted such as a Foo Fighters concert but even in such cases some form of APRA licence will have to have been entered into in respect of the public performance of the songs in question. Outside of APRA
So generally we can say that the public performance of music in a venue is well covered off. However when it comes to actual recordings of such performances then we move away from an area that the APRA licences cover. Here we are essentially talking about the right to make copies of the song in question which is another right which copyright law reserves exclusively to the songwriter. What this means in practice is that the only way you can make a specific recording of a live performance is if you have the permission of the songwriter. So for instance a covers band can play Judas Priest covers to their hearts content at a bar which has an appropriate APRA licence. However if they then want to record any of their performances whether for sale or just to promote their covers band permission must be specifically obtained from the songwriter or as is most likely with major artists the publisher to whom the songwriter has assigned their rights in their songs to in order for the publisher to administer their rights on their behalf. Performers’ Rights
The second aspect of copyright law which makes it illegal to record performances of music without appropriate permission relates to a set of provisions in the Copyright Act 1994 that are specifically concerned with protecting the rights of performers in their performances. Under these provisions of the Copyright Act 1994 a performer’s permission must be explicitly sought if you want to make a recording of the performer’s performance unless the recording is only to be used for your own “private and domestic use”. Placing clips from your mobile phone on YouTube will not qualify as “private and domestic use”.

Two Permissions

So in practice this means that anyone wanting to make use of an audio or audio-visual recording of a performance needs to make sure they have the permission of both the songwriter of the songs comprising the performance and the performer providing the performance (who may be different from the songwriter e.g. covers bands). This is why 99% of the live performance clips you see on YouTube are likely to be illegal. Action Against YouTube
So if this is the case how can YouTube get away with such things? Well the simple answer is they can’t and they haven’t. YouTube for instance has been hit with massive lawsuits from the major publishers in respect of the unauthorised content they include on their website. If you read the YouTube terms and conditions carefully you will also see that there is a firm requirement on anyone submitting content to own or have the rights to provide the content they are providing. Venue Restrictions
Although outside of strict copyright law a venue owner also has the legal ability to place certain restrictions on the right they give you to come into their venue. This can include a requirement that no video or still photography occurs. This is quite often what you see on signs at a venue or even printed on your concert ticket. This may be a requirement that the venue owner is under an obligation to enforce due to their arrangement with the performer in question or is just an attempt to limit any liability they may have for any unauthorised recording of performances that may occur in their venue. Conclusion
So next time you’re at a concert and wonder why some large security guy is shining a laser pointer at you as you try and video the performance of your favourite artist be aware that the large security guy probably has a very clear legal right (in addition to the fact he is probably a lot bigger than you are) to stop you making that recording. Next Time
In the next edition of our Music Law Newsletter due out at the end of April we will begin to look at the different issues you need to be aware of in a Performance Agreement. Questions?
If you have any queries or questions in respect of the above please don’t hesitate to contact me at david@mclaughlinlaw.co.nz or on 021 630 201 or 09 363 2738. I can also be contacted through myspace at www.myspace.com/nzmusiclawyer Pass it on
Know someone who you think may be interested in the information in this newsletter? Feel free to pass it on to them! And if someone has sent you on this Newsletter we invite you to register yourself to get copies of our upcoming newsletters sent direct to your inbox.
Disclaimer: This article is intended to provide a general outline of the law on the subject matter. Further professional advice should be sought before any action is taken in relation to the matters described in the article. This article written by David McLaughlin of McLaughlin Law recently appeared in New Zealand Musician Magazine and has been reproduced with the kind permission of New Zealand Musician Magazine. www.mclaughlinlaw.co.nz
www.myspace.com/nzmusiclawyer
www.christchurchmusic.org.nz/professional-service