Another YouTube Copyright question

May 10, 2020, 1:15 PM · 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.

Replies (33)

Edited: May 10, 2020, 1:24 PM · 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.

Editing to add from a discussion I had recently with colleagues:

Per our orchestra librarian, there are four rights the copyright holder has: (1) the right to the physical manifestation of the music itself; (2) the right to perform it in public; (3) the right to make a sound recording of it; (4) the right to transmit either the live performance or a recording by radio/internet, etc. These rights must all be dealt with.

May 10, 2020, 1:53 PM · 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 “.

However many schools and venues that have live music already have license agreements that cover all this. Finally, it also depends on where the performance was made, for example in Canada and many other countries the Korngold piece is already public domain since the laws are different..

May 10, 2020, 2:02 PM · 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.

If the original performance was free and in an educational context and the youtube videos are not monetized and you purchased the sheet music, I wonder if this could be fair use.

May 10, 2020, 2:06 PM · 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 impossible to say for certain whether an uploaded video will fall under Fair Use. However, if you’re a private music teacher posting recitals, this may be considered commercial as it promotes you and your business. The same could be said of a young performer using the uploaded videos to advance their careers (or to start one) as musicians.”

The quote is from an excellent post here:
https://www.connollymusic.com/stringovation/posting-performance-recordings-online-without-violating-copyright-laws

May 10, 2020, 2:19 PM · 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 :-).
May 10, 2020, 4:12 PM · 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.
May 10, 2020, 4:22 PM · Also wondering: does YouTube count as broadcast or recording?
May 10, 2020, 4:30 PM · Both. Clearly a recording was made, and it is being broadcast through YT.
Edited: May 10, 2020, 6:51 PM · 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.

https://en.wikipedia.org/wiki/Fair_use

Edited: May 10, 2020, 8:53 PM · "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".
Edited: May 11, 2020, 9:28 AM · 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.

I realize all of that is an extremely conservative response, but maybe there's also an opportunity here for a young person on the cusp of a potential performing career to begin appreciating where that line is and how one does things by the book. In 20 years he might have his own artistic products that he wouldn't want repurposed by others just because doing things properly (or even learning what is proper or not) is expensive or inconvenient. A one-hour consultation with someone who practices this area of law might be money well spent. I will bet you, however, that their answer will be that what you have here is a very gray area and that different kinds of repurposing have been treated very differently (case law).

My mom has a lot of old art books that have beautiful, high-quality color "plates" of paintings. These books were *expensive* in their day, but they also turn up at garage sales all the time. I had the idea that I would remove the plates from the books, frame them (I am decent at framing), and sell them as miniature reproductions. Presumably the publisher of the book already paid the license fee for their use. I sent a local attorney an email asking whether he thought this would be okay, and he unequivocally advised me against it.

May 11, 2020, 1:29 PM · 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." :)
May 11, 2020, 1:45 PM · 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.
May 11, 2020, 3:19 PM · 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.
May 11, 2020, 9:13 PM · 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.

My latest adventure (recording all four parts of a single movement of a Telemann Four Violin Concerto) got flagged as being part of a commercial recording of the work--despite my having performed it from a scan of a 300+ year old sheet of music that is in the public domain!

May 11, 2020, 9:21 PM ·
May 11, 2020, 10:27 PM · 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.
May 12, 2020, 9:04 AM · 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?
May 12, 2020, 9:05 AM · 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.
May 12, 2020, 9:14 AM · Just have your son tune his violin at the start of his performance. Pros always edit that part out.
May 12, 2020, 12:53 PM · 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.
May 12, 2020, 7:59 PM · Wow there's a lot of hardware behind that, running those engines.
May 12, 2020, 9:36 PM · 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.
May 12, 2020, 9:45 PM · “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)“

Unless your son was granted permission for his arrangement by the Piazzolla copyright holder, this is basically the very definition of copyright infringement.

May 13, 2020, 8:52 AM · 2 more questions:

Is it OK to make arrangements of pieces written prior to 1924?

Many of these video arrangements (particularly the Acapella ones) were made for assignments for school orchestra, his scholarship program, or his pre-college program. Does that change anything? They are trying to find ways for them to continue exploring their musical horizons during coronavirus lockdowns since they don't have accompanists, chamber groups, or orchestra.

Finally, if YouTube didn't put a copyright claim on almost every video -- erroneously most of the time -- it would be a whole lot easier to sort this out! Just this week he got copyright claims on unlisted videos of Bach and Wieniawski.

Edited: May 13, 2020, 11:34 AM · 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.
https://fairuse.stanford.edu/overview/public-domain/welcome/

Ignorance on the part of school faculty does not override copyright law so no, the fact that work was done for a school assignment does not insulate it from possible copyright infringement. It sounds to me as if there is nobody at your son's school who is knowledgeable about this issue, and there really needs to be. In a professional orchestra, the librarians are the people constantly dealing with copyright issues, permissions, etc. Anything I know about copyright, I learned from our orchestra librarian.

Youtube has to cast a wide net on copyright issues or risk being sued out of existence by copyright holders. You are blaming the messenger here.

Some copyright infringement notices, such as a personal performance being picked up by the algorithm as some copyrighted professional performance due to similarities, are easily sorted out. You simply notify Youtube that the performance was not whatever commercial recording the algorithm says it was.

Other copyright infringement notices are not easily sorted out, especially if they are accurately identifying copyright infringement, and it seems at least some of your son's videos are in fact copyright violations.

I understand this is frustrating; I understand that your son's arrangements and videos were done in good faith and in ignorance, but that does not excuse the copyright violations. It is still theft. Twenty years from now when your son is making commercially available recordings, he will be very glad for the laws which protect his property.

Edited: May 13, 2020, 1:09 PM · 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?
Edited: May 13, 2020, 1:50 PM · This looks like a pretty good discussion of youtube content identification and sync licensing for cover songs - https://diymusician.cdbaby.com/youtube/posting-cover-songs-on-youtube-music-licensing-law-explained/.
Edited: May 13, 2020, 1:55 PM · 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.

By the way, it's also important to recognize that editions, arrangements, etc., that might have been published after 1924 are still protected even if the music on which they were based was published before 1924. This is why the competitions won't accept photocopies of concerto editions.

So if you decide to perform "Stars and Strips Forever" that's fine because the song is in the public domain. But if you decide to perform Vladimir Horowitz's arrangement of it, then you're infringing his (estate's) copyright. This is why you don't find modern editions on IMSLP.

May 13, 2020, 2:07 PM · ”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?“

If the work is in the public domain, you are fine.

If the work is more recent but the performance is clearly for educational purposes, you’re most likely fine.

If it is for a small scale performance under the radar, most likely you will never be noticed or contacted. Nobody is chasing down wedding quartets for the performance rights.

If it is for an orchestra performance, then it is the librarian’s job to get the appropriate permissions.

If you post your performance on YouTube, you are leaving yourself wide open if you did not go to the time and expense to acquire the proper permissions. In Susan’s son’s case, I see this as a failure on the part of the school.

May 13, 2020, 2:13 PM · https://www.law.cornell.edu/uscode/text/17/110

(sorry, please copy and paste)

There are many limitations to exclusive rights when it comes to music.

May 13, 2020, 3:25 PM · Another useful link, https://www.ascap.com/help/music-business-101/youtube-faq-uploaders.

It looks to me like for an ASCAP claim, the copyright results in the ad revenue for your video going to them to be redistributed as royalties unless someone they represent specifically requests that the video be taken down. Sounds fair enough to me.

Is someone else reading this differently?

We'll get test this soon, Shostakovich going up within the next week or so :-).

May 13, 2020, 3:35 PM · @Stan and @Mary Ellen, thank you, that helps, though I admit I still find it all a bit confusing, especially Stan's last one.

Incidentally, most of the Acapella videos have been for his regular school and not his music school -- and I am positive the public schools know nothing about copyright and YouTube. I'm going to suggest to his pre-college program that they do a workshop on this next year so kids can do it legally and properly.


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