Q: Fair Use and Lic. Fees – Recording / Sharing with Friends

Scott Shewbridge · From: Bay Area, N. California

Because it has been a touchy subject, please do your best to stay narrowly focused on the question at hand. I am looking for opinions on a very specific matter, not a broad ranging discussion on the overall commercial and philosophical issues. Those discussions are very interesting, but I can use the search function to rehash those. This is a question I haven't been able to answer. I don't think it's been posed before.

The Situation:

If I perform a song written by someone else, for free at a commercial venue that pays the appropriate licensing fees for live performances, can I record myself and share it with friends (and possibly friends of friends) in a semi-closed social networking site without paying an additional licensing fee?

I suspect this is a pretty common situation.

Let me state it again, in a simpler manner.

I want to play “Your Cheatin’ Heart” at the local coffee shop and want to share a video of myself singing it with my friends and family on Facebook.

Can I do this legally?

Tony Prior · From: Charlotte NC

ok, here's the answer...

legally you can perform it..

Illegally you can record it and distribute it but I think a few copies isn't going to turn the world on it's end.I don't think the "Cheatin' Heart" Police are actually on duty but the MP3 Download Police are on duty but they are not tracking your recorded songs...

Recording a song that is not yours and distributing it is an ILLEGAL act without appropriate licensing.. I didn't make the rules, I just know em' !
_________________
Emmons L-II , Fender Telecasters, B-Benders , Eastman Mandolin ,
Pro Tools 12 on WIN 7 !
jobless- but not homeless- now retired 9 years

CURRENT MUSIC TRACKS AT > https://tprior2241.wixsite.com/website

Mike Neer · From: NJ

If you are recording and distributing a song that you didn't write, you need a mechanical license (something that would be done through the Harry Fox Agency). This has nothing to do with the performance rights, which fees were paid to ASCAP by the establishment.

OK, I checked a little further into this. If you record a live performance of a cover song and post it on Youtube, the copyright holders have a right to have cover versions of their songs pulled down. Initially Youtube had problems with publishers and copyright holders, but they cleared things up. You don't need to buy a license for this. If you are sharing it privately with friends and family, I would hazard a guess and say you've got nothing to worry about, morally or legally.

If you wanted to sell these commercially, that would be a different story. Unless the song is public domain (written before 1923), you'd need to obtain a license. It's really not all that scary as you would think it is.
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Links to streaming music, websites, YouTube: Links

Scott Shewbridge · From: Bay Area, N. California

Thanks guys, appreciate the feedback. Following leads you gave, it looks like companies like the Harry Fox agency are clearinghouses for "Mechanical Licences" and the fees aren't too bad for limited distributions.

In my follow up research, I did come across some interesting sites that might be of help to others too:

Center for Social Media Fair Use Best Practices for Online Video

Interesting Story on A Fella's Efforts to Legally Release His First Indie CD

It does seem like sharing self-recordings on CDs and such with friends and family has been tollerated in the past, but it is not clear whether online sharing through a semi-closed environment, like Facebook, will be viewed as a violation of "distribution" rights.

Youtube is clearly open distribution and subject to the take down requests. I don't know if anyone has sought remuneration for violations though. Considering how big judgments on MP3 sharing have been, that is still a bit scary.

Paul Sutherland · From: Placerville, California

Scott: Can you tell me how much does it cost to get a license to put a copyrighted song on YouTube? Assume there is no profit involved in the posting, as you are not trying to sell anything. Is there a set amount, or does it vary depending on the publishing company, or perhaps on your history of the # of people that have watched your previous videos, or on some other formula?

Ray Minich · From: Bradford, Pa. Frozen Tundra

Paul has a question that I always wondered about...

How much would it cost for me to legally post a video of me playing, perhaps my most favorite copyrighted tune, on the steel, onto youtube, so'z I could get rich and famous, but not get into trouble?
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Lawyers are done: Emmons SD-10, 3 Dekleys including a D10, NV400, and lots of effects units to cover my clams...

Scott Shewbridge · From: Bay Area, N. California

Hey Paul and Ray,

Sorry to take so long responding. I've been out of town the last few days listening to some great steel players supporting new members as they are inducted to the Sacramento Western Swing Society Hall of Fame. Very Happy

As you know, the Internet is rife with bad research and of course none of us are offering legal advice ( Neutral

), but from research I've done, it seems like limited loading licenses are pretty cheap. On one website (Song Clearance on Limelight), using their online forms, I looked up the fee to share 50 downloads of Blues for Dixie (a song I have been known to embarrass myself performing in public). It looks like it would cost about $20.

The form is pretty self explanatory and the fee is keyed to the length of the song and the number of downloads. The fee is based on the "statutory" Mechanical License fee, which I believe is the same for all songs and is currently about 2 cents per minute of song per copy. So the 20 bucks above is mostly the processing fee (flat rate ~$15 plus the appropriate number of the $0.02 fee).

I am assuming that my Facebook loading to "friends only" will be considered a digital download with limited distribution (i.e., my 50 friends). There is no view counter on Facebook videos, but I assume once my friends hear me the first time, they won't download it again. Wink

Youtube seems much more complicated and is likely a new area of law with few precedents. Potentially you could have millions of downloads with absolutely no revenue stream to yourself, a very accurate accounting of the number of times the video was distributed (i.e., the hit counter), and potentially an open ended liability for violating the distribution rights of the original writer/publisher of the song. Damages are not based on economic gain to yourself; "it wasn't profitable" does not appear to be a valid legal defense.

From what I have read, it does not seem like the music publishing industry has developed an easy way for a home video maker to purchase a license. I think most people posting videos of themselves doing covers are naive/ignorant (like me) or hoping to fly under the radar. So far it seems like the industry response is the dreaded "take-down" notice, but unfortunately, lawsuits could possibly occur, though I don't think anything has been filed to date.

I think the industry should develop something for small-time self-produced videos. Until the industry comes up with something, I think the Fair Use Best Practices guides I referenced above may be your best bet. From what I've read, it looks like some uses of copyrighted materials are actually protected under the First Amendment. The guidelines provide some understanding of how that works.

Hmmm, looking back, seems like I said quite a bit. Did I answer the question, or just confuse myself? Wink

Again, Paul it was a real pleasure to see you and the Stardust Cowboys this last weekend. Congratulations to all of you. I also had a great time hanging out and playing in the Jam room. The Steel Guitar and Western Swing communities are the best!

Tony Prior · From: Charlotte NC

One thing that has happened over the past year or so is the mechanical license can now be purchased for much smaller qty's than previous, so I guess things are changing . I suspect that many of the copyright holders would prefer that folks pay a SMALL fee rather than no fee and get shut down...we are at a new age of music and video, we may be 10 years ahead of the lawyers !
_________________
Emmons L-II , Fender Telecasters, B-Benders , Eastman Mandolin ,
Pro Tools 12 on WIN 7 !
jobless- but not homeless- now retired 9 years

CURRENT MUSIC TRACKS AT > https://tprior2241.wixsite.com/website

Ray Minich · From: Bradford, Pa. Frozen Tundra

I had a feelin' it was still a danger zone.

IP (intellectual property) is a hot legal/lawyer revenue stream right now, and it's only gonna get worse. I just hope the writers and artists get their cut.

Thanks for the advice and update Scott. I really appreciate it.
_________________
Lawyers are done: Emmons SD-10, 3 Dekleys including a D10, NV400, and lots of effects units to cover my clams...

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