In the case of The Lumineers, one of their tours was booked specifically to afford the band the opportunity to publicly woodshed new material that had not yet been recorded. That tour’s cell phone ban was born out of the band’s concern that audience members might leak videos of their performances of new material before the band could itself release studio versions of those songs.
Many musicians agree that featured performers at concerts should be able to limit the recording and distribution of their performances. However, among concert goers, reactions to camera restrictions are mixed. On one hand, many concert goers find cell phone users at concerts to be a distracting nuisance. On the other hand, many audience members who oppose camera restrictions believe that recording and distributing concert footage is an appropriate way for them to memorialize and share their positive experiences with others.
However, this issue is not just a matter of opinion, it’s a matter of law.
Federal law, namely 17 U.S.C. § 1101 imposes civil penalties for the unauthorized recording of live performances or the transmission or distribution of such. This is true even if the bootlegging is not done for commercial gain. The statute provides that anyone who engages in these prohibited acts is potentially liable for money damages. A court may also impound applicable recordings.
Similarly, 18 U.S.C. Section 2319(a), which makes bootlegging a criminal offense if the perpetrator -- without the consent of the applicable artist -- knowingly records a live musical performance or distributes such a recording, and does so for commercial gain.
Anti-bootlegging laws have rarely been enforced, but since a federal law specifically prohibits people from recording musical performances without the performer’s consent, musicians performing in the U.S. have a legal right to prohibit them, even if the persons that want to record parts of the concert have no intention of distributing the applicable footage or audio recordings.
One of the most famous court cases invoking the civil anti-bootlegging statute involved Kiss, who sued a concert promoter for commercially distributing a video taken of the band at a stadium concert. The band had consented to be filmed for the purpose of projecting the images at the concert; the promoter later released the video on DVD without Kiss’ consent. Kiss prevailed. While this case involved a commercial bootlegging enterprise, under the civil statute, those who record or distribute concert footage without the consent of the performer are breaking the law, even if the recorded materials are not distributed commercially. In this particular case, since the bootleg videos were distributed commercially, the defendants could potentially also have been held liable under the criminal anti-bootlegging statute.
Most musicians in the U.S. have some notion that their intellectual property may be protected by copyright law. But when it comes to live performances, there are times when copyright law is not applicable at all. For example, if an audience member takes a video of a concert without permission of the performers, the performers don’t own the copyright in the video or audio that has been captured. Rather, the person who records the video owns the copyright in that video. So what is a performer to do? Nobody wants to litigate. But if musicians want to ban cell phone cameras at their concerts, or try to remove bootleg recordings from sites like YouTube, they should be aware of the legal basis for doing so.
If live performers happen to own the copyright in the musical composition recorded in a video, then such performer(s), as owner of the musical composition, could say that the video is disallowed because the person using their phone failed to get a license to use their song. But if a performer is playing a cover tune, then that musician can’t claim copyright infringement. (Musicians who are recorded without their permission can always rely on the anti-bootlegging statute as a legal basis upon which to forbid recording.)
This distinction may sound trivial until musicians try to get unauthorized videos taken down from YouTube. YouTube has mechanisms -- namely, its ContentID system -- for copyright owners to demand that their work be removed from the site. But if a musician objects to YouTube’s distribution of a video on the basis that the concert footage was taken without his or her permission, that’s not a copyright claim. It’s a “bootlegging” claim. The procedure for getting the materials removed is entirely different than a copyright infringement claim. (At YouTube, a musician who wants to remove unauthorized concert footage of himself/herself can do so at this link.)
The fact that there is a federal anti-bootlegging law may come as a surprise to concert goers who have long watched concerts through their cell phone screens. But the law is on the side of the increasing number of musicians who want to limit fans’ ability to record concert footage.
In the last year, several artists have filed takedown requests with YouTube on the basis that, when users put up footage of live performances without the performers’ consent, those recordings are being distributed in violation of the civil anti-bootlegging statute applicable. One of these artists claimed that YouTube ignored multiple requests to take down concert footage that had been recorded without his consent. Other artists reported swift action by YouTube in response to such requests to take down bootleg videos.
Even where YouTube and similar sites do heed takedown requests, when those takedown requests are based on allegations of bootlegging rather than allegations of copyright infringement, then YouTube might be liable for “secondary liability” for such activity; in such cases, the DMCA Safe Harbor provisions don’t apply at all. There is little recent case law discussing the application of federal anti-bootlegging statutes, but it is possible that this may change in the future, given current trends among prominent artists to protect against videotaping live performances at concerts.
Performers may soon be able to utilize higher-tech means of limiting unauthorized videotaping: Apple recently patented a process that would temporarily disable audience members’ iPhone’s cameras, but would allow audience members to bring their mobile devices into a concert venue. Whether via high tech or low tech means, musicians in the U.S. may increasingly enforce their right to make sure audiences don’t videotape their live performances without their permission.
Rachel Stilwell, Esq. is the owner of Law Offices of Rachel Stilwell, a boutique transactional entertainment law firm in Los Angeles that represents creators, including recording artists, songwriters, producers of music and film, visual artists and others. Her work involves legal and business issues relating to contracts, copyrights, trademarks, rights of publicity, privacy and employment.
Makenna Cox is a student at Loyola Law School, where she serves on the staff of the Loyola of Los Angeles Entertainment Law Review.