Streaming Legal Follow-up Q&A
This is a summary of questions asked in the "Streaming Legal" webinar answered after the webinar ended.
Under DMCA, would there be anything the small artist could do to fight back against a wrongful takedown by an algorithm, as was mentioned earlier?
Yes: on YouTube there is a process to dispute a DMCA takedown. Facebook is a little more difficult because it's harder to reach a person to intervene. You can also dispute takedowns on other platforms formally under the DMCA counterclaim system Can the venue sponsor the artist and cover the performance on their existing license?
You would probably have to broadcast from the venue. If we are streaming from our venue with ASCAP, BMI, and SEASAC, will Facebook still possibly turn us off or mute?
They might; they don’t know you are whitelisted. As a performer, some of my contracts have been explicit that the hiring org owns the rights to the video/audio of my performance and that they will do what they want with it in the future with no additional payment to me. Most small orgs do not have this in contracts, but are also now posting videos/audio from previous performances.
Can individual performers in the concert force orgs to take down these posted videos/audio or pay them for these additional performances? What is the best approach for small orgs to post video/audio as far as permissions from the performers is concerned?
If there was never permission given by the performers to be recorded then you can certainly dispute an organization’s use of the videos. Without knowing the specifics of the contract (if there was one), we can’t say exactly what the best recourse would be. It might also touch rights of publicity if organization is using performance in a promotional or other context without permission of the artist. Organizations can obtain releases from the performers even if the performance happened a long time ago.
What if you share your YouTube livestream to Facebook? Does the content follow the YouTube licenses or Facebook?
Good question: if it originates on YouTube it's going to be under YouTube's license. That doesn't mean it is covered by Facebook, but it's a gray area whether you would get into trouble with Facebook for sharing a link essentially to a place where the content is licensed.
What is the easiest way for a small-time artist to get started in getting original material copyrighted?
Go to copyright.gov and read Circular 56a; this allows you to register up to 10 unpublished works at the same time and both the recording and the underlying composition at the same time
So a DVD of original, already produced material to raise money for musicians using one copyrighted song, can they give it away?
No, that would be distribution of a physical medium and require mechanical royalties to be paid to the song's publisher. In addition you need sync license from the publisher and if you are using someone else's recording (rather than one you made), you would need to a master use license from the record label.
When performing folk music/traditional music whose source is not clear (i.e., passed down, or maybe is arranged but still traditional), how does that affect copyright licensing for live streams? I know this is a tricky one for standard copyright as well (it's not always clear what might be in public domain).
There are definitely instances of the bots catching folk or other public domain music and muting it or removing it. Researching what is in the public domain can be very tricky.