YouTube and Copyright

[Justadad]

I have a YouTube channel to which I add bits and pieces from Justason every now and then to share with other family members.

 

Recently, whenever I've added something to the channel YouTube has written to me saying that some or several parties claim that I am infringing their copyright. This did not stop the clip from being played but, it seemed, gave YouTube the right to stick a commercial on the front of it.

 

When this happened a few months ago it took me quite a while to figure out who was claiming the copyright infringement and even longer to find out how to contact them so that I could tell them they were wrong. They never replied. Nowadays you get a link in the channel manager allowing you to dispute the claim (albeit with a warning that frivolous disputes might lead to suspension of the channel).

 

For Easter, Lawrence arranged the toccata from the Jongen Symphonie Concertante for organ and brass. I put it on YouTube and The Harry Fox Agency Inc immediately claimed I had infringed their copyright.

 

I appealed on the grounds that the organ score had been bought legitimately, the arrangement was by my son, the recording (made by Grace Cathedral) was in the public domain, and that there was no commercial transaction. The Harry Fox Agency inc has until 23rd July to contest the appeal. I don't suppose they will.

 

Last Thursday, Lawrence played the Dorian toccata and fugue before and after evensong. Justamum and I enjoyed it, so I put in on the YouTube channel accompanied by four photos I took when we went to visit Lawrence in May.

 

No sooner had I posted the clip but someone (I don't know who) claimed I had infringed their copyright. I appealed pointing out that the music was by Bach, my son was the performer, the recording was in the public domain and the photos and film were made by me.

 

The infringement notice was withdrawn as soon as I appealed. I suspect therefore that both the original complaint and its withdrawal were automated processes which had nothing to do with either law or sense.

 

But I might be wrong.

 

Can anyone tell me what the actual position is if the music has been bought legitimately, it's played in a service, the Cathedral puts the recording on its website, free of charge, and neither my son nor the Cathedral object to me putting the clip on YouTube?

 

Best wishes

 

Justadad

[Malcolm Kemp]

Th only way to get a definitive answer is to get advice from a legal practitioner, with a licence to practice, who is an expert in copyright law. If Lawrence belongs to an organistation like the Musicians' Union, the Incorporated Society of musicians or a similar organisation in the USA they will be able to get definite advice, quickly and free of charge, from an expert in that field. When I needed help on a personal tax matter a few years ago the ISM arranged for a top London accountant to ring me back with an answer to my query within an hour of my initial enquiry.

 

Malcolm

[innate]

I wish I could find a link to a story about copyright on YouTube. The story is something like:

 

Musician writes song and posts it on YouTube.

Major USA political comment TV show uses above video from YouTube (without credit).

TV company that produces the above show insist musician removes song from YouTube as it is in breach of their copyright.

 

Complete Kafka-esque nightmare.

 

Some of these details might be wrong.

 

I think there are automated services (bots) that try to match any music or video posted with a (potential) copyright owner.

[SteveBarker77]

I had a recording of my Church Choir singing Fauré's Cantique de Jean Racine flagged as a breach of copyright - I appealed, explaining that Fauré was long gone and that the recording was my own of my church choir and they took down the notice. I was quite flattered that someone might have thought that it was a professional recording.

 

Perhaps on a slightly similar note, I've been a little frustrated at cathedrals who ask for a recent recording of the choir singing a service when applying to do a visit, but who won't allow visiting choirs to record when they visit. Would the cathedrals be in breach of any copyright or performing rights if I posted my choir singing there, or would it actually rest with me and the choir? are the cathedrals being over cautious?

[innate]

That’s an interesting question, Steve. Commercial performing venues have certain responsibilities to do with performing rights but whether they have a duty or responsibility to police copyright with regard to recording is, I suspect, moot. I'm sure it would be possible, in exchange for the right fee, to book the cathedral for a recording session outside normal opening hours, so I don't think it's the principle that concerns the cathedral authorities.

[Tony Newnham]

I've had issues with You Tube recordings, with copyright infringement claims for Bach etc. Just query the claim and the flag is normally removed - but remember that the works of a composer may well be public domain, copyright could still apply to the arranger, and possibly the editor of the score.

 

Every Blessing

 

Tony

[innate]

There was a well-publicised case involving an editor and a record company in the last couple of years. In that case the repertoire was obscure. I'd be interested to hear of a case involving the editor or edition of a well-known Bach organ piece. Obviously if the sheet music is visible in a video recording that would be a different matter.

[Justadad]

Hi Tony

 

How does that work?

 

If the performer has bought the music legitimately presumably they have every right to perform it.

 

If I record, with the permission of the performer, something I hear being played how do I know what rights the arranger or editor may have or, indeed, who they are? Surely (and of course I may be wrong here) their copyright lies in the score which is why it has to be purchased. I do not see how they or, indeed, the composer can claim copyright in the performance, or in any recording I make of it, especially as I am not selling anything or granting licences to anyone else to sell anything - even if they are still alive.

 

I suspect sheet music sales would plummet if it all came with a warning that you aren't allowed to perform or record it.

 

Best wishes

 

J

[pwhodges]

If the performer has bought the music legitimately presumably they have every right to perform it.

 

The Hyperion case (alluded to above, though it was 2004/5 rather than a couple of years ago) made it clear that purchasing or hiring the copy of an edition was not sufficient to cover the matter of the editor's copyright. It was suggested that in that case some of the blame fell on the performers for not sufficiently checking that the recording company knew about the editor's copyright; however, it was the company and not the performers that were being sued (and lost). In any case, although there was much sympathy for Hyperion, the judgements in the High Court and subsequently in the Court of Appeal were clearly in favour of the editor, Dr Sawkins.

 

What caused difficulties for Hyperion in the aftermath was not the amount claimed by Dr Sawkins (which was modest), but the legal fees running over £1million.

 

Google "Hyperion Sawkins Copyright" for more details.

 

Your comment about sheet music sales was made at the time, but things don't seem to have gone that way.

 

Paul

[innate]

Performance royalty payments are due where copyright works are performed. The details are complicated and the venue is normally the organisation that deals with them. I think that the payments go into a general "pot" and are shared amongst composers and arrangers according to various formulas. Where sheet music is only available for hire, the hire fee generally includes an element for recompense for public performance. I think there is a special exemption for performance royalties in the case of acts of worship but the exemption wouldn't apply to music performed in religious buildings not in acts of worship.

 

The act of recording copyright music is generally not an issue as far as the holders of copyright in the music are concerned, but they are are extremely interested once the recording is disseminated.

[Malcolm Kemp]

Why not send Ian Ball a PM. He may be able to point you in the right direction, perhaps putting you in contact with someone (perhaps one of his work colleagues) who is an expert in what seems to be a complicated field.

[Justadad]

The Hyperion case was a commercial recording.

 

Do the same rules apply to non-commercial, 'family-shares'?

 

Best wishes

 

J

[Justadad]

In any case, I suspect the entities which slap these infringement notices on have nothing to do with the composer, the editor, the publisher or anyone else involved in the origination or performance of the music.

 

What does the Harry Fox Agency Inc (the only claim that hasn't been withdrawn immediately when contested) have to do with Jongen? Is Harry Virgil's brother, I wonder, because there are plenty of clips of Virgil playing it on YouTube, and he's playing pretty much what Jongen wrote and had published; not a rearrangement for organ, brass and percussion.

 

Best wishes

 

J

[innate]

The Hyperion case was a commercial recording.

 

Do the same rules apply to non-commercial, 'family-shares'?

The law would make small distinction in principle between commercial and non-commercial uses of recording, I suspect. Obviously there could be a big difference in terms of any potential damages. But just think about the fines being awarded in file-sharing cases.

[Justadad]

I remember the issue of wedding fees being debated here several times.

 

I think I remember reading that there used to be a sort of rule of thumb that there should be a 50% premium for audio recordings and 100% for video, but that the proliferation of video recording devices (even in mobile phones) meant it was best to assume that the service would be videoed and to charge accordingly.

 

I think that was to 'buy' the performance rights.

 

I don't recall any reference to editors' copyright.

 

Are we really saying, now, that wedding parties should be discouraged from recording the happy day (or, at least, 'disseminating' it) lest they infringe an editor's copyright? It seems a bit daft to me.

 

Does anyone here issue such warnings or play in services where such warnings are given?

 

Best wishes

 

J

[Richard Fairhurst]

I wouldn't get too diverted by the Sawkins case: it hinged on whether the significant amounts of effort that Sawkins had put into his work were copyrightable. I'm sure everyone here would agree that, for example, Sir David Willcocks deserves copyright protection for his superlative carol descants, even though they could be described as "arrangements" in the widest sense. The Sawkins case was part of the same spectrum - even if many of us would want to draw the line somewhere else along it.

 

That level of effort and originality is unlikely to be the case with the Oxford Book of Wedding Music (with all due respect to its editors!). Moreover, as books like that are essentially sold as performance editions for occasions where videos are commonly filmed, the editor or publisher would be committing commercial suicide as soon as they reached for the lawyer.

[innate]

That level of effort and originality is unlikely to be the case with the Oxford Book of Wedding Music (with all due respect to its editors!). Moreover, as books like that are essentially sold as performance editions for occasions where videos are commonly filmed, the editor or publisher would be committing commercial suicide as soon as they reached for the lawyer.

What about using the Oxford Book of Funeral Music for a CD/digital download of funeral music mandated to be used at all civic crematoria in the UK. With no payment to the OUP or the editors?

[justinf]

A while back a choir with which I sing grappled with similarly murky questions of copyright and legality when someone anonymously posted several of our performances to YouTube. The president of our choir wrote to Chorus America for advice, and although their reply isn't definitive and might not be entirely applicable in the UK, here is a summary:

1. Placing a video on YouTube as opposed to your own personal or group site means the video is covered by YouTube's blanket license with BMI (definitely), ASCAP (likely) and SESAC (also likely).
   
2. Since YouTube videos stream and cannot be downloaded (at least that's the intent), it is exempt from digital licensing fees which performing rights licensing groups are assessing on downloads.
   
3. The following thread on ChoralNet contains some useful information (especially the original post, first two replies, and last two replies): http://www.choralnet.org/266800
   
4. YouTube has some boilerplate about copyright, but it's not very clear. The worst that can happen is that a copyright holder for a piece can request the video be removed, in which case, comply.
   
5. Definitely make sure to ask the performers in the video that they do not object to being recorded and broadcast.
   
6. If the recording is of a concert, you should already have secured performance rights for the pieces with BMI and ASCAP. [Not sure if this applies to church services, though. --JF]
   
7. If the recording includes union instrumentalists, contact the union before posting the video. ["Bassoons down, boys, untils they shows us da money." --JF]
   

I think groups like the Harry Fox Agency collect fees for things like digital downloads (iTunes, ringtones, &c.), and I can't imagine that would apply in the case Justadad described (see point #2). However, I am no lawyer and no expert in these matters. A friend who makes professional recordings once described to me the many licenses involved (including a mechanical license and synchronization license amongst others). Byzantine doesn't even begin to describe the rules, and the impression I formed is that you could probably make a felony case against just about anybody for any recording, if you really wanted to.

 

The rules are ripe for some modernisation. They should be able to protect composers and publishers without threatening performers, friends, and enthusiastic Facebookers with the possibility of felonies and huge fines. The YouTube mediation method is a step in the right direction, but I sure wish the rules were simple and enumerated so that we could follow them easily, as I'm sure we all wish to do.

[Richard Fairhurst]

What about using the Oxford Book of Funeral Music for a CD/digital download of funeral music mandated to be used at all civic crematoria in the UK. With no payment to the OUP or the editors?

Hoooee, there's a question.

 

Firstly, that might very well fall foul of compilation copyright and/or EU 'sui generis' database right. Making a selection of items (e.g. choosing the 15 most suitable funeral pieces) can be a copyrightable act in itself. For example, if I were to type up the entire hymn list of Common Praise here, I'd have infringed the rights in the complilation, even if I didn't include any of the music or the words apart from the first line.

 

And the rights in the music itself? Difficult to tell. Two words you'll see repeatedly in copyright cases are "substantial" and "original". I suspect that a CD which contained just two, fairly generic arrangements would very possibly not infringe any rights. One that contains several more, and where the arrangements are a bit more specialist... well, that's the Hyperion case, and that was (eventually) judged to infringe. But the sheer amount of argument about it shows you how unclear this all is.

 

One further wrinkle - the UK is more generous as to what merits copyright than most jurisdictions. We are what's sometimes called a "sweat-of-the-brow" jurisdiction. In the US, the required level of originality is much higher.

[Nigel Allcoat]

I posted some pieces on Youtube the other year for educational purposes for my students (and any others wanting to hear, as they were public). It was my music and yet they banned it after 24 hours. They obviously do a splenid job in maintaining good taste.

[innate]

One further wrinkle - the UK is more generous as to what merits copyright than most jurisdictions. We are what's sometimes called a "sweat-of-the-brow" jurisdiction. In the US, the required level of originality is much higher.

To this, and to justinf’s post above, I would say: the US is a very different country with a deeply different legal system. The First Amendment protects, for example, parody - which is often expressly forbidden in the UK.

[SteveBarker77]

What about using the Oxford Book of Funeral Music for a CD/digital download of funeral music mandated to be used at all civic crematoria in the UK. With no payment to the OUP or the editors?

In the UK, if you produce a commercial CD which contains copyright items then you need a licence from the MCPS (Mechanical Copyright Protection Sceme) - a branch of the same people that collect royalties for public performances, broadcasting, playing music in shops etc. It seems a payment of 8.5% of dealer price or 6.5% of retail price should cover you... see here for more info: http://www.prsformusic.com/users/recordedmedia/cdsandvinyl/Pages/AP1AP2.aspx It is then the job of the MCPS to pass payment onto copyright holders. I have no idea how such things work in the USA though - perhaps there is a similar organisation?

 

Steve

[pcnd5584]

I posted some pieces on Youtube the other year for educational purposes for my students (and any others wanting to hear, as they were public). It was my music and yet they banned it after 24 hours. They obviously do a splenid job in maintaining good taste.

 

On what grounds was it banned?

[justinf]

To this, and to justinf’s post above, I would say: the US is a very different country with a deeply different legal system. The First Amendment protects, for example, parody - which is often expressly forbidden in the UK.

 

That's why I will feel completely safe if I ever post a video of me playing pretty much any piece of music. "Listen," I will say, "it's so poorly played that it must be parody!"

 

Nigel, I'm afraid that you play entirely too well, even if I were to post the video on your behalf. Though what possible objection could they have had to your video? Your other videos (like "Nigel ALLCOAT Virtuoso Organist 2") are fortunately still available (and very enjoyable, too).

[mgp]

I have a YouTube channel to which I add bits and pieces from Justason every now and then to share with other family members.

 

Recently, whenever I've added something to the channel YouTube has written to me saying that some or several parties claim that I am infringing their copyright. This did not stop the clip from being played but, it seemed, gave YouTube the right to stick a commercial on the front of it.

 

When this happened a few months ago it took me quite a while to figure out who was claiming the copyright infringement and even longer to find out how to contact them so that I could tell them they were wrong. They never replied. Nowadays you get a link in the channel manager allowing you to dispute the claim (albeit with a warning that frivolous disputes might lead to suspension of the channel).

 

For Easter, Lawrence arranged the toccata from the Jongen Symphonie Concertante for organ and brass. I put it on YouTube and The Harry Fox Agency Inc immediately claimed I had infringed their copyright.

 

I appealed on the grounds that the organ score had been bought legitimately, the arrangement was by my son, the recording (made by Grace Cathedral) was in the public domain, and that there was no commercial transaction. The Harry Fox Agency inc has until 23rd July to contest the appeal. I don't suppose they will.

 

<snip>

Best wishes

 

Justadad

 

I've just uploaded some videos of our Diamond Jubilee Service including one of the National Anthem and instantly Harry Fox Inc claimed copyright in "National Anthem". No doubt some National Anthems are but not ours (UK) - words & music circa 1745. I've appealed (and suggested perhaps its HFI that should be given the boot). My guess is that its an automated process on behalf of copyright administration agencies worldwide and the default position is "if it might be in copyright for any reason then challenge". Most likely copyright hook on Bach would be that the player might be using an edition edited by someone who died less that 71 years ago. And of course there are now new editions of Frank, Boellman, Vierne etc to raise doubts.....

 

MGP