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Old October 4th, 2010, 12:04 PM   #1
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YouTube and BMI: Performance Rights extend to Videos?

Many school ensembles would like to have videos of their performances, but the copyright questions are unclear. In this recent thread on ChoralNet, members of the choral community are discussing comments by Jerry W. Bailey, Sr. Director of Media Relations & Business Communications for BMI, assuring a director that BMI considers the public performance license to extend to YouTube videos of that performance and that synch rights are only needed when a you use an existing copywritten audio recording in a video. Mechanicals to publishers of course still apply to downloads / CDs, but it seems that if a recent court case is treating streaming material different. Check out the thread below:

YouTube and BMI - ChoralNet
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Old October 4th, 2010, 01:19 PM   #2
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From what I gather, all that means is a performace that has been videotaped can be aired with no problem on YouTube. However, if you overlay/set as background/syncrhonize any copyright song to a video and post it on YouTube, YouTube's license does not cover your synchronizing. You are still responsible for the master license and synch license.
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Old October 4th, 2010, 03:11 PM   #3
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That would tend to be the interpretation of the court ruling - the video capture of live music during the "event" is in effect incidental, and since the performance of the choral work includes performance rights, the resulting recording would be included.

It's where a separate work is sync'd that it gets problematic - I still argue for the Carterphone analogy, and the court case cited offers absolutely NO clarity on that set of facts. It only notes that downloading - "Music is neither recited, rendered, nor played when a recording (electronic or otherwise) is simply delivered to a potential listener" - in effect for personal use, is a different animal.

The quotes from BMI would tend to indicate that if the performance of a work is licensed, capturing it via video is "covered" by the license, including re-distribution via posting to You Tube... this make reasonable sense.

It still doesn't address the typical situation where someone shoots video, and lays down a "sound track", which I feel farily strongly CANNOT be distributed ("performance") or used commercially without infringing, but I equally strongly feel that if that video is for PERSONAL non commercial use by the client it should not be infringing.

The line here is between personal use and "performance" IMO, and at least in the BMI view, performance is performance. YouTube and related video "sharing" services created the same mess that audio "sharing" and downloading audio did, just with the added dimension of audio being synchronized with the video content.
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Old November 13th, 2010, 12:05 PM   #4
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Christian, you raise a great and very common question. As Dave mentioned, incidental versus intentional recording can play a big role in the legal side of things. A licensing company I use has cleared hundreds of live music festival videotaped performances from the smallest bands to the biggest and in each instance 100% of the publishing rights had to be accounted for in connection with non-downloadable on-demand internet streaming rights. The live festival videos were uploaded to AT&Tís blue room website, which had public performance licenses from ASCAP, BMI and SESAC.

If the choral performance is of a song in the public domain thatís one thing, but I donít think youíll find a music publisher in the USA that agrees with Jerry Baileyís claim that a non-downloadable on-demand internet streaming rights license is unnecessary just because the song was performed live. Itís a shame that he may be confusing people. I doubt that he or BMI would pay for legal representation if a video company was sued by the publisher.

Dave also brings up a great point about personal versus commercial use. A lot of people seem to be confused by this. Basically, as soon as the word "client" enters the equation then it is undoubtedly commercial use. Personal use might be where a band member plays the song on their instrument, records it, and plays it back for themselves. As long as their performance isn't played publicly or is sold to anyone in any way then it can remain personal use. If a videographer records a performance and charges the band member for the recording, editing, or DVD production of the performance then it is commercial use. As soon as money changes hands personal use goes out the window.

Hope this helps.

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Old November 13th, 2010, 01:46 PM   #5
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Interesting. What about the variation where there is no exchange of money, no client and no hired videographer? That is, a school licenses a song for performance and the school staff or student technical arts members record it's performance as the school's historical record of the event.

If this is ok? For what school purposes can the recording be played?
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