Copyright Question

[ed_farmer]

<p>OK . . . I'm certain that I could do the research on this if I had the time but I suspect that I might be able to get quick answers here:<br /><br />My son is in a high school marching band. The parent are constantly warned not to post videos of the bands performances online in posts like the following:<br /><br />"Parents, please DO NOT POST ANY VIDEOS of the Marching Band shows online ANYWHERE. We pay for the rights to use the music in the show, but not for public distribution. If the companies see it, we could lose the rights to the music, now and in the future. Thanks for understanding!"<br /><br />It has been MY understanding that since the band doesn't use the entire score of any song, along with several other factors, this is not, in truth, an issue.<br /><br />The publishers MAY be giving these warnings to the band associations, but they wouldn't have a leg to stand on if pushed.<br /><br />I see all sorts of college marching bands on YouTube, including Rutgers which has their own YouTube channel, Ohio State and many, many, others.<br /><br />Can anyone come up something to support or refute this?<br>

Thanks,<br>

Ed</p>

[Spearhead]

<p>The answer to this requires understanding licensing of music, which is much more complex than licensing of images. While it is unlikely that it will be enforced, the use of a performance online requires licensing both by the performers and for the online broadcast of any music. The performers may or may not hold a license when they perform live, although legally they should, but they are still liable if someone puts up the performance on youtube, as is whoever puts it there.</p>

<p>There has been a lot of misunderstanding about partial use of compositions primarily related to the use of samples. However, most of the information floating around that says you can use a certain number of bars or seconds is wrong and isn't relevant to this case.</p>

<p>In summary, the restrictions are legally correct. Legal actions because of abuse are highly unlikely due to the volume of material posted on the internet, but that doesn't absolve anyone of responsibility.</p>

<p> </p>

[Matt Laur]

<p>And to add to Jeff's remarks: it's one thing to infringe on some music when it's used to accompany a personal cat video posting to YouTube. What's the worst that usually happens? The cat video gets taken down, or muted by YouTube. But when you are a public employee working for a state government or county school system, you are risking your career if you are seen as not caring about intellectual property rights when it comes to school activities. </p>

[bethe_fisher]

<p>They are likely using specific arrangements of songs that were done for marching bands. Those arrangements have their own copyrights. When you buy sheet music for groups like choruses or bands, you can buy different levels (depending on the company). Some let you do more, but you have to pay more. You're also not supposed to photocopy any of the copies you buy and if you do, they must be destroyed after the performance. <br>

I don't guarantee this is still the way it is, but these were part of the rules when I was in band and chorus. In college, the school was allowed to record our wind ensemble concerts, but only students could make copies of them. And no videotapes.</p>

[Spearhead]

<p>The rules for sheet music are different than the rules for performance rights and reproduction rights.</p>

[bert_krages1]

<p>The Ninth Circuit recently ruled that the use of music performed by Prince in a 29-second home video of her two young children dancing required the copyright owner to consider whether the work was subject to fair use prior to filing a DMCA take-down notice. (<cite >cdn.ca9.uscourts.gov/datastore/opinions/2015/09/14/13-16106.pdf</cite>). In any case, I don't see how the school could be liable for a parent's posting of a video of a band. If anything, the record company might come after the parent or request a take down, but it is not going to deprive itself of revenue by refusing to license to the school.</p>

[Spearhead]

<p> I don't see how the school could be liable for a parent's posting of a video of a band.<br>

<br>

Please see the ASCAP site's New Media FAQ. You will find this in there:<br>

</p>

<blockquote>

<p>An ASCAP New Media license authorizes the public performance of music in the ASCAP repertory by means of transmission from the license service. It does not authorize the reproduction and/or distribution of the underlying musical compositions, or the performance, reproduction, and/or distribution of sound recordings. These rights require separate authorization from their respective copyright owners or licensing representatives.</p>

</blockquote>

<p> </p>

<p>As you can read, unless the school has the proper license for reproduction, they are not absolved of responsibility for not holding the proper license, which I suspect is why they have a problem with posting. My point may have been slightly unclear above - I was pointing out this issue with liability that arises when reproduction occurs and the original performance is not properly licensed.</p>

[bert_krages1]

<p>The school and the parents are separate entities and neither is responsible for the acts of the other. Although the school cannot authorize the parents to post videos, it is not responsible for any infringement should a parent do so. Only the parent would be responsible. As an analogy, suppose you grant a license for someone to use a photo on their website but do not allow them to sublicense the photo. If a thief copies the photo off that person's website, and uses it on another website, the thief would be liable to you for that infringement but the person who originally licensed the photo would not be liable.</p>

[Spearhead]

<p>The issue is that the school needs to have a license to perform the music. If someone posts the video and the school doesn't have the license, which I suspect is the case, the school is liable for the license violation. If the video is not posted, the school is still liable but it isn't evident to the outside world of the violation.<br>

<br />There are numerous specific licenses in the music world, it's very different than photo copyright issues. There is one agency (Harry Fox) that licenses recording rights. ASCAP and BMI are the primary licensors for performing rights, and separately for electronic distribution. For sync licensing, it's the actual publisher of the music that does the licensing. This is why there is not a simple analogy to photo licensing.</p>

[bert_krages1]

<p>Jeff, with all due respect, why would the school be liable if someone makes a video of the band and then posts it online without authorization by the school? I understand that music entails various kinds of rights, but a licensee is not liable for another person's unauthorized use.</p>

[Spearhead]

<p>Bert, maybe I'm not making myself clear. The issue is that if the video is posted online without proper licensing and it shows the band performing without proper licensing (which I suspect may be the issue here,) then the band is liable for their performance violation)s). They are not liable for the video being posted, they are liable because the video is posted if they don't have the licenses in place. I hope that clarifies what I'm trying to say.</p>

<p>I would guess that unless a marching band is performing at half-time on a nationally televised game, they haven't bothered with licensing and that's why it's an issue for them if the videos are posted. They are liable for their performance regardless of who posts the video.</p>

[bert_krages1]

<p>Ok. My understanding is the school obtained the licenses for the performances and was concerned that the music companies would no longer license them rights to use the music in future performances. </p>