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Permission for youtube and Facebook

We are a start up group and wanted to put snippets of our performance on youtube and Facebook.  How do you handle gaining permission from singers, instrumentalists, and composers for this?  Most of our music is original or cpdl, and the original stuff we have permission to post from the composer.  Do you have singers sign a permission form that lasts for a certain time, or, I guess I am wondering how anyone out there handles posting pictures and or video of performances in general.  At what point does this usually occur, such as is this something someone once accepted into the group signs immediately, or just before a video or photo shoot occurs, and how long does it stay valid?  Does anyone have any suggestions on finding forms like this to use on the web, or should we make our own?
Thanks!
Amy
Replies (3): Threaded | Chronological
on December 20, 2011 3:03pm
Hi, Amy.  I'm afraid that your question is pretty general, and any answers would have to be very specific.  What kind of "group" are you starting?  School, church, community, private?  This can make a difference.  I don't think you need to worry about school ensembles, perhaps not church ensembles, and in general not volunteer ensembles of any kind AS LONG AS it's understood as a condition of membership that this kind of thing is going to be done, and everyone understands that.
 
Would your instrumentalists be part of the ensemble, volunteers, paid or unpaid, union or non-union?  Again, it makes a difference.  Union contracts are VERY strict about this, and simply hiring instrumentalists does NOT entitle you either to record or distribute recordings (which is what YouTube and FaceBook are) without specific permission AND additional payment.  And again, if they are volunteers it needs to be understood that this is part of what is expected and they have to agree in advance.
 
For composers (or more specifically for copyright owners, since that's what counts), it's simply good sense to inform them, ask whether it's OK with them, and pay any usage fees they feel like asking for.  And even when you use music from CPDL, make sure that the music itself really IS in the public domain, and double check the copyright notices that are on the music.  Any new edition or arrangement of PD music is entitled to its own copyright, and if that copyright is claimed you must observe it.
 
To be completely safe, you should have an agreement form, and have it signed by every participant in any recording or video session.  I would suggest a simple letter of agreement giving you permission to use their singing (or playing) and their likenesses without payment.  And there is NO time limit on that unless you write one into the agreement--in other words, there is no "standard" time span.  That's what contracts (or letters of agreement) are for, to spell out the details so they can't be questioned later.  And it would be well worth the cost to have a knowledgeable lawyer look over any form you come up with and point out any problems with it, although any agreement acually written in obscure legalese will probably turn people off rather than reassuring them.
 
About putting "snippets" on YouTube or Facebook, I won't even attempt to comment.  Yes, everyone does it.  No, they do NOT accept responsibility for obtaining either copyright or synchronization rights.  All that is up to YOU!
 
All the best,
John
on December 21, 2011 4:41am
Hi Amy,
 
It is a complex issue.  As much as I respect John, I'm not sure he is 100% correct on this one.  Neither of us are lawyers, and copyright law isn't settled on this issue right now.
 
First, I have heard intelligent people give conflicting opinions as to whether YouTube videos are recordings or performances.  I am not sure whether that is settled yet.  But I am not a lawyer (IANAL), and I'm also not a scholar on copyright issues.
 
Second, you should call the publisher to ask for permission.  Good luck with that.  As an experiment, I contacted 25 or so publishers and asked them if they had any problem with me putting their work on YouTube.  They gave conflicting answers, so there is no industry standard on how to handle this issue.  
 
Here is what I wrote in the article for the Choral Journal entitled Technology for the 21st Century Choir in December 2009:
 
Copyright concerns on YouTube

Inevitably, the question of copyright comes up surrounding YouTube.   At the current time, there is no standard procedure for a choral director to purchase rights to perform a copyrighted piece of music on YouTube.

For the purposes of this article, I contacted more than 25 different music publishers and the Music Publishing Association in an effort to determine music publishing’s policy towards YouTube performances of copyrighted works.

It was a fascinating exercise, conducted through both email and telephone conversations.  In many cases, I could tell that the music publishing company representatives were interested in discovering what I was learning and they asked me as many questions as I asked them.  At other times, I had the distinct impression that the companies were formulating their YouTube policy during my conversation.  Asking the question seemed to force the issue.

The eventual responses from the music publishers can be classified into three groups:

1.     No permission or fee required.  There is a generous response from some music publishing companies and they don’t have any permission requirements or fees from choir directors.  These policies, however, may not be permanent.  One publisher stated that their current position was to not prosecute the activity while the courts, the Music Publisher’s Association and ISPs are all working on a fair settlement.
2.     Permission required.  Some companies require permission for their works to be displayed on YouTube.  They are likely to allow you to present the work online without payment, but they want a “used by permission” line on their website and acknowledge the publisher in some way.
3.     Fee required.  Some publishers attempt to apply the same mechanical and synchronization rights that are associated with DVD’s and CD’s in their YouTube policy.  One company, Beckenhorst Press, has created an “Internet Performance Form” that a choir can purchase for $10 that allows the user to put on their internet website or YouTube.

From this brief inquiry, I recommend the following policy when dealing with copyright questions surrounding YouTube.   

1.     There is no copyright issue for any work already in the public domain.   If the work is composed and published before 1923, don’t worry.
2.     If the work is composed after 1923, you should email or call the publisher with your request.  Be ready to tell them:
a.     You are a non-profit organization and you want to post an amateur performance on YouTube.
b.     Your performance is not “downloadable.”  This is of special interest to the music publishers because a downloadable performance would invoke fees associated with DVD’s.
c.      Most want to know the specific work and catalogue number, length of performance, and the length of time you want to display the work on YouTube.
d.     Be ready to acknowledge the music publishing company in your video with a “used by permission” label on some part of the video and in the description of the video on YouTube.
 
on December 21, 2011 9:59am
Amy & Philip:  I agree completely:  no one without specialized training in copyright law as well as a law degree can give any kind of binding advice.  All we can really do is pass on what we understand, to the best of our abilities, about the law itself, and sometimes about how it is being applied if we happen to have that information.
 
But I'm intrigued by Philip's statement, "First, I have heard intelligent people give conflicting opinions as to whether YouTube videos are recordings or performances."  Aren't they clearly recordings OF performances, since any recording no matter how or where it is made is a recording (whether digital or analog) of living human beings engaged in performing (unless it's computers writing music for other computers, but it still has to be performed in order to be recorded!). So from that point of view it's a distinction without a difference.  A performance was involved.  That performance was recorded.  End of story.  The performance itself is Gone With The Wind.  The recorded record of that performance exists as an historical artifact.
 
But under the law there IS a difference, since U.S. copyright law treats performances quite differently from recordings.  Plus there is the added factor that recordings can be duplicated, posted, or downloaded.  (CAN YouTube videos be downloaded; I don't have a clue!  I use my computer, but I don't understand it!!!)  AND (a most important factor, it seems to me), a performance cannot be distributed (leaving aside the annoying but very real factor of broadcasting rights), while a recording "in fixed form" (known in the law as a "phonorecord") can be.
 
In the earlier days of broadcasting (which I probably remember a lot better than many Listers!), there were no coast-to-coast networks.  East Coast radio broadcasts were "transcribed" (recorded onto spinning aluminum discs as one-off records of the broadcast), which were physically flown to the West Coast and rebroadcast there from the transcriptions on a one- or two-week delay.  The same thing happened with early TV.  "Kinescopes" (films) of TV broadcasts on the East Coast were flown to the West Coast for rebroadcast.  In fact the very first live, coast-to-coast TV we ever got in the Pacific Northwest was the 1952 Rebublican National Convention that nominated Dwight David Eisenhower for President!  So making recordings of performances has a very long history and predates YouTube and even the Internet and satelites themselves by decades.
 
And then there's the question of synchronization, which I don't pretend to understand, when audio and video of the same performance made at the same time by the exact same equipment are considered to be separate things requiring even MORE paperwork and potential payment of fees!
 
So the bottom line, as Philip correctly points out, is that the law has never been able to keep up with the technology, while the court cases that actually define the meaning of the law can't even keep up with changes to the law!!!  And his experiment with publishers (great idea Philip!!!) just underscores how confused the whole thing is.
 
And the even more bottom bottom line:  it never hurts to ask permission before using someone else's property.  Never has, never will.  Just a very good idea, and one of the things we were supposed to learn in kindergarten.  Most of the problems people run into involve forgetting that one, simple rule.
 
All the best,
John
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