Legal Question: Posting Performances on the Net

[AllenLowe]

if one is trying to illustrate a point, demonstrate something, etc etc - is it legal to post a performance for which the copyright is held by a third party, as long as it is not for download?

and if it is illegal to post a full performance, is there a fair use idea of how long an excerpt might be?

Edited August 29, 2010 by AllenLowe

[Neal Pomea]

One way to look at this is the length of preview clips on Amazon etc. They are usually only 30 seconds long, no matter the length of the whole. I know that for my Web site 2 companies only wanted to give permission for 30 second clips, acting as if this were some kind of industry standard. I don't think it is an industry standard, much less a fair use guideline since 30 seconds represents a greater percentage of a 3:00 minute song than a 15:00 minute song, obviously, but I guess Amazon claims fair use on the basis of the brevity of the clips. It's all backward since it's the copyright holder who should be paying Amazon for the publicity, although that would smack of the radio payola scandal.

[marcello]

You may find your answer from Alan Bergman

[Elissa]

I've wondered the same thing, especially when checking out 'live at smalls'cause they often broadcast live video

Edited August 30, 2010 by Elissa

[AllenLowe]

yeah, I'm thinking of posting some of my books online with performances -

good idea on the Bergman, I'll have to check through his stuff -

I want to put out my '50s jazz book with a cd set, in case anybody knows of a European label that might be interested.

[Dan Gould]

I've wondered the same thing, especially when checking out 'live at smalls'cause they often broadcast live video

I don't understand why this is related to Allen's question. Smalls clearly indicates that the artists are consulted both on live video streams and what audio recordings are added to the archive. So its all done with approval and doesn't fall under any sort of "fair use doctrine".

[Chuck Nessa]

Licenses for the music (compositions, not the recordings) should be obtained. There are a number of different fee schedules (streaming, downloads, etc.).

[AllenLowe]

ok - but I'm assuming that such payment does not constitute permission to post the performance - or does it?

[Chuck Nessa]

no.

[Chas]

is it legal to post a performance for which the copyright is held by a third party, as long as it is not for download?

The differential royalty rates for streaming vs. downloaded content notwithstanding, if something can be streamed it can be downloaded.

[Brad]

if one is trying to illustrate a point, demonstrate something, etc etc - is it legal to post a performance for which the copyright is held by a third party, as long as it is not for download?

and if it is illegal to post a full performance, is there a fair use idea of how long an excerpt might be?

I'm not a copyright attorney but I believe the answer is yes. You're depriving the holder of royalties.

[Tom Storer]

I want to put out my '50s jazz book with a cd set, in case anybody knows of a European label that might be interested.

Wait a minute. What '50's jazz book?

(Allen Lowe: "SOMEONE STOP ME BEFORE I PUBLISH AGAIN!")

[Neal Pomea]

I would like to point out that fair use is what makes it possible for a journalist or critic to quote a politician or an author and criticize him or her without needing to get the person's permission. If you needed permission, a person who had said something embarrassing could simply deny permission and that would be the end of it.

Far from being a dubious doctrine that needs to be put in quotes like "so-called fair use," hinting that it is near communist or immoral because it deprives someone who deserves payment, it is an important part of freedom of the press, and not all uses of copyrighted material need permission.

Why shouldn't a music critic, journalist, or educator be able to reference a passage (a short one) for criticism and comment? Demanding permission and payment for short passages that elucidate a critical point sounds antithetical to freedom of the press and education in general.

[AllenLowe]

good points, thanks -

as to "what 50s book?" I have a book on the history of jazz in the '50s that has been nearly complete for some time - maybe 7-8 years. I haven't found a publisher, so I am toying with idea of posting it myself on my future web site.

[Claude]

I guess Amazon claims fair use on the basis of the brevity of the clips. It's all backward since it's the copyright holder who should be paying Amazon for the publicity, although that would smack of the radio payola scandal.

I think in the case of the Amazon preview clips it was actually a composers union who wanted to be paid for the use of the clips, not the labels whose CDs Amazon is selling. That would have been dumb indeed.