Music and the law: do I have to agree to musical performances being recorded and put online?
An example inspired by the practice of the legal counsel of the Swiss Society for Music Pedagogy. Yvette Kovacs, Doctor of Law, SSPM legal advisor and attorney-at-law in Zurich, answers questions from SSPM members.
Question from an SSPM member: during an audition at a music school, a mother filmed the entire performance with her smartphone and uploaded it to YouTube. Does she have the right to do this?
Response from Yvette Kovacs:
This legal issue, which arises daily in our Internet-dominated world, raises a number of different aspects. These are briefly outlined below:
1. The law of personality provides that any use of a personality, whether in the form of images, sound or in any other way, is unlawful unless the person concerned has given his or her consent, an overriding interest prevails or the law justifies it. Exceptions are recordings of crowds in which individuals are not identifiable. In the present case, this means that audiovisual recordings of a concert made without the consent of the performers are unlawful, if only for reasons of respect for personal rights. If the recording has already been made, you can demand that it be removed from your smartphone and YouTube. If this sup-pression cannot be achieved amicably, it can be enforced through the courts.
2. Copyright protects the author and performers of works of art. This protection is based on the principle that only the author, respectively the performer, has the right to determine whether, when and how a work may be used, and in particular performed, broadcast or otherwise made visible or audible. As soon as content is put online, for example on a YouTube channel, it can be viewed by third parties, so this decision is the exclusive right of the author or performer of the work. If several people have participated as artists in a production, they enjoy this protection right collectively, which means that each of them must approve the recording and its posting online. However, for a choral, orchestral or scenic performance, only the authorization of the soloists, the conductor, the director or the leader of the group of performers (choral or orchestral conductor) is required. In addition, in the case of interpreted works, the authorization of the author and/or publisher, or of the arranger or adapter, is required for living or deceased persons under 70 years of age. Such persons are often represented by SUISA, which is the body to contact first for information.
3. Conclusion: recording and uploading to a YouTube channel requires the permission of all participants in the performance. Even if the video is intended for private use and not to be put online, the authorization of all recognizable persons is required for reasons of personality rights.
For this reason, it is very useful in the event of a performance to conclude an agreement explicitly regulating any recordings and their posting online, bearing in mind that it is difficult to obtain the agreement of all participants. I therefore urge you to include a contractual clause, to be signed by all participants in a performance when they join a choir or orchestra, or when they are engaged as soloists, conductors or stage directors, stipulating that they agree to the performances being recorded and placed on the Internet with the agreement of the group's conductor. Ideally, certain quality standards should also be set, as well as the sites to which the recordings are uploaded, or undesirable uploads to certain media or channels should be expressly excluded. This is a simple solution that avoids misunderstandings and even complaints.
It is also the responsibility of the performance organizer to inform all participants, and above all the audience, that taking photographs and making sound and audiovisual recordings are forbidden, on pain of immediate expulsion from the hall and possible legal proceedings. These prohibitions must be systematically enforced, as the public will only respect them if they are applied to everyone. If someone starts filming a performance, others often follow suit, and it's very common for concerts to be recorded with a smartphone and immediately posted on the Internet, "because that's what everyone else does". It is therefore important to address this issue before any public performance, to know what attitude to adopt and whether to deci-ve and enforce a ban, or to ensure that participants would not be disturbed or even enjoy appearing on the Internet.
Finally, it should be borne in mind that if rights holders are aware of smartphone use and Internet downloads, but do nothing to oppose them, this kind of infringement of rights is deemed to have been approved at some point. Unwanted recordings and downloads must therefore be eliminated as quickly as possible, so as not to give the impression that they are tolerated or even desired.
An example inspired by the practice of the legal counsel of the Swiss Society for Music Pedagogy. Yvette Kovacs, Doctor of Law, SSPM legal advisor and attorney-at-law in Zurich, answers questions from SSPM members.
Question from an SSPM member: during an audition at a music school, a mother filmed the entire performance with her smartphone and uploaded it to YouTube. Does she have the right to do this?
Response from Yvette Kovacs:
This legal issue, which arises daily in our Internet-dominated world, raises a number of different aspects. These are briefly outlined below:
1. The law of personality provides that any use of a personality, whether in the form of images, sound or in any other way, is unlawful unless the person concerned has given his or her consent, an overriding interest prevails or the law justifies it. Exceptions are recordings of crowds in which individuals are not identifiable. In the present case, this means that audiovisual recordings of a concert made without the consent of the performers are unlawful, if only for reasons of respect for personal rights. If the recording has already been made, you can demand that it be removed from your smartphone and YouTube. If this sup-pression cannot be achieved amicably, it can be enforced through the courts.
2. Copyright protects the author and performers of works of art. This protection is based on the principle that only the author, respectively the performer, has the right to determine whether, when and how a work may be used, and in particular performed, broadcast or otherwise made visible or audible. As soon as content is put online, for example on a YouTube channel, it can be viewed by third parties, so this decision is the exclusive right of the author or performer of the work. If several people have participated as artists in a production, they enjoy this protection right collectively, which means that each of them must approve the recording and its posting online. However, for a choral, orchestral or scenic performance, only the authorization of the soloists, the conductor, the director or the leader of the group of performers (choral or orchestral conductor) is required. In addition, in the case of interpreted works, the authorization of the author and/or publisher, or of the arranger or adapter, is required for living or deceased persons under 70 years of age. Such persons are often represented by SUISA, which is the body to contact first for information.
3. Conclusion: recording and uploading to a YouTube channel requires the permission of all participants in the performance. Even if the video is intended for private use and not to be put online, the authorization of all recognizable persons is required for reasons of personality rights.
For this reason, it is very useful in the event of a performance to conclude an agreement explicitly regulating any recordings and their posting online, bearing in mind that it is difficult to obtain the agreement of all participants. I therefore urge you to include a contractual clause, to be signed by all participants in a performance when they join a choir or orchestra, or when they are engaged as soloists, conductors or stage directors, stipulating that they agree to the performances being recorded and placed on the Internet with the agreement of the group's conductor. Ideally, certain quality standards should also be set, as well as the sites to which the recordings are uploaded, or undesirable uploads to certain media or channels should be expressly excluded. This is a simple solution that avoids misunderstandings and even complaints.
It is also the responsibility of the performance organizer to inform all participants, and above all the audience, that taking photographs and making sound and audiovisual recordings are forbidden, on pain of immediate expulsion from the hall and possible legal proceedings. These prohibitions must be systematically enforced, as the public will only respect them if they are applied to everyone. If someone starts filming a performance, others often follow suit, and it's very common for concerts to be recorded with a smartphone and immediately posted on the Internet, "because that's what everyone else does". It is therefore important to address this issue before any public performance, to know what attitude to adopt and whether to deci-ve and enforce a ban, or to ensure that participants would not be disturbed or even enjoy appearing on the Internet.
Finally, it should be borne in mind that if rights holders are aware of smartphone use and Internet downloads, but do nothing to oppose them, this kind of infringement of rights is deemed to have been approved at some point. Unwanted recordings and downloads must therefore be eliminated as quickly as possible, so as not to give the impression that they are tolerated or even desired.
