August 16, 2009

The rules around capturing public performances

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Can you shoot video or take a photo of a street artist in public — and post it on your blog?

JD LasicaAre you allowed to shoot video or take a photo or record music of a musician or street artist performing in a public place and post it online?

Attorney Colette Vogele of the San Francisco law firm Vogele & Associates offers the following thoughts (though this does not constitute legal advice):

(1) For copyright it depends on a couple facts. In the first instance, there is generally no copyright interest in a street performance because (presumably) the performer he has not “fixed” (eg., recorded) his performance in a “tangible medium of expression” (eg., a videotape, or computer disk). That’s the good news, but don’t get excited yet. You’ve got two other potential copyright problems, but ONLY IF the performance you record is considered a “live musical performance.”

The two problems arise under section 1101 of the Copyright Act and the criminal anti-bootlegging statue that Congress passed a number of years ago (Title 18 USC 2319A).

Section 1101 requires “consent of the performer” if you “fix the … sounds and images of a live musical performance” (which is what you’ve done in making the recording, assuming it’s a “live musical performance”). It also would require consent if you “transmit … to the public” (which is what your blog would do).

So, unfortunately, despite the performer’s lack of other copyright interest (since he hasn’t fixed the performance), you would need his permission to make the recording and then post it on your blog. If the performer tries to assert these rights, you might argue that you have an implied license. Because the street performer is performing in an openly public place, and he (presumably) sees that you’re videotaping him and others are probably photographing him, you probably have a good argument for an implied license to “fix the sounds and images.”

But whether you have an implied license to then “transmit it to the public” is a little more difficult. I don’t know the answer off hand, but in this day and age, doesn’t everyone know that if they are doing something interesting in public and it’s being videotaped, it’ll end up on the Internet sooner or later? (That last bit isn’t sound legal reasoning, but you get the idea.)

A final question is what constitutes a “live musical performance” triggering this section. The Act is, unfortunately, not clear on this. There’s no definition of the phrase, or of the individual words, but the term “performance” is defined broadly. I don’t know the answer specifically, but I’d say off hand that if the performer is not singing or playing music, you can try to argue that the performance doesn’t fall within this section because it’s not “musical.”

In the criminal anti-bootlegging act, the definition of “trafficking” requires a transfer of the bootlegged performance “as consideration for anything of value.” This suggests to me that if you’re doing this non-commercially, then you’re not providing the copy on the blog “as consideration for anything of value” and thus not in violation of the criminal act. So I think you’re in the clear on this one. BTW, this criminal act is the subject of some recent litigation. The Act arguably violates the copyright clause of the Constitution because it gives someone a time-unlimited right to control a public performance (it’s a limited times argument). This issue is working its way up through the federal courts as we speak.

(2) He may try to claim a right of publicity, but I think you’re safe on that for two reasons (at least under California laws): (a) he’s performing in an entirely public place without any restrictions, he sees that people are photographing him and taping him; (b) your use is “not commercial” (speaking conservatively, this means that you receive NO $$$ from the blog that is hosting the tape). The Right of Publicity in California extends only to commercial uses of one’s identity/image/likeness/voice etc. A third reason may be applicable: (c) There’s an exception to the Right of Publicity for “any news, public affairs, or sports broadcast or account, or any political campaign.” To my knowledge, this has not been tested legally, but if your blog is considered “news reporting” then you’d fall w/i that exception, or, if the street musician is a political candidate you’re definitely in the clear.

(3) This is a bit of a stretch, but the performer may claim trademark interests. For example, if he’s wearing clothing that identifies himself and his trademark for services (performaces?) he provides, then your putting them on your website might suggest an affiliation with him. The key for TM infringement is likelihood of consumer confusion. Unless you’re a competing performer and putting a video of him on your blog (e.g., to suggest an affiliation/endorsement by him), then you’re not going to even come close to consumer confusion.

Image at top: Artista de rua by Delcio G.P. Filho


Do video producers need a publicity release waiver?

Model release form for video producers and photographers and downloadable form (Socialbrite)

Podcasting Legal Guide: Rules for the Revolution (Socialbrite)

Guide to shooting photos in public (Socialbrite)

Your rights as a photographer (Socialbrite)

What is off-limits to a documentary filmmaker? (Socialbrite)

Socialbrite legal resources

U.S. Code collection: Unauthorized fixation and trafficking in sound recordings and music videos (Cornell University Law School)

U.S. Code collection: Title 18 — Crimes and Criminal Procedure (Cornell University Law School)JD Lasica, founder and former editor of Socialbrite, is co-founder of Cruiseable. Contact JD or follow him on Twitter or Google Plus.

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8 thoughts on “The rules around capturing public performances

  1. Hi,

    I am a busker (street musician) in NYC. I found your article very interesting, as "millions" of people videotape me every day.

    You wrote:
    (presumably) the performer he has not "fixed" (eg., recorded) his performance in a "tangible medium of expression"

    Most of the buskers I know ( – and I know many buskers…) have recorded their music on CDs (which they sell while busking or on line).
    Also – many buskers play their own compositions, which are copyrighted (I play a lot of my husband's music, which is registered with ASCAP)

    Saw Lady

  2. I know some buskers hold a TM for their act. The 'Naked Cowbow' (fellow NYC busker) even made a lot of $$ sueing people for TM infringement…

    In my case – I ask that people who blog about me put a link to my website ( ) from their post/video.
    My website is clearly advertised in 5 places around me when ever I busk, so people can't say they didn't know of it…

    Thank you for the interesting article!
    All the best,

    Saw Lady – where I blog about what happens when I play in the NYC subway

  3. You worte:
    there is generally no copyright interest in a street performance because (presumably) the performer he has not "fixed" (eg., recorded) his performance in a "tangible medium of expression" (eg., a videotape, or computer disk).

    Most street musicians today have recorded their music – they sell it when they play on the street or from the Internet. Many street musicians also play music they composed and they own full rights for it.

  4. Saw Lady, you're super-smart to be marketing your site during your performances, and anyone who blogs it should certainly include a link so that they're helping you out!

    Michelle, CDs and Internet downloads are indeed fixed forms of expression, so copyright applies to those forms.

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