One Man Gathers What Another Man Spills

Its done every day. Multiple times a show. As a form of diary. To remember the moment. To share the love. Or simply because people have cell phones and they can. Most likely the majority of people reading this have done it. But should you? What are the legal issues arising from recording and posting concert footage?

So, let’s understand the legal rights, the legal risks. But please be aware this article is not a substitute for competent legal counsel. It is meant merely as an intro class, Taping and Posting 101, so if and when you do it, at least you understand what you are doing.

In every performance there are multiple sets of rights in play. You may not even realize it. In fact, it’s probably fair to say that most people do not. In no particular order, they include: (1) the copyright in the musical composition, usually controlled by the publisher; (2) the copyright in the lyrics, also usually controlled by the publisher; (3) the copyright in the performance, usually controlled by the label; (4) the band’s right of publicity; (5) trademarks owned by the band; (6) contractual rights (potentially arising from signage posted by the band or the venue, the ticket stub or the terms and conditions of the website to which the footage is posted. And let’s not forget about ASCAP, from which the venue obtains a license.)

It is way beyond the scope of this article to discuss any of these in depth. Suffice it to say that each gives the holder of the right a form of monopoly to do certain things or to exclude others from doing them. For instance, a copyright gives the owner the exclusive right to reproduce and distribute the copyrighted work. And all are subject to exceptions. A copyright can expire and enter the public domain. In addition, even if there is a copyright, the concept of fair use limits the reach of the copyright by allowing use without consent of the copyright holder in certain, very limited contexts. This concept is quite complex and most certainly beyond the scope of this article.

Whether any or all of these rights will be enforced is up to the band, the promoter, the label, the venue, the website and/or the publisher. Most venues have long prohibited taping of events, though fans may not even realize it. And most legitimate websites prohibit posting of materials in which the copyright is owned by others.

But it is mostly up to the band and the label. And bands look at the issue very differently.

Maroon 5, for example, as they explained on their Myspace blog, expressly allow fans to record their shows for personal use and to trade, but not to post the recordings (though it is pretty well impossible to police that). Nine Inch Nails has taken an open door policy, actually encouraging fans to record and virally share their shows.

Kings of Leon are at the other end of the spectrum, having gone on record against recording and posting for fear that they will lose control of their music. And Linkin Park, clearly recognizing the issue is not going away, tried to monetize it by offering a “digital souvenir package” for an extra $14.99 that includes a link to original MP3s and photos from each stop on the tour.

The risk for the band, as was recently discovered by the Black Crowes when they prohibited pictures and videos on a recent tour, is that such a prohibition risks alienating fans, many of whom think it is their right to record parts of a shows. And in this day and age there are no shortage of outlets on which disgruntled fans can express their displeasure, including Facebook, Twitter, YouTube, MySpace and many others.

For their part, the legitimate websites want no part of copyright infringement. Under a law called the Digital Millennium Copyright Act (DMCA) they have a safe harbor and are not liable for infringement so long as they are passive and take actions to delete infringing content when brought to their attention. So they need not actively police the site, but if the label sends a letter they will pull the content.

So what’s right, what’s not? What is legal, and what are the risks?

Hard to say. Taping a portion of a show for your personal use is almost certainly fair use. Except, since everyone realizes that stopping the taping is much much easier than pulling down videos from the internet, the venue might confiscate your phone until the end of the show or shorten your night by throwing you out of the show. Both of which they can do.

And if you do succeed in taping a show and then post it, if any of the owners listed above contact the website, the footage will most likely be taken down.

Beyond that, the risks are low, very low. At least right now. In fact, as I write this I am not aware of any actual enforcement actions. But with concert grosses down and the music business changing virtually by the day, that could change as well. Certainly you don’t want to be the test case like those poor folks who were illegally and wrongfully downloading music and got socked for hundreds of thousands of dollars (at least on paper).

About the Author:

Randy Friedberg has 25 years of experience in counseling clients, with particular focus on the protection, licensing and enforcement of intellectual property rights. His practice encompasses entertainment law, trademark and copyright law, unfair competition, trade secrets, advertising law and internet, as well as general corporate and litigation matters.

Randy’s experience has led to him to become a source for the news media. He has been quoted in a variety of different publications. He is also asked to speak and present at business-related events. Randy has also served as a Judge for the Cardozo Entertainment Moot Court Competition.

Randy is the author of “Navigating Intellectual Property Disputes,” an authoritative, insider’s perspective on assisting clients with managing IP assets and litigating disputes. He is also on the editorial subcommittee of The Trademark Reporter, a publication of the International Trademark Association.