Copyright Infringement - Where do you draw the line?

[Jack_]

I don't mean to stir the pot or anything, but it's an interesting topic I had some questions about.

One thing I've been thinking about lately was playing covers in a band. Is performing someone elses song an infringment of the owner's right? If so, how do you obtain permission?

Is that why the Tab or sheet music sites are being forced to close down? It's an infringement to "reverse engineer" someone's song?

Clicking "New Posts" and seeing 20 or so Read Me Forum Rules stickies kind of brought this to mind and thought it was worth discussing. Rule #4 states (and I hope I'm not breaking the rules by copying this):

4. Copyright & Privacy Issues
Do not post or PM copyrighted material, links or offers to unauthorized copies of copyrighted material. Any such offer, material and/or links to such material elsewhere that have been determined to be posted without permission by the copyright holder will be removed without notice. Offending members will be subject to immediate ban.

Do not post private email and PM messages you have received without the express permission of the sender. These are covered under legal and copyright laws. If you receive rude or abusive private messages on this forum, please contact or forward the message to the moderators for assistance. Posting private information about forum users that is not available otherwise publicly will not be tolerated and will result in immediate permanent banning and reporting to the offender’s ISP.

Sounds like a zero-tolerance policy. And on the surface I understand and agree. But of course it begs the question of where you draw the line.

In theory, it's pretty simple, if you didn't create it, obtain permission to post it, or it is freely distributable or public domain, don't post it. In theory, that seems reasonable, in practice it could be difficult but I agree the correct thing to do.

Going back to my first question. If playing someone elses song is infringement, wouldn't recording and posting your version of it violate rule #4?

How about posting a youtube link to something that someone else posted on youtube violating the copyright. That would violate the rule as well, but happens a lot.

I don't mean to single anyone out but a post comes to mind of a person looking for a the dimensions of space needed for a kit. Someone posted some drawings of what looked like somehting from a Roland brochure. I doubt they got permission to do so, so wouldn't that violate this zero-tolerance policy?

How about your avatar? I used a Web site to create mine, and I think it was okay to save it locally and use it elsewhere. I think that was the intent. But was that site authorized by SouthPark to do that? I'm not really clear on that and I certainly don't have it in writing.

But back to the Roland documentation. Is it common sense that Roland wouldn't mind it being used? But can we really draw the line like that? Who are we to say?

It's an interesting topic for sure. I've had some of my "content" stolen before so I know what it's like. I can say I've tried pretty hard to play by the rules. But it can be tough. I'm interested to hear what other people think and have to say.

[Fullback32]

Found this on the web. http://publishing.wsu.edu/copyright/music.html Now all that being said, I can guarantee no band I was in ever paid attention to it, mainly because we didn't know that we were supposed to do it. I would guess that almost all cover bands aren't aware of the rules...though I doubt to many of the bands whose music being played worry about it too much. Probably trying to keep up with all the cover band would cost more in administration than they would collect in fees. Sounds, though, like it's a clubs responsibility to obtain the license...not the bands.

Playing Music in Public. The right to perform or play a song in public is one of the exclusive rights of the copyright holder. You will need to get permission or a license if you play music in public unless the music is in the Public Domain or the use of the music qualifies as fair use. But the line between what is private and what is public is complicated. Prior to the Music Licensing Act in 1998 , some court cases have drawn the line and declared public uses of music to be copyright infringement unless licensed, as follows:

Radio stations, bars, night clubs, and juke box operators;
Hotels that play the radio for guests through speakers or headphones;
Restaurants;
Stores;
Telephone intercom systems that play music while callers are on hold.

Now the Music Licensing Act draws the line between private and public in terms of the type of public establishment, the size, and the stereo equipment used. Restaurants and bars under 3,750 square feet or retail establishments under 2,000 square feet are exempt from paying fees for playing radio or TV broadcasts for their customers. Public places of any size that play radio or TV broadcasts are exempt from paying fees if they use no more than six external speakers (not more than four speakers in each room) for playing music. Public places that play CDs or hire live musicians (that play cover songs or copy songs) are still subject to being licensed for fees.

You can lose the private home exemption and be subject to a license if you charge anyone admission fees to listen to music.

[Fullback32]

Here's and interesting story concerning this very thing. Holy crap! My band back in the early 80's used to play Van Halen and Led Zep songs all the time!



Van Halen, Jimmy Page and others allege copyright violations by Vail business owner


Steve Lynn
Vail, CO Colorado
February 22, 2007

VAIL - Several famous musicians are suing a local business owner for copyright infringement for allowing cover bands to play their songs without permission.

Van Halen Music Company, Jimmy Page, Robert Plant, John Paul Jones and Patricia Bonham are all named as plaintiffs in a lawsuit alleging that Vail business owner Steven Kovacik allowed public performances of their songs at 8150, the lawsuit says.

Kovacik, owner of 8150, said he would not comment on the lawsuit. The lawsuit, which was filed in U.S. District Court in Colorado, names Kovacik and a company named Big Snow Ball LLC as defendants.

The plaintiffs alleged 10 counts of copyright infringement because the defendants allowed bands to play 10 copyrighted songs on Jan. 15 and 16 at 8150, the lawsuit says. The plaintiffs are suing for as little as $750 per song and as much as $30,000 per song, plus attorneys' fees, according to court documents.

Anthony Juarez, an event coordinator who represents the local band initfortim-who opened for female cover band Lez Zeppelin at 8150 on Jan. 15-said he was surprised by the lawsuit.

"Bands cover famous songs all the time," Juarez said. "We cover songs sometimes."

The lawsuit contends that the defendants allowed public performances of songs such as "Heartbreaker," "Whole Lotta Love," "Rock and Roll" and "Black Dog," written by Jimmy Page, Robert Plant and other members of Led Zeppelin; "Hot for Teacher," written by Eddie Van Halen and David Lee Roth of Van Halen; and "You Shook Me all Night" written by Angus Young, Malcolm Young members of AC/DC.

The defendants failed to obtain a license agreement from the plaintiffs or the American Society of Composers, Authors and Publishers, according to the lawsuit.

Conor Farley, a Denver attorney for the plaintiffs, did not return phone calls seeking comment Thursday night.

http://www.vaildaily.com/article/20070222/NEWS/102220054

http://www.coverville.com/archives/2007/02/van_halen_led_z.html

[Fullback32]

OK...one more. Here's info about getting permission. SUED THE GIRLS SCOUTS????? Wow.

Music - Nearly all music performances in public require permission. If you intend to play music in public, you will have to get permission beforehand. There are permission licenses for playing music on telephone hold, intercom systems in stores, restaurants, and other public places, and for jukeboxes in public places. All radio stations that broadcast music are required to have a license. Even nightclubs that hire bands for live music have to have a permission license if the band intends to play cover music, or music that is popular and protected by copyright. One licensing agency demanded that the Girl Scouts pay permission fees for singing copyright-protected music around their campfires. The agency representative was reported to have said, "They buy twine and glue for their crafts…they can pay for their music, too." All music is protected by copyright except for music that is in the Public Domain. Of all artistic works protected by copyright, music is the most licensed and regulated. The most efficient way to get permission is to contact all licensing agencies. Several types of music licenses and songs are licensed by different agencies. These are the agencies that license most music in the United States:

American Society of Composers, Authors, and Publishers (ASCAP)
(212) 621-6000
[email protected]

https://www.ascap.com

Broadcast Music, Inc. (BMI)
(800) 925-8451

https://www.BMI.com

[email protected]

Society of European Stage Authors and Composers (SESAC)
(800) 826-9996
(212) 586-3450
[email protected]

Harry Fox Agency

https://www.harryfox.com

http://publishing.wsu.edu/copyright/permission.html#Music

[Alan VEX]

Sorry about the "new post" thing. We (mods) are discussing the "Rockband" songs and the risk our forum faces with their posting. Obviously, we will be deleting this thread. We were taking the time to discuss it first.

[daveybabes]

Dude!

All the tribute bands here are in big trouble then, they look and sound like em!

and u can forget having your fave drummers as inspiration too, if any of em turn up whilst you are playing at the Dog and Duck to a packed audience of 18 people and spot "their" licks and fills ya in big trouble.

whistling tunes in public may be outlawed, no humming either ... ha ha oops i said ha ha has anyone copywrited that yet?

[Frank]

Those dang Girl Scouts are going to ruin it for all of us!

Having played in lots of dives... I meant drinking establishments in my day, I understood that the owner of the joint paid a fee to ASCAP and BMI, if he intended to have bands play there. That covered the artists playing cover songs.

I always thought this was pretty bogus. I certainly understand laws and penalties for making copies of someones recording of a song, then selling it for profit. This is the artists' work, and they would not be receiving royalties from the sales. But if Joe Blow & the Nightstalkers want to perform a half-baked version of "Louie Louie", why should the Kingsmen care. If anything, it's promoting their song.

[skod]

The Harry Fox agency, linked above, is the primary focus for licensing of material in the US for mechanical purposes: making CDs and so on. There are a handful of authors who do not use them and insist on doing their own thing. A great example is Disney- most anyone here will never do a Disney tune, but I can assure you that they run you through the wringer if you do decide to do so- and they have deep, deep pockets for pursuing those who infringe. But by and large, most material can be licensed for duplication through Harry Fox. For performance, you need to find out a) who the publisher is, and then B) whether they are ASCAP, BMI, or somebody else, and contact them there for the performance license.

Most disk duplicating companies now require written mechanical license statements for all cover tunes before they will duplicate your CDs. This is thanks in no small part to the Digital Millenium Copyright Act and the actions of the RIAA, who have been flexing their muscles and going after token infringers (and getting absurd settlements) just to send a warning to the world lately.

But (although I am not a lawyer), the law here is well established, and is nothing new. Legally, someone somewhere in the process of making music needs to get the license to perform or duplicate/sell anyone's tunes. http://www.theentertainmentlawblog.c...lawyer__1.html. Some clubs do this on a blanket basis, some don't. As a result, it's probably worth looking into getting your own clearances.

The fact that a lot of people have gotten away for a lot of years with performing cover tunes without licensing doesn't change things: if they decide to screw with you, they can and will. This won't change most people's approach- most everyone will continue to cover without licensing. Which then leads to the case like the 8150 situation, where someone just decides to go enforce their rights to their music, and hammers the crap out of everyone in their path. The DMCA and the RIAA's success in screwing with people have just made it marginally more likely here lately.

My wife sings with the Sweet Adelines, and they are _unfailing_ and downright militant in their efforts to obtain proper clearances and licensing for each and every tune they do. They do it once, and then they are in the clear for their performances. Rockers could do it as well, and the bigger you get (and the more money you make), the more important this is to do- because sooner or later an ASCAP rep will catch your show, and walk up and ask the question of you or the club owner...

Getting the clearances is relatively cheap (and sometimes even free for the asking!), and is one of the ways that the folks who wrote the tunes get paid for their efforts after the record companies have taken their 99.9995%... And if you do original tunes, setting up your own publishing company and registering it and yourself with ASCAP or BMI is the only way you'll ever see royalties for airplay (for example). It's just a part of the business here. Once money changes hands, thing get more complicated: getting paid is hard, and this is *the* mechanism for the composer of the tunes.

[Jack_]

Fullback, that is some incredible information and examples. Thanks for posting it. Of course, if you copied those articles you probably infringed on the writers' copyrights. That is by no means an attack on you, just another example of maybe what we take for granted or common practice is indeed infringement.

Sorry about the "new post" thing. We (mods) are discussing the "Rockband" songs and the risk our forum faces with their posting. Obviously, we will be deleting this thread. We were taking the time to discuss it first.

No problem, and like I said, I'm not trying to stir the pot or complain about the rules being posted or enforced. I understand and agree with them. But I also realize how difficult it could be to live by the letter of the law and perhaps an "immediate ban" might not be appropriate in all cases.

I don't think this thread should be deleted. It's a very interesting topic and I think a lot of us can learn from discussing it.

[Frank]

Let's just say, hypothetically, one were to record a few cover songs on a CD, and self produce enough copies to give to friends and family (not that I've ever done such a thing ), why would the composer, publisher, or original performer care. It's not the original recording, and no money is being made or lost (except for the cost of actually producing the cover CD).

I can understand the RIAA's position on "piracy", in that copies of the original recordings are being distributed without the creator's/owner's permission. This is how the composers and performers make a living, and it's money out of their pockets. But if it's a cover, and no profit is being made, wouldn't one simply be paying homage to the song, and promoting it?

[Fullback32]

Fullback, that is some incredible information and examples. Thanks for posting it. Of course, if you copied those articles you probably infringed on the writers' copyrights.

DOH!!!!!! Will Lars Ulrich be ringing my phone soon???

[Fullback32]

Let's just say, hypothetically, one were to record a few cover songs on a CD, and self produce enough copies to give to friends and family (not that I've ever done such a thing ), why would the composer, publisher, or original performer care. It's not the original recording, and no money is being made or lost (except for the cost of actually producing the cover CD).

I can understand the RIAA's position on "piracy", in that copies of the original recordings are being distributed without the creator's/owner's permission. This is how the composers and performers make a living, and it's money out of their pockets. But if it's a cover, and no profit is being made, wouldn't one simply be paying homage to the song, and promoting it?

Dang, you know I hadn't thought about it too much back in "the day". In '82 my band put together a demo tape containing three originals and a cover of Black Sabbath's "Paranoid". We didn't even think that it was "infringement" as we were making absolutely no money off it. We said that if anything came of it (which nothing ever did), we would get permission. Maybe the labels we sent it too were afraid of the copyright issues and that's the reason we were never signed. Yeah, that's what it was, couldn't have been just because of "us".

[Alan VEX]

No problem, and like I said, I'm not trying to stir the pot or complain about the rules being posted or enforced. I understand and agree with them. But I also realize how difficult it could be to live by the letter of the law and perhaps an "immediate ban" might not be appropriate in all cases.

Na, no ban was really considered. The member just needed to know that it's a law we all must abide by and the posting of the recordings were risky to he and any place/forum he decided to post them.

[skod]

Doesn't matter. By definition they own the material, and they can say what should happen with it- up to and including saying "no, you can't perform it". Most rockers fly under the radar, and nobody notices- but once the suing starts, it gets silly and ugly fast. A good example would be if you had a disk duplication company make 20 copies of your cover of "Louie, Louie" (an intresting legal history to that song, BTW: http://en.wikipedia.org/wiki/Louie_Louie ). The publisher could then sue *the disk duplication company* and oh by the way you- but they probably wouldn't bother too much with you, since you have less money than the disk folks and weren't going to make any money on it, but the disk guys have _bread_ invested... So, the disk folks, to cover their own butts, require legal documentation that you have the license before they'll take the business of making your copies.

As to "why would they care", the reasons vary. All I can say is never piss off the Mouse: even if there's no money to be made on it, they'll go after people just to enforce their rights, presumably under the heading of "if you don't use them, you'll lose them". Some artists and publishers don't care all that much and never enforce their rights to the music, some are downright militant about it and are just looking for someone to go after. You really don't want to run afoul of the latter...

[Fullback32]

As to "why would they care", the reasons vary. All I can say is never piss off the Mouse: even if there's no money to be made on it, they'll go after people just to enforce their rights, presumably under the heading of "if you don't use them, you'll lose them".

Well dang, there goes my brilliant idea for a metal version of Hakuna Matata!