YouTube/Legal question

[Marcos]

I'm in a band, there are videos of us on YouTube recorded by others (badly) at local gigs, can I request to take the videos down?

Anyone know about this kind of thing?

[technodean]

I don't know about taking the videos down as they either paid or filmed in public. But if someone uses your song to make money by views and you have copyrighted your music you can make a claim the money they made. I watched a markeedragon video in which he had his money taken off him for a video because someone had the copy right to the ice cream van's music playing in the distance http://www.youtube.com/watch?v=9ZsLcoZ4yRs

[HalloweenJack]

was the event a `private` gig - eg they bought tickets or was it open at a pub when anyone could walk in? if its the first you do have a case for a removal , if the second its a lot tougher.

[peterb]

Caveat - I am not a lawyer - this is only unqualified opinion

Do you (or a band member) own the copyright to the material you played? If not, did you have performing rights for the performance?

If you own the copyright, I believe you can ask for it to be taken down (although the publicity might be good). If you were performing with someone else's materially (legally) then you may want to talk to the copyright holder, or their agent, or whoever you obtained performing rights from.

If you were performing copyright material without permission, you are on dodgy ground anyway.

[IronWarrior]

Why do you want it taken down? Don't you want others to see and hear your band and music?

Personally, I wouldn't listen or watch a crap video, but you just kicking yourself. Also once it's on the Internet, it's on the Internet. The video can easy be uploaded again and again.

[csgohan4]

Psy wouldn't be famous without Youtube

[tallship]

I can't actually speak authoritatively for the youtube stuff, but regarding copyright, I might be able to shed some light on the issue, considering that in a former life I was a copyright administrator for Virgin Music. In fact, my charge was the entire Metal Blade records catalog, Paula Abdul, Janet Jackson, Michael Jackson (an administrative contract where we only took 15%), Ozzy Osbourne, and Nirvana, to name a few

Anyway, if you are the creator of the work you are the copyright holder. In theory, you are protected, but then again, you would have to be able to prove it. One method that can work on a shoestring budget is a certified letter, unopened, mailed to yourself with a tape or CD inside of your songs. Another is lots of witnesses who will swear out affidavits.

Of course, the standard and preferred method is to actually copyright your works with the US Govt. (If you're in the states). There are two forms for this, and most artists who don't have adequate exposure to the business end of the music world almost always use the wrong form.

The two forms are:

• Form SR
• Form PA

The SR is for a sound recording and does the artist no good at all - it is for the actual recording as it is fixed for mechanical purposes, i.e., a song on a single or as part of an album. This is what the record company files with the US Govt as a copyrighted work (and yes, it is copyright, as in a *right* of yours, not *write* - so never say copywritten because that means nothing).

The record company copyrights the actual recording of your song, thereby being able to enforce the collection of royalties whenever that *particular* recording of your song is played on the air.

The form PA is the one that you, as the *publisher*, or your publisher files with the Copyright office. You need to file one form PA for *EACH* song. I know it looks like you can copyright a bunch of songs on a single Form PA but this is WRONG! That is for classical works like, say, Mozart's 23rd Piano Concerto where there are several movements within the same work (volume).

If you put a bunch of songs on a single Form PA then Divide the statutory rate by the number of songs - i.e., ten songs, you get one tenth of what you should. Get it?

You copyright as "Words and Music" on the form PA. If you've got bucks, then you have a musicologist chart it all out and include that with the Form PA when you file, if not, then that's still okay, because most rock music simply attaches a CD or tape of the song. This can be a rough garage recording - you're only protecting the artwork that you are creating, and someone else (maybe you or your record company) will file a Form SR each time you come out of the studio with a slightly different and "fixed" version/arrangement of the song itself.

The upside of filing the Form PA is that you really have no legal basis for exacting your performance rights royalties, grand rights, or anything else until you do - so the letter to yourself doesn't really give you an avenue for actually collecting what is rightfully yours, but the Form PA does

The downside of filing the Form PA is that until you file the form, it hasn't officially been published, so no one really has the right to perform or record it. That is an important distinction in case you're one of those idiots who believes that your music should only be played or heard by you.

Once you file the Form PA and the govt records it as such, your song is now "Published", meaning that henceforth, ANYONE who performs your song in public, records it, etc., MUST PAY YOU ROYALTIES, and you now have the power to collect. Prior to publishing, you still own the copyright (in theory, but legally), but you have no real mechanism to enforce the collection of royalties.

Also, once published, you cannot stop anyone from performing your creation publicly, or recording their version (and they'll get their own SR copyright for the version they recorded), and selling it on their albums.

That's what you want (and if you don't then don't file a form PA or let anyone hear your music, coz your a dik anyway).

Now, how do you collect your money???

1.) File the form PA and wait until you get the acknowledgement back from the Govt that it has been registered with the copyright office.

2.) Join ASCAP, BMI, or SOCAN (I prefer BMI, and you can do this online)

3.) establish a relationship with the "Harry Fox Agency" (They are the auditors who collect the royalties for mechancials, i.e., the CDs you pressed and are being sold).

What does BMI do? BMI is a Performance Rights Society that collects royalties for performances - i.e., Jukebox and live music. Clubs that book cover bands must pay ASCAP and BMI and SOCAN money in order to do so. Bars that have juke boxes must pay too.

If you're playing your own music that has been published, then it is treated the same as any other cover music (SOCAN actually has a registration calendar for their artists so they can tell SOCAN when and where they are playing their *PUBLISHED* (Form PA) music. SOCAN then goes and collects the royalties from these small little bars and nightclubs and ice-skating rinks that thought that they could get you to play for free and pay no one anything.

Bottom line, if your songs are officially published, then anytime they are played by anyone, you are entitled to money! Most Bar owners would like to rip you off anyway, and SOCAN makes them pay if you log the performance

ASCAP is the biggest, and good for mega artists. BMI is great too, but somewhat more accessable for smaller artists. SOCAN is highly selective and also works to assist in the development of their artists, somewhat like a publisher.

Now, if you've published your works, then anyone can record it, sell their recordings of your songs, and anyone can play them. Yes, you are entitled to money when that happens.

If Cannibal Corpse decides to record a song you wrote and published and put it on an album of theirs, there is nothing you can do to stop it, because It has been published. Cannibal Corpse will file a Form SR for their version of your song to protect them by copyrighting their recording.

Cannibal Corpse's publisher must pay your publisher (Harry Fox Agency collects this money for your publisher) a statutory rate established by federal law and under the Berne Convention for EACH CD they sell. This is what we call mechanical royalties. But no one does this, unless you object to them putting your song on their album.

What happens in practice, is that Cannibal Corpse's publisher contacts your publisher (this may be you, if you are self-publishing, by the way), and requests a "Mechanical License", which your publisher will grant at say, 70% of *stat* (the statutory rate established by law).

So let's say that the statutory rate is 10 cents per 5 minute song. your publisher would get paid 7 cents for every Cannibal Corpse album sold that has your song on it. Pretty kewl huh?

Of course you could be a dik and say, "No one can use my music". And they could do it anyway, and just pay you stat.

But what about the Beatles and all that talk about how they hated the fact that Michael Jackson let Nike use their songs in sportswear commercials? Ah... That is different

Now we're not talking about someone else recording Helter Skelter and playing it on a commercial (Where BMI collects and pays you for the performance of your works). We're talking about Nike using the actual sound recording (Form SR) of the Beatles themselves - A publisher or record company can stop this dead in it's tracks. Unless the publisher/record company says it is okay to use that particular version of a work, then it is illegal to do so. But M.C. Hammer could record Helter Skelter, and his record company could give Nike permission to use his version in their commercial.

See how that works?

That might be as clear as mud, so I won't even begin to try and explain how the artist vs publishers share works, and why the law splits it into two equal halves. Let's just suffice it to say that if you get a publishing contract there are two things to pay attention to:

1.) Get as big an advance as you can. Publishers pay out a pittance to you as the artist in the form of an advance, file the Form PA, taking half of the money (or more if you get ripped off) and find record companies to record (with the publishers money) your song, who files the Form SR, and never tries to sell your record.

Huh? lolwut? wtf?

Here's how we used to do it at Virgin.

We would give Brian Slagel (the owner of Metal Blade Records) say, a million bucks a year to find and sign bands and sign those bands to single song contracts and pay the bands their advances and press a few albums. If the bands became famous by some great miracle, then everyone was happy.

Virgin by virtue of contract with Metal Blade, owned all of the publishing (the Form PA). Metal Blade still owned [most of] the actual recordings (the Form SR). A single song contract is a crummy contract where almost all publishing is relinquished by the artist to the publisher...

Virgin would sell the songs to the film industry for use in feature films for millions of dollars, and the artists would get nada. The *Grand Rights* were controlled by Virgin, and almost, if not all of the publishing too. The band would only get money on the mechanical royalties (the sale of actual Records, i.e., CD sales), and concerts they actually played (from ticket sales). Since the bands signed over their publishing rights, they didn't get any money from the airplay (performance) on radio stations either.

Most bands are preoccupied with their recordings, but the money, and the power, is in the publishing. Yet under law, the artist can only collect 50% of that money, which is called the "Artists Share". Only a publisher can collect the other 50% percent - the "Publishers Share". These poor bands were signing over their very own artists share to the record company (Metal Blade), who had already signed that over to the publisher (Virgin), who made all the money.

Metal Blade, and other small record companies got paid well for this - all perfectly legal. The bands were just happy to have a record deal which provided them with an advance and the pressing of a few thousand records which might very well never sell, while the big money went to the publisher for selling the music as part of a movie soundtrack LOL!

Now, I've just explained the norm for what is called a "Single Song Publishing Contract". It was even worse back in the MoTown days, where many of the artists didn't even have any writers credit.

The "Good" contract, is called a Co-pub agreement. typically a 50% Co-publishing agreement, where the publisher collects their 50% and the artist collects their 50%. And the bigger advance you get, means the harder the publisher has to work to recoup their money, so they'll spend lots of money making you a success. In a single song contract, there's no incentive for the publisher to spend any more money to make you a success.

The third type of contract is for mega artists, those who can command sell out concerts and platinum CD sales - people like Michael Jackson, as I pointed out above. In this scenario, the artist could very well be their own publisher (and you can too), but instead of being bothered with the salary of the employees to administer such an undertaking, they opt instead to *allow* one of the publishing companies who comes begging to them for the right to be their publisher for typically a mere 15% (i.e., the artist gets 85% of ALL the royalties). So the artist get's their 50% under law, and the publisher signs away to the artist 35% of the publishers share LOL!

How can you protect yourself?

1.) Be your own publisher. think up a name for your publisher (if your band is called chickensau, then it might be Chickensau Music, Inc. BMI). If some of the members in your band are with ASCAP, then you form a second entity called Chickensau Songs, Inc. ASCAP - but let's keep it simple, and assume that all of the band members that have writers credit are affiliated with the same performance rights society okay?).

2.) Now you, as the artist who writes your own songs signs a contract with the publishing company you own for a 50% Co-pub deal, thereby locking in the protection of your 50% artists share of the royalties. Then you shop for a publisher and/or record company, and when they slide the contracts toward you, you tell them you already have a publisher (a shell company that is in fact you). They say, "Oh, fine, we'll deal with your publisher then.", and you say, "Kewl, no problem.", and you sell them either your publishing company in it's entirety or sign over all of the publishing rights that company has for your material.

This way you get what you are entitled to under law, and in full. The only thing left is to negotiate the advance, and how hard the publisher is going to work to ensure that they find you a recording contract! You can hire an entertainment attorney to set all of this up for you if you like, but it's not neccessary - even though you really should have an entertainment attorney negotiate these details with the publisher once you get their interest - it's just not a good idea for you to represent yourself in business meetings.

If you're lucky enough to be accepted by SOCAN, then they really will work with you and watch your back. They're very good at developing their artists, whereas BMI and ASCAP are just too big to put that effort into every Tom/Dick/Harry band.

One more thing that I would like to mention. There's nothing wrong with giving away portions of the artists share of your copyrights - it's up to you to decide. But if a publisher is really interested in developing and selling you to the record companies then they're prolly going to come at you with a co-pub deal anyway. After all, the more successful you are, the more money they make, and in the long run......... years down the road....... the artists share of your publishing is what your income is going to be based on.

Here's a sad one. The Beach Boys did all of their own publishing, and made good money, but their father controlled their publishing company. When he was presented with a foshizzleload of money for the publishing (including their artists share of 50%), he sold it off for what he figured was retirement money for him and his boys - bad bad bad move. He had not enough faith in his sons and the appeal which would drive all sorts of sales of their music in the coming years - money they never got, and they also lost complete control over how their recordings would be used in the years to come. Sad story - but true. Millions and millions of dollars, like sand, sifted between the fingers of their hands.

oopsies... There's a 15000 character limit...

[tallship]

.... tl;dr continued.....


So here's the moral of your youtube story (Unless you just want it pulled down coz it really sucks and you don't want anyone to ever see it). Set up all of your publishing properly, file a separate Form PA with the copyright office for "words and music" for each one of your songs, a hundred bucks sets up a fictitious business name for your very own publishing company, and sign on with that company for a 50% co-publishing agreement. If you get popular, then you will get a professional recording and distribution deal with a record company, and at that time find a publisher to sell your own publishing company to, or all of the rights of your publishing company to (or find that publisher first who will shop you for a record deal - it can happen either way).

When you see your music videos on VH1, MTV, and hear your songs on the radio, YouTube will have to pay money to ASCAP or BMI everytime your stuff is played, and that PRS (performance rights society) will pay your publisher, who collects not only their share to recoup the money they spent to make you famous, but your money too! Harry Fox Agency will audit the record companies for album sales, collect that money and pay your publisher, who again, will pay you for the mechanical licenses, and if you're smart like Gene Simmons, your management will negotiate on the ticket sales for your concerts as well as the merchandizing on the bobbleheads people buy that look like you.

I hope that helps

Kindest regards,

.

[Saracen]

I'm in a band, there are videos of us on YouTube recorded by others (badly) at local gigs, can I request to take the videos down?

Anyone know about this kind of thing?

Can you request it's taken down? Of course you can.

Can you force removal? A different question.

The answer is .... very possibly. If it's covered by copyright and you own it, then in theory, yes, you can.

Certainly, there are provisions to protect "qualified" performances from illicit recordings, and if you are a "qualifying" individual or person, you may well have them.

But, on a pragmatic level, can you afford to fight it in a court? Probably not.

So, what it really comes down to is whether, if you ask Youtube to take it down, will they? I've no idea, but if you notify them that it is a copyright-protected work and that you are the rights owner, I would think there's a very good chance they will.

[Saracen]

Great posts, tallship. Thank you for those. They are very interesting.

I would just point out, though, the poster, Marcos, is in the UK. While a lot of copyright stuff here is similar, it's not all the same. And of course, the international aspects add a huge layer of complexity and cost to any legal matters.

[Marcos]

Caveat - I am not a lawyer - this is only unqualified opinion

Do you (or a band member) own the copyright to the material you played? If not, did you have performing rights for the performance?

If you own the copyright, I believe you can ask for it to be taken down (although the publicity might be good). If you were performing with someone else's materially (legally) then you may want to talk to the copyright holder, or their agent, or whoever you obtained performing rights from.

If you were performing copyright material without permission, you are on dodgy ground anyway.

All original content, write our own music. We've 'reported' one video to youtube to see how it goes

[Marcos]

Why do you want it taken down? Don't you want others to see and hear your band and music?

Personally, I wouldn't listen or watch a crap video, but you just kicking yourself. Also once it's on the Internet, it's on the Internet. The video can easy be uploaded again and again.

Its mostly that the videos are a couple of years old when we had a different band member and the quality of recordings is poor so we'd rather people didn't see them when looking for us. I understand the publicity argument, but trying to get a fresh start/new image.

[directhex]

Psy wouldn't be famous without Youtube

Psy's trick was not to pursue a single copyright claim against anyone. Most of Gangnam Style's success comes from "unauthorized" mixes, mashes, etc. Endless Gangnam, and Gangnam Style Without Music are brilliant works of adaptive art - and they only serve to make the original more popular

[tallship]

Hey Thanks @Saracen!

I work in the IT field now but the opportunity presented itself to impart some wisdom that I had gained years before when I was both a starving artist who was fortunate enough to actually get employment in the industry. I'm glad that I prefaced my posts with the fact that I'm here in the states because I'm sure that there are some differences, although the gist of it, under the Berne convention, is subject to the same type of framework.

I also want to make sure it's clear that Virgin was always above board, and was in the habit of drafting co-pub deals with our own artists, and zealously promoting them. Sadly, had the artists actually come to us instead of a small record company, their outlooks would have been much brighter. An irony that probably still continues to this day in the industry.

In todays world, I would wholeheartedly recommend CDbaby to artists for distribution and above all knowledge - there's a wealth of information in Derek's blogs there. There's a lot more awareness nowadays over what we had back when I often lived in a stinky road van with a bunch of other musicians and roadies LOL!

On another note, I dunno if I'll ever hit the 500 post mark here for my avatar, but I'm always happy to help out where I can

Kindest regards,

[Saracen]

....

On another note, I dunno if I'll ever hit the 500 post mark here for my avatar, but I'm always happy to help out where I can

....

Ah, yeah. I remember thinking that. But this place can be addictive. Don't say you weren't warned.

[peterb]

Hi tallship, welcome to HEXUS, and a great post (of Saracenesque proportions! )

I guess (and it is a guess) that there are similar mechanisms in the UK, there are certainly Performing Rights organisations.

To marcos,

good luck with the request (and the band) - let us know how you get on (on both subjects!)