Question (sortof for fini but whoever)

[junebug]

I know you're in law school right now fini, so I thought I would throw one at you (and anyone else who wants to interject their two cents). Not terribly complicated so hopefully I won't have to pay you any f$ (hehe).

My husband is in a band. He doesn't write any music (he's the drummer). I took videos of the band playing songs, both originals and covers, and put them on a website. Now, from what I gather, if they don't want me using their songs I can't. (They don't). However, would it be okay to post short clips? Would that be something like fair use? And what about the cover songs? I don't see how they can really go after me for posting a video of them playing other people's songs. I think they're actually more worried about their own a**es since they've been playing these covers. But, is playing live covers illegal? I thought that was pretty common. Anyways just want some opinions. THANKS! By the way, I will post both URLS (mine and hers--er, see note below) in a separate post in case you're interested, but I don't want them to be searching for their band name and come up with his post so I'm not going to put it here.

PS I had on my website (it was just in a folder on my business website, not actually its own URL) a banner that said bandname.net since she had bandname.com and I was planning on registering bandname.net. Well turns out it's now just been registered! Gee I wonder who registered it?!? lol I'm kinda glad because I'd rather have a .com anyways.... so I went ahead and registered band-name.com today.



***WARNING LONG UNIMPORTANT STORY***
(but hopefully a little bit interesting)

Here's where a little bit of the trouble started--I was supposed to be doing their official website. I made a little page and showed it to them, they liked it, everything's fine. Well the lady who actually had the website *account* (a sister) lives right by their practice house (30 min away from my house). I went there one time and uploaded the main page that I had made, and left her my phone numbers and emails because she couldn't get me a separate user name and password to the account and she didn't want to give me hers--hence I was going to have to go there every time it needed to be updated. We couldn't transfer the domain because it had just barely been registered. So we were trying to figure that out and she was supposed to call me. Well she never did and *other* people were causing a lot of drama at their practices so they said "band members only at practices" and I wasn't really able to go anymore. So they decide to get another guys's wife to do it (since I'm taking so long--go figure) and the website is TERRIBLE. And I mean terrible. My little brother could do a much better job. She used some kind of Homestead program and it's just really bad. So I'm like, ok, it was gonna be alright for someone else to do it, I'm not that pushy or egotistical, but not if it's gonna suck. So I make my own, and email her and ask her for her opinion, saying there are some minor problems (major understatement but I'm being nice here) with her website. She never emails me back. (she's a bit of a snobby b****.) So i'm like, whatever, I'll put some *good* pictures on mine and video and all this and tell some people about it if they want to see it. Oh yeah, I also used a lot of her ideas *just because* I was trying to incorporate her ideas into my design and maybe she would like it more. Well then we have this HUGE blowup later on. She finds out about it, I guess (not that I was keeping it a secret or anything--remember, I emailed her). Her husband was screaming at me and everything because they're really weird and think they're better than everybody and I guess I stepped on their toes. Anyways that's why they're all mad and wanting me to take the video (and her stuff which I don't want anyways) down. But it's so dumb because if they would have just *communicated* with me in the first place I would have known what they wanted! However, now that everything has happened and they have screamed at me, I pretty much just want to do the exact opposite of what they want me to do. (Just because that's how I am unfortunately)

 

[Moondancer]

From a personal point of view, it sounds like there are a lot of ego conflicts with the band and their significant others. I'd take yours down and let things unfold as they may, but keep everything backed up on your computer for when they are needed... You'll look better in their eyes by being the nice calm one who rolls with the punches. I can almost guarantee there will be a sometime in the future. The part about you taking so long sounds like it was just an excuse because this other lady wanted to do it and those knowing you aren't the pushy type but this other lady has a few chips on her shoulder figured it'd be alright to just let her do it and maybe she'd be happy instead of causing waves.

You stepped on her 'creative toes' and being what I'd call very thin-skinned, she took it personally. Best to just let it go and keep your stuff to yourself cuz you'll need it sometime. People like that also give up easily when the going gets tough.

As for the .com you acquired, I'd just sit on it for awhile, maybe develop the site only if you don't have to obtain hosting to do so, and let the future decide what's what. Sounds like this band might not last very long with all the explosive temperaments around. Even if the band members get along among themselves, all these other close personalities can cause a breakup.

For any truly legal advice on the domain name issue, you'll have to wait for fini or one of the lawyers who seem to be members here.

 

[junebug]

Thanks Moondancer. Yeah I'm not really one to push issues so we'll just see how it goes. I am going to keep updating my website (btw, later on the husband did apologize to my husband for yelling at me and said that it would be okay for me to keep up the site because they acknowledged that my pictures and stuff *are* better). But i'm not going to start making merchandise with my address on it or anything, so no problems there. We'll see.

 

[Moondancer]

You're welcome, junebug. Hope it all works out to everyone's good.

 

[jberryhill]

I don't see how they can really go after me for posting a video of them playing other people's songs.

Because they have a right in their performances of them.

When you shoot a video of someone performing a song, the following rights are relevant:

1. Your copyright in the video.

2. The performer's copyright in the performance.

3. The composer's copyright in the underlying work being performed.

If you don't have permissions for 2 and 3, then you can't do much with 1.

But, is playing live covers illegal?

Is driving a rented car illegal? No. But you do have to pay for the rental. A composer of a song has the exclusive right to authorize performance of that song. If this band is playing someone else's songs at their performances, then, yes, they have to pay royalties.

 

[namedropper]

But, is playing live covers illegal? I thought that was pretty common.

Lots of illegal things are pretty common, that doesn't make them legal.

 

[DNQuest.com]

John, I was in the music scene a long while ago, I believe a band can play cover tunes without paying royalties, but bands cannot record them in anyway wihtout out first getting permission (IE- paying royalties).

That's why when you hear a band play, they will play covers and originals, but when they sell thier CDs, you will only get the originals and none of the covers.

 

[namedropper]

I was in the music scene a long while ago, I believe a band can play cover tunes without paying royalties, but bands cannot record them in anyway wihtout out first getting permission (IE- paying royalties).

That may be a popular misconception, but it's still wrong. They are required by law to pay royalties or make some other arrangement with the copyright holders. Most don't, but that's because they either figure some small nothing band isn't going to get caught or because they are ignorant of the law. The reason they don't record them is because it's easier to get caught that way.

Karaoke companies? Pay royalties, or break the law. Companies playing music in their stores? Better come from the radio (which already has arrangements made), Muzac service (paid royalties as part of fee) or some source in which they paid for public display rights, or they are breaking the law. a band actually playing songs live is just the same, if not worse.

It's another case of where people break the law constantly but if the owners were to enforce their rights it'd cost them a lot of money to get minimal payment back and make them look like the bad guy. Look at all the bad publicity record companies got for enforcing their rights and taking people who knowingly steal their music through illegal downloads to court.

 

[junebug]

Still haven't gotten any opinions on the short clips?

<EDIT>
Found this today...

http://www.talkbass.com/forum/showthread.php?s=&threadid=68988

Speaking of covers...

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Anticipating the next question, and expanding on granny's inquiry (don't sweat it man, there's no such thing as a stupid question )...

Do you owe a performance royalty to the publishers of songs when you play covers live? Technically, yes....but in practice, no.

Realizing the near impossibility of tracking the royalties, let alone collecting them from bands, the industry worked it out so that the live venues themselves are responsible for payment. The principle is basically the same as when a radio station plays a song and must pay a royalty. But instead of keeping track of actual songs played, and how often, the clubs pay BMI and ASCAP (you may have noticed their logo stickers on a club's front door) a monthly fee that is determined by how often they have bands performing, what percentage is cover material, etc. Anyone know any of the detail as to how this is computed, and what the actual fees amount to?

The funds go into a pool and are shared by songwriters collectively, again based on some deep dark secret formula. I'm still waiting for my check .