Live Electronic music performances

[Doc Bernard]

Your last phrase says it plainly:

even if the law is (by necessity) black and white.

That is the ultimate yardstick you have to use. Saying or trying to justify anything else ignores that fact. And unfortunately, the basketball analogy does not work, when it comes to works of art. By creating a work of art by using someone else's work of art is not the same as having a basketball and someone taking a picture of that basketball. It's more of someone taking a picture of that basketball (work of art), then someone else, not authorized, taking that picture as their own, or for their own purpose.

Keep in mind Youtube yanks vids all the time for infringement. And I applaud them for it. And it's in their terms of service that you say the content of your video is wholly owned by you or that you are authorized to post the material. If it isn't......well now we have false statements on top of Copyright Infringement.

 

[custerc]

Your last phrase says it plainly: That is the ultimate yardstick you have to use. Saying or trying to justify anything else ignores that fact. And unfortunately, the basketball analogy does not work, when it comes to works of art. By creating a work of art by using someone else's work of art is not the same as having a basketball and someone taking a picture of that basketball. It's more of someone taking a picture of that basketball (work of art), then someone else, not authorized, taking that picture as their own, or for their own purpose.

Keep in mind Youtube yanks vids all the time for infringement. And I applaud them for it. And it's in their terms of service that you say the content of your video is wholly owned by you or that you are authorized to post the material. If it isn't......well now we have false statements on top of Copyright Infringement.

Sure, they pull vids down. Note that that is "delete offending videos" and not "threaten their users with felony charges and $250,000 fines." Why don't they do that? Because that would be ridiculous; it's just kids taking some videos of concerts they've been to. I'm not saying what the kid's doing isn't infringement, what I'm saying is there's no need to turn it into a federal case on this board because in the actual world no one is going to turn it into a federal case.

Mostly, I just feel the response to his post was overly pedantic and unnecessary. Sure, he should be aware of the potential legal ramifications of what he's doing. But people could have actually watched his videos, given a few comments, and then added as a postscript "by the way, FYI what you're doing is technically copyright infringement because you don't have the rights to these songs unless you've talked to the record companies. If this is something you want to pursue professionally, you may want to look into that."


Just strikes me that would have been a more appropriate, measured response than OMG YOU ARE TEH DEVIL AND THE FEDS ARE GOING TO KICK IN YOUR DOOR AND SUE YOU FOR 954376498267248967429876248976429867248672 DOLLARS!!!!!!!!!!!!!!!!!!!!!!


(I am exaggerating slightly, but you get my point).

 

[David W. Richardson]

I think our overall response to the OP has been appropriate. Especially Doc's. It doesn't matter whether it's a kid or an adult, whether they make money on it or not -- copyright infringement is a federal crime, and the OP risks a huge fine and prison time. If he's serious about wanting to make a career out of this, he has to be professional. Whatever the case, he has to be aware of the legal risks.

 

[Doc Bernard]

Custerc, that is 2 separate issues. Youtube and Vimeo would not be issuing the fines, rather, they would be susceptible to those same penalties if they left it up, knowing or being told it was copyright infringement. Just like any other site that knowingly hosts copyright infringed works. By pulling it down as soon as notification is given, they show they are doing due diligence, and that mitigates their liability. The fines come from the government, and the lawsuits come from those whose art was stolen.

I am not saying that there is a guarantee of the Federal Government absolutely slapping a penalty on you or anyone else. But they are within their rights to do so if you violate the Copyright Protection Act.

It really comes down to personal responsibility, especially if this is a business goal for someone. Why do it now? Would you be happy about someone taking your work, not getting your permission, not giving you credit, and could potentially be making money off your hard work? Not saying the OP was making money with this one, but what about the next one? And the one after that? The principle still stands, copyright infringement is taking someone else's work for your own purpose, without permission. It's that simple.

I appreciate your thoughts on this, Custerc, though not your position. I couldn't justify theft, regardless of who does it. Too many people think Copyright Infringment is okay because "__________________________". And shows they do not respect the hard work of others, and they think they are entitled to do so just because its there.

The question has to be asked: Custerc, if you had your work stolen, and the person who took your work as his/her own posted that work here, and claimed it was their work, what would you do? And what would you expect the admin of this site to do about it?

What David was giving were the risks and worst case scenarios, and he is absolutely right about what can happen if someone gets "a bee in their bonnet" about it. Yes, they can prosecute to the fullest extent of the law if they want. The owner of the copyright can sue. Will they? I don't know. Again, personal responsibility, education and/or integrity would have never let this happen in the first place.

This is a community of artists and technicians, both professional and amateur alike. Each of us has different aspirations as to our futures. But as a community, we have to look out for one another, and for other artists/technicians. If we see one artist getting hurt, we should stand up and say "hold it a second", and protect their work. We also have a responsibility to teach new film-makers to help protect other artists. The OP may have made mistakes on what and how he shot his video. Okay. Now my intention is to show him how to avoid doing it again, but have him continue learning film-making. The first step in doing that is seeing/realizing the mistake himself. And many times you cannot see the mistake until it is pointed out to you.

Think about it, his first post here was sharing something that could be considered infringement, even though he states he is a television host and a freelance videographer. He should know something about copyright infringement by now, wouldn't you say? So the comment about him being a kid is not as relevant, than if he was an elementary school student.

 

[David W. Richardson]

I totally agree with Doc here, except I would make one small amendment to what he said...

I am not saying that there is a guarantee of the Federal Government absolutely slapping a penalty on you...

Keep in mind that it's not just a penalty/fine, but you also risk serving a number of years in a federal prison. Is it really worth the risk?

 

[custerc]

I totally agree with Doc here, except I would make one small amendment to what he said...



Keep in mind that it's not just a penalty/fine, but you also risk serving a number of years in a federal prison. Is it really worth the risk?

Not if that's the risk, but has that ever happened? Has anyone ever been sent to prison for posting a concert video online on a video sharing website? For that matter, has anyone ever even been fined heftily by the feds for putting a concert video on youtube or vimeo? I mean, I don't know for sure, but I have to imagine the answer to that question is no. I did a few google searches to see if I could find any cases like that; admittedly they were quick ones, but I didn't find anything.

So while I agree the kid should be aware of the law, is threatening him with repercussions that would be literally unprecedented really the way to go about it?

 

[custerc]

It really comes down to personal responsibility, especially if this is a business goal for someone. Why do it now? Would you be happy about someone taking your work, not getting your permission, not giving you credit, and could potentially be making money off your hard work? Not saying the OP was making money with this one, but what about the next one? And the one after that? The principle still stands, copyright infringement is taking someone else's work for your own purpose, without permission. It's that simple.

I appreciate your thoughts on this, Custerc, though not your position. I couldn't justify theft, regardless of who does it. Too many people think Copyright Infringment is okay because "__________________________". And shows they do not respect the hard work of others, and they think they are entitled to do so just because its there.

The question has to be asked: Custerc, if you had your work stolen, and the person who took your work as his/her own posted that work here, and claimed it was their work, what would you do? And what would you expect the admin of this site to do about it?

Like I said, I have had my work stolen. If you go onto any torrent site right now, you can download my most recent album (which you should be paying $10 for) in full. And yes, I'm not happy about that (though there's not a lot I can do about it). I've also had people claim they made it, and have taken steps against them.

I've also had people take videos of my concerts and post them online, like what the OP did here, and I have to say I don't care about that even a little bit. Neither does anyone at my record label. In fact, we love it!

Regardless of the legal definitions, from the perspective of a human being, posting a concert video isn't taking anyone else's work as your own. After all, the video title generally says the name of the band that's making the music; as far as I'm concerned as a person, that's all the credit I need. If someone watches that video, they know who made the music, and they probably know how to use google; they'll find me. And if the person who posts the video takes credit for shooting the video that seems fair, since they did shoot the video.

If someone were to post a video of me in concert and claim it was them, claim they'd written the song, or start selling "Live in Concert" DVDs of it that would be an issue, of course. But I personally would never take any actions against a concert video unless I had evidence they were doing something like that. As an artist, it just doesn't make sense, because the video is helping me promote my music, and the maker is presumably a fan themselves. Why destroy some free promotion and alienate a fan in the process? It takes time, money, and it's totally counter-productive. For what it's worth, the label I'm on feels the same way.

Not saying all artists feel this way, of course, but from what I can tell, the kid is talking to these artists beforehand and they're OK with it. Moreover, like I said earlier, given the genre of music he's shooting, a lawsuit seems especially unlikely; these guys and their labels likely have a higher level of respect for "derivative" works like this considering their entire genre pretty much is founded on sampling and other "derivative" forms.





Look, I'm not saying it's not infringement, or that he should be doing it. I'm just saying let's also be realistic. Is it technically possible he could spend time in prison for making one of these videos? I suppose, sure. But I suspect he's more likely to be strangled tomorrow by a giant radioactive octopus from space than he is to ever do jail time for concert clips on Vimeo....

 

[David W. Richardson]

As long as he understands the risks, both legally and professionally, then it's his decision whether he wants to obey the law or not. Personally, I don't make decisions like this based on whether or not I'm likely to get caught. There is a right way and a wrong way. I choose the right way.

As to the question of whether or not anyone's ever gotten burned for copyright infringement, ask these two...

http://articles.cnn.com/2009-06-18/...ry-instructions-fined-sheryl-crow?_s=PM:CRIME

http://www.boston.com/news/local/ma...ent_fined_675000_for_illegal_music_downloads/


He may be 'talking to the artists beforehand', but it may not be the artists who hold the copyrights -- it may be their record labels.

As you can probably tell, I have strong opinions about obeying the law, especially laws designed to help me keep my work from being stolen by others. You say that nobody is hurt by this kid putting videos of the concerts on the web. Sure they are. If I can listen to this band's music for free, why should I buy their CDs?

Bottom line is, like it or not this is illegal. Whether or not he is 'likely' to suffer any consequences for it really isn't the point. It's the law.

 

[David W. Richardson]

So while I agree the kid should be aware of the law, is threatening him with repercussions that would be literally unprecedented really the way to go about it?

First off, nobody threatened anyone.

Secondly, the repercussions wouldn't literally be unprecedented -- lots of people have found themselves in court facing charges of copyright infringement.

Frankly, I resent people saying or implying that 'it's no big deal'. For entertainment creators it's a VERY big deal.

 

[custerc]

Yes, of course people have found themselves in court on charges of copyright infringement. But for posting live video (or audio) that they recorded themselves of a band? I've never seen a case like that, and the two cases you linked to above are just illegally downloading MP3s, which is not the same thing.

It may be equally illegal, but you have to admit that conceptually, they are two different things. One is taking a product that's available for purchase and acquiring it for free. The other is creating ones own "product" that includes someone else's IP -- but not in a form that's being sold -- and distributing it for free. By that I mean, the band isn't selling the same video this kid shot for money. Nor are they selling the audio he recorded, although they own the rights to that song.

And I'm sorry if you resent it, but as someone who creates music and has been in the exact position these artists are in, THIS IS NOT A BIG DEAL. That's just my opinion, but I think if you were to take a poll of musical artists, you'd find an overwhelming majority agree with me, because videos like this are not a product we sell, or will ever sell.

Why should you buy a CD when this guy has made videos? Because the CD is recorded by professionals, in a professional environment. It's fine tuned to your sound system, and it's going to sound the best it possibly can, rather than sounding like something that was recorded through a tin-can phone. Why would you buy a live concert DVD if this guy post live videos? Because they'll feature top quality sound, direct from the board and probably specially mixed and mastered, not to mention multiple cameras, special effects, whatever. There's no reason to explain this. Watch the videos, listen to an actual CD, and you'll have answered your own question.

People still buy concert DVDs and CDs, despite the fact that you can hear pretty much any song imaginable on Youtube. There is a reason for that. What's ruining the music industry isn't people like the OP, it's people like the ones in your articles, who download products that are for sale without paying, and distribute (or even sell) them to others. People making concert videos are at least helping with a little promotion in an era when most labels can't afford to put up much for promo because their albums are available for free on the internet BEFORE they're even released in stores.

Free concert videos may be illegal, technically, but they're NOT the problem here. Frankly, as an artist, I don't want fans to be so afraid of being sued that they will stop doing things like this to promote my music. And as a videographer, I say...meh. When the video's professional, it's time to worry about copyright laws and profits and what have you. Until then, I really don't think it matters.

I understand you feel differently, but I think you're in the minority there, since there don't seem to be any examples of cases involving someone being sued for posting a concert video they shot themselves online....after all, there are TONS of these things going up every day. If people were really getting sued for it, you'd think there'd be some trace of that on the internet...

 

[Doc Bernard]

Free concert videos may be illegal, technically, but they're NOT the problem here. Frankly, as an artist, I don't want fans to be so afraid of being sued that they will stop doing things like this to promote my music. And as a videographer, I say...meh. When the video's professional, it's time to worry about copyright laws and profits and what have you. Until then, I really don't think it matters.

I understand you feel differently, but I think you're in the minority there, since there don't seem to be any examples of cases involving someone being sued for posting a concert video they shot themselves online....after all, there are TONS of these things going up every day. If people were really getting sued for it, you'd think there'd be some trace of that on the internet...

But here it does. Because, as you said, it is illegal. Should we allow it to be shown here? Not in my book. It needs to be squashed as soon as possible, if there is ANY evidence of CI.

If only one person objects to the illegality of it, or sees that it is CI and notifies a mod, it needs to be gone. The only reason I haven't flagged that post myself is it made a good conversation point about copyright infringement.

 

[David W. Richardson]

Downloading music illegally is exactly the same thing -- it is copying an artist's work without their permission. Period.

Saying nobody's been prosecuted for shooting footage of a band and posting it online is like saying nobody's been prosecuted for stealing a hot pink Mercedes......yet. People have been prosecuted and sued for illegally copying someone else's work, and that's what we're talking about here. (And BTW, nobody had ever been prosecuted before for downloading music, but that didn't stop the court from levying a $1.9 million fine on that single mom.)

The bottom line is we are a community of intellectual property creators. We have a responsibility to educate others about copyright infringement, and to support the protection of an artist's work. If you choose to allow copying of your work, that's your business. But every content creator has the right to control their own work. And we, as a community, should stand against any illegal use of that work.

 

[David W. Richardson]

The other is creating ones own "product" that includes someone else's IP -- but not in a form that's being sold -- and distributing it for free.

Of course the product is being 'sold'. The band gets paid to perform live. How often they're booked and how much they're paid relates directly to how much of an audience they can draw for the venue. If people can watch and listen to their live performances for free, they may not pony up the money to attend a live show.

 

[custerc]

Of course the product is being 'sold'. The band gets paid to perform live. How often they're booked and how much they're paid relates directly to how much of an audience they can draw for the venue. If people can watch and listen to their live performances for free, they may not pony up the money to attend a live show.

A band's live show is a very different product from a video clip of a live show that has one song and terrible audio quality. If that could really replace a live performance for you, let's be honest, you weren't going to buy a ticket anyway.

It's really not the same thing. You consider it conceptually the same, OK, but in a literal sense, they are two different things.

Anyway, I'm about to get on a plane for a 13 hour flight, followed by some intense sleeping. I wish you the best of luck in your crusade against concert videos, but just for the record, as a MUSICAL ARTIST I support them, and would consider your persecution of them to be actively detrimental to my business.

 

[Doc Bernard]

"and would consider your persecution of them to be actively detrimental to my business. "

Very specific language you are using here. Are you indicating a legal threat is imminent against someone here? I hope not. Because the tone and wording indicates you are, and against a moderator who is on the side of the stated laws.

If you are okay with someone taking your work, great. You are the exemption to the purpose of the law. Do what you want with your art.

But I caution you in your language here. You have implied a legal threat here, and one that will not be taken lightly, sir. Tread lightly. Especially since you are not party to the infringement and you would have no standing in an action.

 

[David W. Richardson]

A band's live show is a very different product from a video clip of a live show that has one song and terrible audio quality. If that could really replace a live performance for you, let's be honest, you weren't going to buy a ticket anyway.

Perhaps. But it's still a sellable product. Bands release live albums all the time. And if you turn a blind eye to the kid recording the concert with mediocre equipment, then how can you justify stopping the guy who is headed in there with a DVX100b or an EX1 and a Zoom H4n?

It's really not the same thing. You consider it conceptually the same, OK, but in a literal sense, they are two different things.

It's exactly the same. He is illegally recording and distributing music. If I want to put a song in a video project, I have to secure the rights to the lyrics, the music and the performance. It doesn't matter if I just want to put the video up on the web and not make a dime off of it. The same rules apply.

I wish you the best of luck in your crusade against concert videos, but just for the record, as a MUSICAL ARTIST I support them, and would consider your persecution of them to be actively detrimental to my business.

You are completely within your rights to embrace the video enthusiasts. But it's not your right, nor anyone else's, to make that decision for other artists. And it's not the right of the OP to ignore the law that protects artists.

 

[custerc]

"and would consider your persecution of them to be actively detrimental to my business. "

Very specific language you are using here. Are you indicating a legal threat is imminent against someone here? I hope not. Because the tone and wording indicates you are, and against a moderator who is on the side of the stated laws.

If you are okay with someone taking your work, great. You are the exemption to the purpose of the law. Do what you want with your art.

But I caution you in your language here. You have implied a legal threat here, and one that will not be taken lightly, sir. Tread lightly. Especially since you are not party to the infringement and you would have no standing in an action.

Is this a secret lawyer forum or something? No, that was not a "legal threat." I'm using "specific" language because I enjoy conveying my point precisely. As far as I'm concerned, this is just an intellectual argument on a forum; it's interesting. I have no intention of suing anyone. At the risk of overstepping the bounds of politeness, I think you may have your legal radar tuned way too high if you thought there was anything about that comment that implied I was going to sue, or threatening to sue, anyone.

 

[Doc Bernard]

I own a business and when I see words like that put that way, that means someone is threatening another with legal action for something. No, the radar is not too high, it's just right. You just chose the wrong set of words that coincidently are words used in a cease and desist order.

 

[custerc]

I own a business and when I see words like that put that way, that means someone is threatening another with legal action for something. No, the radar is not too high, it's just right. You just chose the wrong set of words that coincidently are words used in a cease and desist order.

I guess? I mean, if I had used them in a cease and desist order, I could see that, but again, I think the radar is tuned too high if you're interpreting everyday language as though the context was a cease and desist order, no? I'm curious about what, specifically, about what I said sounds legal at all. I think the "would" would be a particularly soft/bad choice if I were trying to make a legal argument that he had somehow damaged my interests....

 

[custerc]

Perhaps. But it's still a sellable product. Bands release live albums all the time. And if you turn a blind eye to the kid recording the concert with mediocre equipment, then how can you justify stopping the guy who is headed in there with a DVX100b or an EX1 and a Zoom H4n?

Is it a sellable product though? I don't think it is. The reason you stop (or at least talk to) the guy with the nice(er) equipment is because he could make a sellable product. But this...I mean, yes, you could post it somewhere and say DVDs were for sale, but I don't think these sorts of concert videos are sellable in the sense that anybody would buy them.

It's exactly the same. He is illegally recording and distributing music. If I want to put a song in a video project, I have to secure the rights to the lyrics, the music and the performance. It doesn't matter if I just want to put the video up on the web and not make a dime off of it. The same rules apply.

Yes, the same rules apply, but the action isn't the same. He's using music he doesn't have rights to as part of a larger piece that's then made public. This isn't the same as illegally downloading MP3s. The rules are the same, but the actions are not the same, fundamentally speaking. If what he did were the same as downloading MP3s, then he would have been downloading MP3s, because anything that's the same as downloading MP3s is also going to be downloading MP3s.

You are completely within your rights to embrace the video enthusiasts. But it's not your right, nor anyone else's, to make that decision for other artists. And it's not the right of the OP to ignore the law that protects artists.

Sure, but it's not your right to make that decision for these artists either. My point is just that if the OP has talked to them, and they feel the same way I do -- and it sounds like they do if we are to take the OP at his word here -- then there's no real reason to tell this kid he has to stop making these videos, even if it's technically copyright infringement.

I understand you feel differently, but I don't think that my being OK with what's technically infringement in this case has any bearing or implications for my take on it in other cases, nor do I think being soft on this case has any impact on other cases, or in any way indicates that I'm betraying other content creators or destroying their livelihoods.