By Tal Dickstein and Nathalie Russell

Law360 (April 9, 2020, 2:51 PM EDT )

Tal Dickstein

Nathalie Russell

As social distancing and self-imposed quarantines have become the norm, the live concert business has come to a screeching halt. Performing artists whose concerts have been canceled are increasingly turning to online streaming as a way to try to make up for lost income, to help raise money for charitable causes, or just to lift their fans' spirits in the way only music can.

With live musical performances increasingly being streamed on social media platforms such as YouTube, Facebook and Instagram, aided by new searching and indexing services like StubHub's LiveHub and LiveNation's Live from Home, both performing artists and music publishers who control the rights to copyrighted musical works (the underlying music and lyrics of a song) should be aware of the legal implications of this shift to online streaming. 

Whenever a performance of a musical work is streamed over the internet, there are at least two sets of copyright interests involved: the exclusive right to publicly perform a musical work and the exclusive right to reproduce, prepare derivatives and distribute copies of a work.[1] 

Each of those sets of rights is potentially implicated by modern streaming technology, and each potentially requires a different type of license. Users and digital services who want to record and distribute an artist's performance also need to consider the rights of the sound recording copyright owner, as well as the artist's rights to prevent illegal bootleg recordings.

When is a performance public?

A copyright owner's exclusive rights do not extend to strictly private performances, such as parents' singing lullabies to their children. But when a musical work is performed publicly, such as at a sold-out concert or in a television or radio broadcast, a public performance license is needed in order to avoid a claim of copyright infringement. 

When might online streaming of a live musical performance be considered a public performance? The Copyright Act provides that a work is performed publicly when it is either:

1. Performed "at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered"; or

2. "[T]ransmit[ted] or otherwise communicat[ed]" to such a place "or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times."[2] 

The second part of this provision makes clear that a performance need not be in person in order to be considered public. The internet qualifies as a device or process that is capable of transmitting performances to people "in separate places and at the same time or at different times." 

The U.S. Supreme Court recognized as much in ABC Inc. v. Aereo Inc., where it held that a service that allowed its subscribers to watch television programs over the internet constituted a public performance, even though each transmission (or stream) could be received by only one subscriber at a different location and potentially at a different time from other subscribers.[3] 

So, it's clear that a stream over the internet can be considered a public performance, but when is an online stream actually considered a transmission or communication to the public? The Supreme Court touched on this question in the Aereo case when it explained that the public consists of "a large group of people outside of a family and friends."[4]

And at least one district court, the U.S. District Court for the Central District of California has held that a transmission is considered to be made to the public if the relationship between the performer and the audience is commercial in nature, even if the performance is transmitted to the audience in their private homes.[5]

Using FaceTime to sing a song for a relative across town, or even using Zoom to perform a song for a small group of friends, would therefore not be considered a public performance, while streaming a musical performance on YouTube's advertisement-supported home page for all the world to see likely would. 

What about examples between those extremes? What if a performing artist invites his 1,000 Facebook friends to watch him perform the latest hit song by The Weeknd? At least one court, the U.S. District Court for the Southern District of New York has recognized, albeit in a different context, that the term "friend" has less meaning on social media than it does in real life (sometimes referred to as IRL).[6]

Unless the artist is actually acquainted with each of those 1,000 Facebook friends, the performance would likely be considered public and therefore require a license from the copyright owner of the musical work being performed. That is especially so if the artist is charging people to watch the performance, or generating advertising or sponsorship revenue from the performance.

Moreover, a performance that is made available to members of the public might be considered a public performance even if only a small number of people actually watch the stream online.[7] 

Fortunately, it is relatively easy to obtain a license for livestreaming performances over the internet. Several of the major Performing Rights Organizations — Broadcast Music Inc., American Society of Composers, Authors and Publishers, Society of European Stage Authors and Composers, and Global Music Rights — already license certain social media platforms to stream performances of the musical works in their repertoire.[8]

If performing artists want to use another social media site or distribution platform that does not have a PRO license, they may be able to obtain a license themselves. This can be done either through the PROs, which offer blanket licenses that allow the licensee to stream any of the tens of millions of songs in their repertories, or, if the artist only wants to perform songs by a particular songwriter, by obtaining a license directly from the music publisher that controls that songwriter's songs.

All of the major PROs, as well as the mechanical licensing agent The Harry Fox Agency, offer online databases that can be searched to identify the songwriter and music publisher of a particular song.[9]

Pause before recording.

In addition to the exclusive right of public performance, the copyright owner of a musical work has the right to control the recording of live performances of the work, as well as the distribution and sale of copies of that recording.[10]

This is important to keep in mind, because the line between publicly performing a work and creating and distributing copies can be crossed simply by clicking record on whichever social media website or digital platform is being used to stream the performance. Some platforms even turn on the record function by default, which the performing artist will need to disable if they don't intend to record their performance. 

Assuming an artist chooses to record her performance, what type of license does she need? If the performance is audio-only, the recording is being made in order to distribute copies to the public — either through digital downloads, on-demand streaming, old-fashioned vinyl records or CDs — and the artist gives prior notice to the owner of the copyright in the musical work, then the artist may qualify for a statutory mechanical license.[11] This is the most inexpensive form of license, as the rates are set by government regulation at pennies, or fractions of a penny, per copy or stream sold. 

If, on the other hand, the artist wants to record and distribute copies of her performance in video format, a mechanical license won't apply. Instead, a synchronization license is required. There are no government regulations for sync licenses, so they have to be negotiated with the music publisher who controls the musical work being performed.

Once the music publisher of a particular work is identified, which can be done by searching the PRO websites identified above, it is relatively easy to contact the appropriate publisher through its website to request a sync license. Some publishers may even offer reduced rates for noncommercial uses or gratis licenses for charitable causes. 

Don't forget about artists' rights.

Any discussion of the rights needed to record and distribute copies of a musical performance would not be complete without considering the rights of the performing artists themselves. The artist (or a record label that has signed the artist) owns the recording of her performance, which is subject to its own copyright separate from the underlying musical composition copyright.[12]

Anyone who wants to exploit a recording of someone else's musical performance — such as by selling downloads, on-demand streams or otherwise making and selling copies of the recorded performance — will need a license from the artist or her record label, in addition to a license from the music publisher that owns the underlying musical work. 

In addition to the copyright in their recorded performances, performing artists have the right to prevent unauthorized recordings of their musical performances in the first place — known as bootleg recordings — as well as any distribution of those unauthorized recordings.[13] 

To avoid potential liability for making or distributing illegal bootleg recordings, digital platforms and music users should ensure that all artists, including both lead performers and any backup singers or musicians, have consented to the making and commercial exploitation of recordings of their performances.

While there is no express requirement in the Copyright Act that consent be in writing, getting written consent is considered a best practice to avoid any dispute down the road about whether the performing artists have consented to the recording and exploitation of their performances.

Conclusion

By following the steps outlined above, performing artists, record labels, music publishers and songwriters alike can hopefully continue to generate income through online streaming of musical performances, which are not only an important form of entertainment but a way for people to feel connected to each other even when physically separated.

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Tal Dickstein is a partner and Nathalie Russell is an associate at Loeb & Loeb LLP.

The opinions expressed are those of the authors and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] 17 U.S.C. § 106(1)-(4).

[2] 17 U.S.C. § 101. 

[3] 573 U.S. 431, 446-49 (2014); see also Spanski Enters. v. Telewizja Polska S.A. , 222 F. Supp. 3d 95, 112 (D.D.C. 2016) (website that streamed television episodes to subscribers constituted public performance); United States v. Am. Soc. of Composers, Authors, Publishers , 627 F.3d 64, 74 (2d Cir. 2010) ("A stream is an electronic transmission that renders the musical work audible as it is received by the client-computer's temporary memory. This transmission, like a television or radio broadcast, is a performance because there is a playing of the song that is perceived simultaneously with the transmission."); Disney Enters. v. VidAngel, Inc. , 224 F. Supp. 3d 957, 970-971 (C.D. Cal. 2016), aff'd, 869 F.3d 848 (2017) (service that streamed edited versions of motion pictures to its customers violated copyright owners' public performance rights); Munhwa Broad. Corp. v. Song , No. CV 14-04213-RGK(RZx), 2015 U.S. Dist. LEXIS 77909, at *9 (C.D. Cal. May 12, 2015) (centrally-managed file-sharing technology constitutes public performance).

[4] 573 U.S. at 446-49.

[5] See Disney Enters. v. VidAngel, Inc. , 224 F. Supp. 3d 957, 970-971 (C.D. Cal. 2016), aff'd, 869 F.3d 848 (9th Cir. 2017).

[6] See Williams v. Scribd, Inc. , No. 09cv1836-LAB(WMc), 2010 U.S. Dist. LEXIS 90496, at *15-16 (S.D.N.Y. June 23, 2010) ("it's no secret that the 'friend' label means less in cyberspace than it does in the neighborhood, or in the workplace, or on the schoolyard, or anywhere else that humans interact as real people") (citing Aimee Lee Ball, "Are 5,001 Facebook Friends One Too Many?" N.Y. Times, May 28, 2010).

[7] H.R. Rep. No. 1476, 94th Cong., 2d Sess., at 64, reprinted in 1976 U.S. Code Cong. & Admin. News 5659, 5678 ("a performance made available by transmission to the public at large is 'public' even…if there is no proof that any of the potential recipients was operating his receiving apparatus at the time of the transmission."); see also 2 Nimmer on Copyright § 8.14[C][1] (2019) ("The fact that only an insubstantial number of people actually attend a performance does not derogate from its public character if, under those restrictions, a substantial number of persons outside of a normal family circle and its social acquaintances could have attended.").

[8] See A Checklist for Using Music in Film or Other Audio-Video Content https://www.ascap.com/help/career-development/a-checklist-for-using-music-in-film (last visited April 1, 2020); Paul Resnikoff "Facebook Finalizes Licensing Deals With GMR, Kobalt & SESAC," Digital Music News, January 11, 2018 (available at https://www.digitalmusicnews.com/2018/01/11/facebook-gmr-sesac-kobalt/ last visited April 1, 2020).

[9] See BMI Repertoire Search https://www.bmi.com/search (last visited April 1, 2020); ASCAP Repertory Search https://www.ascap.com/repertory (last visited April 1, 2020); SESAC Repertoire Search https://www.sesac.com/#!/repertory/search (last visited April 1, 2020); HFA's Songfile Search https://secure.harryfox.com/songfile/termsofuse/publictermsofuse.do (last visited April 1, 2020); GMR Catalogue Search https://globalmusicrights.com/CatalogRequest (last visited April 1, 2020).

[10] See 17 U.S.C. § 106(1)-(3); In re Application of Cellco P'ship , 663 F. Supp. 2d 363, 369 n.6 (S.D.N.Y. 2009) ("Sound recordings are 'derivative' works of the preexisting musical composition"); Stewart v. Abend, 495 U.S. 207, 232 (1990) ("a derivative work author may not employ a copyrighted work without the [original] author's permission")).

[11] See 17 U.S.C. § 115; ABKCO Music, Inc. v. Sagan , No. 14 Civ. 4025(ER), 2018 U.S. Dist. LEXIS 60026, at *4 (S.D.N.Y. Mar. 30, 2018) (outlining the statutory scheme covering the licensing of musical works under the Copyright Act).

[12] See 117 U.S.C. 102(a)(2),(7) (providing for separate copyrights in musical works and in sound recordings).

[13] See 17 U.S.C. § 1101(a)(1) (prohibiting "fix[ing] the sounds or sounds and images of a live musical performance in a copy or phonorecord, or reproduc[ing] copies or phonorecords of such a performance" "without the consent of the performer or performers involved").

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