The Right to Royalty-Free Memories

Will you be forced to pay royalties in order to watch your child’s performance on your TV at home? That videotape of your child’s band concert might be illegal, due to overzealous enforcement of copyright laws by the music industry. Motivated by greed, the music industry has simply gone too far.

Consider the case of Mike. He has two kids playing in the high school band: Tom and Nicole. Mike is a typical band booster: he volunteers on the music association board, he helps load and unload all the equipment at events, sometimes he even drives the truck. The kids love the band. They hang out with a group of students who are motivated to cooperate to collectively put on a show. Band students tend to do well in school, and they learn important skills in being able to work with others.

Mike, like most parents, is very proud of his kids’ accomplishments. He wants to capture videotape of every moment of their performance on the field. He wants to show Tom’s and Nicole’s grandparents who live across the country. Never mind the amateur style of photography, there is nothing more delightful than seeing your child or grandchild actually taking part in an successful performance. You and I might not want to watch these recordings, but Mike and his wife would treasure these memories for many years. But Mike is banned from using his video camera at events.

Increasingly, band events are outlawing the use of video cameras to film the kids. The problem: music is being recorded “synchronized” with images of marching – this incurs special synchronization royalties. The organizations that put on such events are truly heroic in giving young student the opportunity to perform, but clearly they are struggling to comply with the legal issues: “Over the past several years, compliance with copyright law has become a matter for close scrutiny by the copyright owners and publishers of copyrighted music. ”

That video recording of your child’s birthday party with the kids singing “Happy Birthday”? — you owe royalties for performance, mechanical reproduction, and synchronization. You probably thinking that this is not possible, because these home recordings are “non-commercial” and therefor not subject to payment of royalty. This is a commonly held misunderstanding about copyrights: you don’t have to charge money to be liable for royalty. There is a standard royalty rate for mechanical reproduction (1.75 cents/minute = $1.05/hour) for every copy. You don’t even have to have any public presentations of the video.

You might be thinking: “but they will never catch me.” Cameras are so small now, there is no way such an event could be policed. Which is why event organizers are turning to blanket bans on the equipment. Mike and his wife are made to feel like they are breaking the law just to get a few shots of the kids in a key accomplishment. Mike always complies with the rule; it can still be very uncomfortable sitting next to another parent who is flagrantly taping the entire show. Do you tell them to stop? Why does the event even have to put you into this situation? Why can’t we be allowed to videotape our own kids?

I am a lot like Mike: my kids play in the school band. (But, to be honest, I don’t carry a video camera, see my posts on HDR for my particular obsession.) I went along with the high school band on their final performance at a band competition in East Los Angeles in November of 2007. I was shocked to see signs posted all over the arena saying “No Videotaping Allowed in Respect for the Copyright Owners of the Music”. The reason given for banning all camcorders was that there was no permission for “mechanical reproduction” of the songs being played. The music industry feels the need to prevent the parents from recording their own kids, because this might cut into their profits.

Let me remind the reader: we are talking about high school bands in a marching band competition. This is not going to steal audience from any pop-star concert. The audience consists exclusively of adoring parents, musical teachers, and assistants. Nobody is going to get rich stealing footage from these concerts. Do those music industry executive seriously think that people are going to sell these recordings? Is it going to hurt them in any realistic way? Yet for Mike, this is a serious affront. His kids have been working all season long on this show. They have attended half a dozen competitions, each time getting a little better, a little more in sync, a little more polished. This final concert is the ultimate conclusion of a season’s work. Those kids have never played better, but I can’t actually show you. “No Video Cameras Allowed!”

The law is on the side of the music industry: copyright owners have been given by the government exclusive right to control performance, mechanical reproduction, and synchronization of music. Fifty years ago mechanical reproduction and synchronization was something that only the most accomplished musicians had access to. But today the typical child carries such capabilities in their pocket cell phone and the law is an anachronism which is abused. Such a recording might be considered fair use, but the burden of proof is on the defendant, and the resulting chilling effect is the banning of video cameras at high school band events.

The irony is that Mike is not making a video tape because he wants a copy of the music. The Band might be playing Beethoven; it is not his objective to get a copy of the Beethoven piece. Instead, his objective is to capture the experience of the band performance, the actions of the kids. This experience belongs to the audience. The music is, in some sense, incidental. Like the video of the birthday party: the purpose is to capture the event, and not to steal another recording of “Happy Birthday”. The current law make no distinction as to the purpose of the recording.

A typical high school band will spend thousand of dollars licensing music for the kids to play. This is valuable and legitimate so children can learn to play. But the terms of this license border on the bizarre. Music licensed to high school bands is not automatically licensed for “mechanical reproduction”! What are these people thinking? When you license music to a senior or junior high school band, you can be sure that parents want to videotape their own children.  Getting a mechanical reproduction license requires significant additional trouble of estimating how many minutes of video tape are going to be recorded, and license at a a few cents per minute of recording! Few schools, already strapped for money and volunteers, can afford this or have the manpower to follow up on this. They are forced into the only alternative: ban camcorders at the concerts.

Clearly professional bands performing for a fee owe a portion of what they make to the writers of the music. High school bands are not professional. These are music students, and the performance is essentially a final exam. But don’t let Mom or Dad make a recording of this, because that might be stealing profits from ASCAP or BMI.

The Music industry has simply gone too far, and bans the use of certain songs at events. Reading the band competition site is sad and poignant: “In some cases, the [banned] songs listed above were included because the copyright owner has already advised Bands of America that they are not willing to grant video synchronization rights for marching band videos” Apparently “God Bless America” is not allowed by the owners to to be used in a band concert. Walt Disney will not allow any music from a current release. Don’t even think of playing a James Bond theme. There are many more specific publishing companies that refuse to let school bands play their music, but I don’t want to give them free publicity here. Makes me wonder: what are they afraid of? “They’re protecting an archaic industry,” said the Grateful Dead’s Bob Weir.

The local high school band does not have much money, but still diligently licenses all music. That is why they are concerned when they are told they can not make a “mechanical recording” of their legitimately licensed music. When the company sells music to a school band with 150 students, you have to expect that there will be between 150 and 300 parents in the audience wanting to video tape it. This is just common sense. Allowance for this should be part of the deal.

I have no sympathy for fat-cat music executives who sell music to a high school band, and then turn around and invoke a special clause that prevent parents from videotaping their children in the final concert. How sad it is that the music industry is so money grubbing that it feels that your home videos of little Tom and Nicole are a threat to it. As Americans we should change this anachronistic law. As long as we are not selling the recording for profit, we should fight for the right to record, photo, videotape any public performance by family members, friends, and community members. These recordings capture our experiences to which the music is just a backdrop. Our memories should not be copyrighted.

• Bands of America – Copyright Guide
• Mechanical Reproduction Rights Primer
• BOA Participant Requirements
• RIAA vs. The People
• The Promise of a Post-Copyright World
• Stanford Fair-Use Center

What can you do? Write your congressman. Promote a law that allows music performed by a student group to be recorded and used for any non-commercial use. Call it the “Freedom to Videotape” law. Or perhaps it should be an amendment to the constitution to give us the “Right to Royalty-Free Memories”.