As you know, from reading in our recent blogs on music and copyright issues, copyright law can get sticky (in case you haven’t read them, you should definitely check them out here, here and here). You know that broadly defined, a copyright owner has the exclusive legal right to print, publish, record or distribute the artistic material owned. The upshot of this definition is that there are many different kinds of copyrights that come into play when you perform, record, and post (aka “distribute”) a piece of music.
When considering posting a recording of a performance, you need to think about at least three different copyrights: rights to the music being performed, rights to the performance, and rights to record and distribute a recording of the performance. Phew! We’ll take them one by one, and then get into the potential safe harbor of “Fair Use” that might (might) let you side step this all.
Two notes to keep in mind first: Everything written below is based on U.S. copyright law, which means it only applies in the United States. Other countries have their own laws, which vary. Second, this post focuses on the copyright issues with the intent to post the performance online. Thus, any exemptions that might apply strictly for educational purposes don’t apply here.
Right to perform the music
If you composed the work and didn’t sell the songwriter’s copyright to a publisher or anyone else, you’re good to go. On the assumption that the performance isn’t of an original work, you need permission to perform the composition unless it’s in the public domain. As a general guideline, any song published in the United States prior to 1923 is in the public domain. There are wrinkles to this rule, but it’s a good bet. By definition, a work in the public domain is freely available to perform. Keep in mind that the arrangement you’re performing may not be in the public domain, even if the underlying composition is. If you purchased the sheet music, you may need to license that publisher’s rights to their arrangement.
If the song is still under copyright, you’ll need to get permission to perform it. Three companies hold and/or manage the performance rights for pretty much any song you’d want: ASCAP, BMI, and SESAC. You can license performance rights through the organization that owns the rights to the composition in question.
Right to record and distribute the performance
Really, the right to record the performance isn’t the issue. Distributing that recording is where copyright comes in. Otherwise, parents all over America would have to pay a licensing fee to record their little Paganini’s recitals. That would be crazy! Now, if they want to post Little Paganini’s performance to Facebook or YouTube, that’s a horse of a different color.
Once you post the digital link, it’s publicly available. If you lockdown your Facebook page and/or this video to make it viewable only by family and friends, that may keep you in realm of private sharing. Of course, if you have 5000 friends on Facebook, that may no longer be considered private, even if your post technically is.
The safest position to take is to assume that your upload of a digital recording of a performance is publicly available. Thus, you need the right to distribute both the song and recorded performance.
To distribute visual music recording (as opposed to simply a sound recording) under copyright protection through digital file, you need a synchronization license. If you were going to upload just a sound recording say to SoundCloud or a similar site, then you need a mechanical license. However, anything you upload to YouTube will have some visual component, even if it’s just a black screen with text stating, “Performance by me, 2018.” The synchronization or mechanical license is separate from the performance license obtained through BMI or similar organization. You can arrange a sync or mechanical license for most works online through a service like Harry Fox.
In fact, the Harry Fox company already has a blanket agreement with YouTube to allow some of the works under its control to be posted on the site for a share of the ad revenue. You may find that the songs in your performance are already covered.
One last wrinkle before getting to the Fair Use exemption
If your recording is a group recital with other performers, each performer owns the copyright to their performances. Technically, you can’t post their performances without their permission. You can get them to sign a waiver, or you might just have to agree to remove the upload if anyone complains.
The Fair Use exemption
Copyright law does provide a Fair Use exemption that allows performance and distribution of copyrighted works without gaining permission or paying license fees. For our purposes here, the important criterion that may allow an upload to fall under Fair Use is whether the use is commercial or for nonprofit educational purposes. Money doesn’t need to change hands for it to be considered commercial. Thus, demonetizing the video on YouTube doesn’t automatically put the recording outside the realm of “commercial.”
It’s impossible to say for certain whether an uploaded video will fall under Fair Use. However, if you’re a private music teacher posting recitals, this may be considered commercial as it promotes you and your business. The same could be said of a young performer using the uploaded videos to advance their careers (or to start one) as musicians.
YouTube is not under the radar
The fact is that YouTube gets copyright holders asking it to remove videos they consider to be violating copyright law all the time. If you post a video of a personal performance without worrying about copyright issues and you have limited views, your video might just slip under the radar and it’s no big deal. If your video “goes viral,” you might hear from the copyright holder.
Again, the laws may start to change. Whether that results in greater clarity regarding these copyright issues is hard to say.
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