Another YouTube Copyright question
Can someone help me understand the copyright claims for classical music on YouTube? We get them all the time. When they are performances my son has done of things I know are no longer under copyright (ie pre-1924) we always appeal the copyright and always win.
However, he has a number of videos with copyright claims that are pieces written after 1924. They are always his own performances, or performances he is in. A few this year have included Korngold quartet, Gershwin excerpts from Porgy and Bess, and one he just put up of his own arrangement of a Piazzolla piece. Can we appeal these since they are his own performances, or do they fall under copyright still for performance?
These are just personal videos -- nothing is monetized -- so I suppose nothing really matters if we just ignore the copyright claim.
If the music itself is under copyright, I believe you still need a license for a public performance and a separate license for a broadcast. I’m assuming the sheet music itself was lawfully purchased.
Mary Ellen is absolutely correct, but it also gets more complicated, for example, for any recording that is made of music learned from sheet music, the performer also holds a copyright to that performance ( unless he or she signed the rights over to another). This is in addition to the composition rights held by the owner of the music score itself. So technically, to distribute it, the performer needs what’s called a “mechanical license “.
We've had a few of these where youtube analysis software said we were using a commercial recording. It was good for a few laughs, "youtube says it thinks you are Yo-Yo Ma, either the software is pretty dumb or you were playing pretty well". I would guess that is disputable regardless of the performance copyright.
I think whether this could be considered fair use is debatable since it could be considered as advancing Susan‘s son’s career.
It's a very good point. However if someone doesn't make money playing and isn't actively using the videos to start a career e.g. as a demo video to record companies, I agree, it is debatable :-).
Interesting. I don't think my son's at the point where his YouTube, all 20ish subscribers of it, have any likelihood of advancing his career. But there is definitely ambiguity in these Fair Use statements, and I am kind of frightened to try to appeal the copyright claims and then get sued. Apparently if you aren't monetizing it doesn't really make any difference. It's just kind of annoying.
Also wondering: does YouTube count as broadcast or recording?
Both. Clearly a recording was made, and it is being broadcast through YT.
Whenever I go to a seminar where these issues are discussed, one of the most consistent themes is that "fair use" is extremely limited in scope and very commonly abused by people whose main criterion is whether they think what they are doing "seems fair" to them. Whether you are profiting/monetizing doesn't seem all that important.
"the noncommercial purpose of a use makes it more likely to be found a fair use, but it does not make it a fair use automatically"; I'd also be emphasizing "nonprofit educational purposes".
I just reread the original post. Susan wrote, "These are personal videos." I know what she means, but how are they being shared? In a private YouTube channel where you would need the link to access it? Does her son have a website or a CV that says "Performance videos available upon request" (where they would be given only to those with some legitimate need to see them)? Or are they being offered up entirely publicly like a normal YouTube video? A performance of a concerto movement for a conservatory audition, submitted to only the selection committee, is one thing. That probably meets the criteria for fair use. But a performance that you're "putting out there" for all to see is another. That's not personal any more. It's public. One could argue that your son's public performance is displacing the work of someone who is willing to pay whatever licensing fees are required -- but cannot afford them.
Those are some very interesting thoughts, Paul. I don't think my son is to the point now where we really need to be concerned legally, but in a few years that could change. Right now he has a mix of purposes for his YouTube. About half his videos are unlisted videos for his teacher (or specific others) to review. The other half he mostly puts up for friends and relatives. But they are available for anyone to watch, so technically they are "out there." :)
Paul is absolutely correct - and always better to err on the conservative side with legal issues. I am not advocating for anyone to infringe on other's copyrights by writing this, however, I think in this case, the worst that will happen is Youtube will keep taking the videos down when they receive infringement complaints. If it goes on long enough they may suspend or terminate the Youtube account.
Incidentally, Gershwin and Piazzolla estates (and their publishers) are VERY active in pursuing copyright issues. Probably NOT though in a case like this. But YouTube could take action. There is no issue of fair use here. A "rights organization" took a number of HS marching bands to court over use of unauthorized arrangement/performance rights. They own the rights to anything that happens with their works. This includes performance rights, broadcast rights (and any associated electronic/internet distribution), print rights, and ARRANGING rights. If you do ANYTHING with a copyrighted work, you need permission from the copyright holder, and pay for those rights. Performing organizations take care of their concert performance and broadcast rights via special arrangements or their blanket licenses from ASCAP/BMI/SESAC, contacting copyright owners directly, or via businesses like Sam Fox, who handle mechanical rights), and there are a few new organizations that are trying to work their way into the process. An a note for anyone wanting to make an arrangement of a copyrighted composition--the copyright owner OWNS any arrangement that is made. The last instance I recall of a copyright owner taking possession of someone else's arrangement was with Abreu's Tico Tico that was arranged by Cliff Colnot. Cliff was peviously renting out his "authorized" arrangement personally, and the publisher/copyright owner decided to take possession of all of his copies.
Copyright claims on YouTube are done automatically using an algorithm. They cast a wide net, and expect people to have to sort the mess out themselves. No easy answers here, and if YouTube didn't do this, copyright holders would sue them out of existence.
Gene Wie--algorithms rule. The timing of your recording must have been the same (or very close to) as a commercial recording that is in their database. Even if the music performed is PD, every "performance" on a recording is protected by Performance Rights. This is indicated by the little circle with a "P" in it--similar to a copyright sign. That is why music beds on radio/TV commercials are from specific recording sessions for the client/agency involved, rather than simply using a commercially available recording of, say, Mozart Eine Kleine, for a music bed.
I'm not sure how great the algorithms are. They routinely are matching performances of 10-year-olds with those of the greatest players in history. My son matches to commercial recordings all the time, and they aren't really that close (I dispute those ones and always win). Do they look more at timing or pitch?
I arranged/abridged Vivaldi Summer 3rd movement for my students, reducing sixteenth notes to eighth notes, and we had a chuckle about sounding real enough that the algorithm still got us.
Just have your son tune his violin at the start of his performance. Pros always edit that part out.
Sadly, Paul, that no longer works. They then match a portion of your piece instead of the whole thing. For example, his Piazzolla arrangement only matched the middle 2/3 of the copyrighted piece (he added lots of sustained chords at the beginning and also some different stuff at the end). I got back a copyright claim for the middle 2/3 of the piece, specifically from 29 seconds in until to 2:34.
Wow there's a lot of hardware behind that, running those engines.
A number of professional musicians have supplied good information to you. It IS copyright infringement, regardless of how it is rationalized. If you don't understand or believe what has been posted, since you live in Chicago, I suggest you contact Peter Conover or one of his two assistant librarians at the CSO and ask if it is legal to make unauthorized arrangements of copyrighted material AND post it on youtube.
“For example, his Piazzolla arrangement only matched the middle 2/3 of the copyrighted piece (he added lots of sustained chords at the beginning and also some different stuff at the end)“
2 more questions:
As far as I know, you can do anything you want to with pieces in the public domain, which in the U.S. includes anything published prior to 1924.
So, when I buy sheet music, I don't have the rights to play it if anyone else is listening, without paying a performance fee?
This looks like a pretty good discussion of youtube content identification and sync licensing for cover songs -
Roger, technically that's correct if it's a performance. If you're at your lesson, playing it for your teacher, that's a purely educational purpose (nobody is there merely to be entertained), so this is a good example of "fair use." A student concerto competition where the student is receiving feedback from the judges would likewise be an educational purpose -- but if family and community members are also in the audience to enjoy the music, then that could be problematic.
”So, when I buy sheet music, I don't have the rights to play it if anyone else is listening, without paying a performance fee?“
Another useful link,
@Stan and @Mary Ellen, thank you, that helps, though I admit I still find it all a bit confusing, especially Stan's last one.