This is an overview of policy and rights relating to streaming and recording at the university I work at. Of all the questions I get since we began streaming in 2009, the question of how we handle rights is the most common.
Disclaimer, I am no longer at UNT, and this archived article may have outdated or inaccurate information.
Since this involves legal issues you should seek advice from an actual lawyer for your own organization. You should establish a dialog with legal professionals for advice, and also because they would represent you incase of a challenge. This is also written by me personally and not on behalf of the university. Lastly, this contains most of our process, but not all of it.
The recording department has a few distribution outlets for media such as downloads and streams and each outlet has rights to consider. Those outlets break down into three categories:
- Live streaming/broadcast.
- Private/Authenticated streaming and downloads.
- Public on-demand streaming.
The department does not offer public downloads of archived concert recordings (paid or free), so that is not a type of distribution covered here.
There are two rights: Public Performance, and privacy.
When providing a live stream to the public (Youtube/facebook…etc) it is a broadcast and a public performance right. Copyrighted musical compositions are performed publicly as described in Title 17 §101:
(1) to perform or display it 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) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) 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.
This right is covered by paying a fee to collecting agencies BMI, ASCAP and SECAC. Like most institutions we have a contract with these agencies to cover performing copyrighted musical works in the concert halls to an audience. They are a blanket license for the university since it can cover other types of public performances than classical music, so in our case another area on campus had been administrating these contracts. A live stream is an extension of the live performance as stated in the definition and upheld by a case (source).
Privacy rights are the right to one’s image and likeness to be used for commercial use and are a state-level law (Texas). In each ensemble’s syllabus we have a release statement that the students agree to the university’s use of their image and likeness, and they agree to our broadcasts. We also developed a release form that any guest artist must sign ahead of time that is specifically for broadcast, along with what is permitted with the recording afterwards.
For live streams we do not leave the live recording online for public viewing after the performance. This is a college policy to allow time for the ensemble directors to approve recordings, and also because reposting copyrighted musical content can require permissions. In our opinion the fair use argument doesn’t hold up. It is not limited to students, limited to a small portion of the work, is a a critique, and isn’t face-to-face in a classroom (17 U.S. Code § 110).
If you want a good commentary on public performance and what Internet streaming has done, the Aereo case is a good read:
Private streaming and downloads:
Our media archives allow current students, faculty and staff with university logins to access recorded material. A user provides their credentials and can rewatch or listen to recordings and download them depending on the college policy for a particular event or event type. All recorded concerts are made available in some way unless a contract specifically prohibits it, and in my 10 years here we have only encountered that request once. All those permissions are managed automatically by our online archive (another article I’ve written).
Concert on-demand streaming operates under Title 17, §108 and §110, like most library archives.
Youtube, and Public Posting
We have a four step checklist for posting clips to Youtube, Facebook and other public outlets :
Our college policy requires I have permission from the ensemble director. This makes sure we post quality performances online and also lets them know of clips we are posting so they can promote them.
Regarding the musical work copyrights, the right to the composition performed, we try to post public domain works first. Works published before 1923. That’s easy for baroque or some orchestra works. For our wind ensembles, they commonly play new works by living composers so we obtain written permission from the composer to post the work. The difficult area are works in-between this time frame, 1923–1964, that could be copyrighted and can be difficult to determine. In general those are avoided, but when it needs to happen we evaluate it on a case-by-case basis. It is still possible the piece is flagged by Content ID [more on that shortly] and ads are run, and depending on the composer’s agreement we may dispute it or let them run. A good resource on copyright duration here. Remember with Youtube, there is more going on than what the law says.
For sound recording rights UNT owns the sound recording (17 § 102) since it was made by the university under work-for-hire so we are always good there. However it is important to note that any recording we ingest into our systems have to be made by the department. If the recording were to contain other copyrighted elements, such as a clip from a movie, then we would not re-post this publicly. If an external company or engineer records the work it needs to either be stated in the contract that it was a work for hire or we have created a release for it.
For performer privacy/publicity rights there is a release clause in the class syllabus for the students. For guest artists there is a release form that is signed ahead of the performance, however while we might have the legal authority to publish the content immediately, our policy is to still seek approval from the artist before publishing. This gives them more comfort in signing the agreement ahead of a concert, and so they can promote it.
Copyright Claims & Problems
Youtube runs a Content ID system that scans uploads for copyrighted content provided by approved users. If you have any experience with Youtube copyright identification this might sound familiar, but knowing your rights can help with what to do about it, even if Youtube suggests otherwise.
In my experience Content ID is incapable of properly distinguishing our live self-made recordings with commercial albums. Sometimes the match is during applause. This is specifically the sound recording right. This is the right to the recording itself, owned by who made it (you, company, record label). It then claims our content as someone else’s, starts rolling ads and gives the money to that user.
The way to stop this is by filing a dispute within 10 days. After all the scary warnings about account strikes and abusing the form there is still no way to log the error as an error, but as a video we own all the rights to. The majority, mostly classical labels like Sony Classical, Decca, and EMI usually release it before their 30-day window automatically does.
However there are a growing number of users who do not release it and believe their (Content ID’s claim) is still valid. I can only guess someone on the other end either doesn’t understand the rights in question or is in a rush. In those cases I file a re-dispute. If the other end decides it is still theirs then we get a copyright strike on the account, so I take the time to find the commercial album and the matching selection to prove it is a miss-identification.
How many? Most new uploads get flagged, and are usually incorrect. In our most active 4 month we had about 300 first-level video disputes, and another 30 second-level disputes.
I have petitioned Youtube directly multiple times and their standard response is that they do not get involved in copyright disputes. I suppose it is like the argument that a mechanic doesn’t fix cars, the tools do and they are perfect. I also have applied to be a Content ID holder for our 30,000 recordings, but was declined. It seems the path to this is by running ads [to which Youtube gets a cut], and by having a history of take-down requests. There is also quite the outcry on forums and on Youtube itself for the behavior around this.
There have been a growing number of take-down requests. These are ensemble videos usually ripped from an official post to Youtube, and re-uploaded to Youtube and Facebook. While we have the statement in the archive that ensemble video posting requires permission it can get ignored and we continue to take progressive steps to improve that notice.
Student Recital Recordings
Up until now these are our processes for ensemble concerts that make up about a quarter of our recording load, but what about the other three quarters? For student recital recordings the University retains the sound recording right in order to properly archive it. Our policy though is that students can use the recording itself as they wish, not forgoing other rights like other students who performed or musical copyrights. Faculty and students are allowed to re-stream any recent recital, and only the student can download their recital. We can not be liable for what someone else does with the recording if we have posted legal notifications about copyrights.
We spent some time creating a guest artist release form that covers the three distribution outlets: live streaming, archival, and public [Youtube/Facebook]. The artist is able to check one or all three depending on what they wish to give rights to. The release is accompanied by a explanation of how the recordings are used, in English. We also continue to move as much of this process online finding that the easier the process then the more likely we get it signed ahead of time. Unfortunately we are not able to distribute them publicly by request of our legal office.
In all cases we try to abide by the law, seek permission, and act responsibly. I have had interactions with many colleges on this and found extremes, some are not allowed to post anything and their reputation is from cell phone video, and some post everything publicly. I feel we split the difference and post enough to have professional recordings show the program, but not run a music streaming service.
Hope that helps!