Just because it is easy to use your phone to record a clip at concert doesn’t give you the right to do very much with the recorded clip. There are multiple sets of legal rights at play in every concert performance which include:
- Copyright in the music compositions and lyrics (often controlled by the publisher or sometimes the artist)
- Copyright in the performance (often controlled by the label)
- Trademarks of the band, club or venue
- Band’s right of publicity
- Contractual rights granting you the privilege to attend the performance (often on the ticket stub, or posted signs at the venue, or the terms and conditions of a website)
- License granted by ASCAP or other rights manager to the club or venue for the performance.
Each of these rights gives the holder a monopoly to do certain things or exclude others from doing certain things. Excluding others (ie you with the recording device) can be taken seriously by all the rights holders. For example, club or venue owners can exclude others from recording on their premises. This means they can confiscate your phone until the end of the performance or ask you to leave if you are caught recording a clip of the concert.
Technically speaking, recording a clip of a concert for your own personal use is probably considered fair use. If you post the recoded clip to a website, chances are that one of the rights holders listed above will contact the website and request that the clip be taken down. If this happens, the clip will come down and you may forfeit your right to access or use the website where you posted the infringing clip.
Rights holders generally try to maintain a balance when it comes to enforcing their rights; since, they don’t want to alienate their fans and patrons. Although, given the history of how aggressively the music industry went after folks who were targeted for illegally downloading music… this could change.
BY: Vanessa Kaster, Esq., LL.M.
See also: Other posts on music copyright at https://iplegalfreebies.wordpress.com/category/c-o-p-y-r-i-g-h-t/copyright-music-copyright/; Music Law 101: Legal Issues Surrounding the Recording and Posting of Concerts, by R. Friedberg; @iplegalfreebies and www.kasterlegal.com.