Members TieDyedDevil Posted November 26, 2012 Members Share Posted November 26, 2012 Some bands allow fans to make and distribute live concert recordings. Some of these bands play cover songs. In this case, who pays for the rights to publish the band's cover material? I've been trying to research this. From what I've been able to find, there's no mechanism by which a band that allows fans to tape live performances can pay the original artist for rights to release a recording of a song. A compulsory mechanical license (and its streaming equivalent) seems to cover *only* the case where a particular recording is made by and accounted for by the band. In the case where you have fans recording and redistributing concert recordings, there's no possible way to account for the number of copies in circulation or the number of streaming plays. I'm puzzled... Any insights would be most appreciated. Link to comment Share on other sites More sharing options...
Moderators daddymack Posted November 27, 2012 Moderators Share Posted November 27, 2012 Yes, this is a part of the pirate/black[read:GRAY]market...most legitimate music venues pay performing rights license fees to cover the live performance (assuming it wasn't being down in a private residence, garage, etc.). However, the people who spread these 'bootleg' recordings are, in essence, abrogating the copyright holders'/publisher's right to make money. So, yes, they should be obtaining a mechanical license from the HFA...but we all know that is not going to happen. People who perform this 'service' are breaking the the law, and could be prosecuted. Link to comment Share on other sites More sharing options...
Members TieDyedDevil Posted November 27, 2012 Author Members Share Posted November 27, 2012 Thanks, daddymack. I've been trying to research this for the past week and have been unable to find any acknowledgment of the issue within the taper community, e.g. on etree.com and archive.net. Does the band, in granting permission to the tapers, incur any legal responsibility for the tapers' distribution of the bands' cover songs without the appropriate mechanical license? Link to comment Share on other sites More sharing options...
Moderators daddymack Posted November 27, 2012 Moderators Share Posted November 27, 2012 The band's performance is theirs to 'release', but the ownership of the songs is not theirs to control. I can't make a legal decree, but the dissemination of the recorded performance would be the point of contention, so if the band is not directly involved in any of the distribution activity, then they are really not breaking the law, but, that is not to say they couldn't be held complicit should any legal action be taken. When they 'grant permission', is there a contract/document stating this? Again, if the 'tapers' are distributing copyrighted material without licenses for the material, they are breaking the law. So I would guess the people doing this are either ignorant of the law, ignoring the law, or willing to take the risk of prosecution. Link to comment Share on other sites More sharing options...
Members scarecrowbob Posted November 27, 2012 Members Share Posted November 27, 2012 (IANAL of course) Yah, the issue is distribution, not the actual acto of recording; there's no problem with, for instance, making reference recording of you band to listen to. But then, of course, if you put those recordings out for people to listen to, then that act is starting to violate copyright holders rights. That, of course, usually doesn't matter until you start selling (or giving away popular mass copies of) the work. But in any case, the responsible person is the distributor... if I make a recording of a band that the band shares with their friends, and then one of those friends puts it on a compilation that gets on spotify, then ultimately it's the distributor who's on the hook... that said, in the US anyone can sue anyone in civil court, so who knows... but I personally wouldn't worry about allowing people to tape me and allow those recordings out into the public. Link to comment Share on other sites More sharing options...
Members TieDyedDevil Posted November 27, 2012 Author Members Share Posted November 27, 2012 Thank you, guys. I appreciate the insights. I get the sense that most copyright violators in this situation are fortunate to be flying under the radar. Link to comment Share on other sites More sharing options...
Members scarecrowbob Posted November 27, 2012 Members Share Posted November 27, 2012 Originally Posted by TieDyedDevil Thank you, guys. I appreciate the insights.I get the sense that most copyright violators in this situation are fortunate to be flying under the radar. In a sense; bootleg recordings, if distributed, are infringing uses. But in another sense, it's not like there is a lot of money to be made off of trying to enforce mechanical and broadcast royalties off a tape of a 1984 dead show on the archive.org : if it's not diluting anyones useful IP (buy providing an alternative version to the paid version) and it's not a sought after thing in its own right (how many times is string cheese show gonna get played, really), then who would be bothered to pursue that enforcement.So maybe lucky, but it's not surprising. And I think it supports the arts in a particular way that clearing these works does not, so while the law says one thing, the spirit of the law (as laid out in art. 1 sec. 8 of the US constitution) seems to support taping. IMO. Link to comment Share on other sites More sharing options...
Moderators daddymack Posted November 27, 2012 Moderators Share Posted November 27, 2012 Originally Posted by TieDyedDevil Thank you, guys. I appreciate the insights.I get the sense that most copyright violators in this situation are fortunate to be flying under the radar. Basically, as long as they are not raking in bundles of cash, the cost of legal action outweighs the return; that said, it certainly didn't stop the RIAA from prosecuting the suckers that were unlucky enough to be caught downloading illegal copies of songs from Napster et al.; they were really being used as an example of what the law can do, and this could be coming for the 'tapers'. If people are distributing your shows, make sure there is no 'smoking gun' tying you to any implicit acknowledgement of their activity... I'm jus'sayin'... Link to comment Share on other sites More sharing options...
Members TieDyedDevil Posted November 27, 2012 Author Members Share Posted November 27, 2012 Originally Posted by scarecrowbob In a sense; bootleg recordings, if distributed, are infringing uses. But in another sense, it's not like there is a lot of money to be made off of trying to enforce mechanical and broadcast royalties off a tape of a 1984 dead show on the archive.org : if it's not diluting anyones useful IP (buy providing an alternative version to the paid version) and it's not a sought after thing in its own right (how many times is string cheese show gonna get played, really), then who would be bothered to pursue that enforcement. Yah. IIUC, the GD tapers stop trading a show in the event that the GD organization releases the show commercially. Which is as it should be. But that's still a matter of an agreement or protocol between the band and its fans.In the case that a tape contains cover songs, it'd probably be a nightmare for the rights owner to (attempt to) prove infringement and collect damages. So maybe lucky, but it's not surprising. And I think it supports the arts in a particular way that clearing these works does not, so while the law says one thing, the spirit of the law (as laid out in art. 1 sec. 8 of the US constitution) seems to support taping. IMO. Interesting (letter vs. spirit). I'd like to think that this is a reasonable application of the law. I'm also sure that I'd prefer to not find myself trying to establish a legal precedent. Link to comment Share on other sites More sharing options...
Members TieDyedDevil Posted November 27, 2012 Author Members Share Posted November 27, 2012 Originally Posted by daddymack Basically, as long as they are not raking in bundles of cash, the cost of legal action outweighs the return; that said, it certainly didn't stop the RIAA from prosecuting the suckers that were unlucky enough to be caught downloading illegal copies of songs from Napster et al.; they were really being used as an example of what the law can do, and this could be coming for the 'tapers'. The RIAA took action against people who redistributed music that has a known and significant commercial value.I wonder whether they could *financially* justify going after tapers... Seems like a lot of work for little gain, unless they count on leveraging settlements rather than going to court. If people are distributing your shows, make sure there is no 'smoking gun' tying you to any implicit acknowledgement of their activity... I'm jus'sayin'... Good advice.I have a vested interest in this discussion since there are parallels between what the taper communities are doing and what I'd like to do with recordings of my band (albeit on an even smaller scale). My inclination is to play it safe and simply drop covers from our repertoire. Link to comment Share on other sites More sharing options...
Members Nijyo Posted December 13, 2012 Members Share Posted December 13, 2012 Tapir-friendly? [ATTACH=CONFIG]350552[/ATTACH] Link to comment Share on other sites More sharing options...
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