Steinberg Photo wrote:
I shot video of a concert with my DSLR recently. I had permission of the artist to shoot the video and post it on Youtube.

Nothing is that easy. The artist may hold the performance copyright and you may own the copyright to the recording, but the song copyright, unless the artist composed the music and wrote the lyrics himself, is totally different from those.

It can even get more complicated ...

Steinberg Photo wrote:
This is informative.  I should have noted that the musician I videoed performing the song is also the composer of both the music and lyrics.

In which case he can give you consent to post the video.  You should point that out to YouTube.

Raoul Isidro Images wrote:
Since the Viacom fiasco, YouTube has implemented robotic guidelines en masse to protect itself from further litigation of third party issues.

Music, even soundtrack, and voices, are now copyright enabled.

An extreme example:

A YouTube channel took videos of "Idol" fireworks of the musical finals and posted it for monetization. (To earn a few cents per view from the posted video)

It was flagged, put down, and demerit points slapped on the channel.

While it was OK to post it as a personal movie, once he started earning money out of the footage, those responsible and who paid up for the fireworks wanted a share...

It's all about money, and the potential of it.

.

No Youtube money involved here. I'm just trying to get my question in my original post answered.

GPS Studio Services wrote:

In which case he can give you consent to post the video.  You should point that out to YouTube.

As far as I can tell, the issue is not with Youtube exactly, but with the Rights Management company. Although Youtube may be acting on their behalf.

I was hoping to find someone who has been in this same situation and can tell me what they did and if that resolved it.

Leonard Gee Photography wrote:

Nothing is that easy. The artist may hold the performance copyright and you may own the copyright to the recording, but the song copyright, unless the artist composed the music and wrote the lyrics himself, is totally different from those.

It can even get more complicated ...

There's no such thing as a performance copyright.

Steinberg Photo wrote:

As far as I can tell, the issue is not with Youtube exactly, but with the Rights Management company. Although Youtube may be acting on their behalf.

I was hoping to find someone who has been in this same situation and can tell me what they did and if that resolved it.

I've just put stuff up.

In all of the cases where the masters are owned by a label, both indie and major an option to buy the song on iTunes was automatically added at some point. In a few cases the videos can't be played in certain countries.

Steinberg Photo wrote:
This is informative.  I should have noted that the musician I videoed performing the song is also the composer of both the music and lyrics.

While that may be true, he may not be the copyright holder anymore, since Youtube recognized the song, and knew it was copyrighted by "someone".  What you need to do is acknowledge that you do not own the copyright to the song, and that no copyright violation is intended.

MC Photo wrote:
There's no such thing as a performance copyright.

Not well understood or widely known, but, in the US [and elsewhere] if a performance is fixed and once it is fixed [recorded, filmed, or otherwise preserved in time] then, yes, there may very well be a performance copyright which should probably be better, and correctly, set out as being "A COPYRIGHT IN THAT PARTICULAR PERFORMANCE". This class of performer rights is known in copyright law variously as "related rights" or "neighbouring rights" and can be protected internationally under a number of treaties BY THE PERFORMER.   

This is an interesting, and can be a complex, area of copyright law because in the OP's case, as an example, the OP will own the rights [copyright] to the actual recording made, because they are the author of that physical embodiment of the performance, but the performer will control a suite of rights concerned with the performer's own actual creative expression [dramatic, dance, music, ect] that is the content of, and contained within, the recording though not the recording in and of itself.

As pointed out earlier there may also be still deeper underlying rights held by others than the performer. The performer might be infringing those rights or exceeding any pre-existing license they might have, in which case the recording containing the expression of the performance, made with or without the performer's consent, would also likely be suspect of infringement, though, as in the OP's case they, themselves, are not the infringer the performer could be. The underlying rights holder(s) are perfectly within their rights to suppress the unauthorised distribution of material to which they properly hold the copyright.

This is happening a lot on such as YouTube because someone will post what they think is theirs and it turns out that, however innocently they might have done so, it is not really theirs to post on the Internet or otherwise distribute. There are genuine exceptions in "fair use" but a lot of claims of "fair use" would never stand up against a determined claim by a copyright owner that there is an infringement.

In modern practice, as a practical matter, and where the Internet in involved, the very first expression of such a claim is a DMCA notice to the web host which serves to have the allegedly infringing material removed from obvious distribution while at the same time placing the alleged infringer [innocent or not] on notice. These are not the primary purposes of that part of copyright law [§512] but they are the practical secondary effects of it.

Studio36

Steinberg Photo wrote:
I'm just trying to get my question in my original post answered.

good luck with that one lol.. this place cracks me up lol

If youtube is a must for you then why dont you send an email to their customer service reps or moderators what ever you want to call them.. im sure a company such as youtube has a contact point after jumping a few hurdles then await the reply to your questions

explain you have the permission as the copy right holder for your VT work

you also have the acknowledgement by the artist and his/her permission to post on youtube so you want youtube to explain how you can upload and play the video without the issues your experiencing

as for my experiences with you tube its a huge turn off having the amount of advertising thrown at you and having to skip adverts before seeing content never mind putting my own stuff up there.. my advice would be to join VIMEO ..

SoCo n Lime wrote:
good luck with that one lol.. this place cracks me up lol

If youtube is a must for you then why dont you send an email to their customer service reps or moderators what ever you want to call them.. im sure a company such as youtube has a contact point after jumping a few hurdles then await the reply to your questions

explain you have the permission as the copy right holder for your VT work

you also have the acknowledgement by the artist and his/her permission to post on youtube so you want youtube to explain how you can upload and play the video without the issues your experiencing

as for my experiences with you tube its a huge turn off having the amount of advertising thrown at you and having to skip adverts before seeing content never mind putting my own stuff up there.. my advice would be to join VIMEO ..

Here's the most direct answer to the OP's question. It can't be any simpler. There are THREE choices here with some brief notes on each:

Choice 1- DO NOTHING

Do nothing and the video [or in some cases only the audio] will be removed by YouTube; They may or may not hold that against you in future. YouTube tends to, other sites not so much.

or

Choice 2- ACKNOWLEDGE THE INFRINGEMENT - IN EFFECT PLEAD GUILTY TO YOUTUBE

Choose to acknowledge the infringement claim and the video will be removed by YouTube, but inherently in such acknowledgement is that YouTube will consider closing your account on the next or a subsequent similar occasion, because they are REQUIRED to have a repeat offender policy that will normally produce that result;

or

Choice 3- FILE A COUNTER-NOTICE

IF, and only IF you believe that you are on sound legal ground, you can file a PROPERLY CONSTRUCTED and TIMELY counter-notice. All you need state for YouTube is that you believe that they have removed the content in error [mistake or misidentification]. You don't even have to tell them why you believe that, and it is always much better NOT to offer a DETAILED explanation**. They will put the content back where it was - - - B U T - - - the information in the counter-notice, in it's entirety including your name and address, AND, any "explanation" you might have included, is likely to be made available to the original complaining party, automatically or on request, who will then have sufficient information on your identity to sue you, or seek an interim injunction to block the restoration of the work by the host, or both, if they still believe that you are infringing them. This is a risk management question in so much as you should make a judgement call as to whether the complaining party has the resources and money, and the will, to follow through and put them where their mouth is. Much more likely in some cases than in others.

**WHY NO EXPLANATION? Whatever you say to YouTube by way of "explanation" can and will be held against you if you are sued. Keep it to the basics. e.g. "...the material was removed or disabled as a result of mistake or misidentification..." You are not going to know from the notice WHY the content was complained about only that it was. You can not then, as a practical matter, state a defence in a counter-notice without knowing that. Basically, the host [Internet service] doesn't have to know and doesn't really care and I suggest saving it for the judge.

---

Just an aside. NEVER be tempted to file a DMCA notice or counter-notice that knowingly contains false information [e.g. a made up name and / or address]. Because these notices are signed and sent under "penalty of perjury" you would be committing a criminal offence in doing so. You CAN be found and your real identity CAN be established. It will likely not go too well after that.

Studio36

Contents of a counter-notice

What Is Required to File a Counter-Notice?

The law sets up very strict guidelines for what is required in a DMCA counter-notice and they include the following:

*    A physical or electronic signature of the subscriber.

*    Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.

*    A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.

*    The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located.

*    Or, if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process [my note: even at a foreign, non-US, address] from the person who provided notification or an agent of such person.

NOTE 1: Much of this language is ripped directly from the notice provision but the important addition is the inclusion of jurisdiction for the matter, which is always a U.S. Federal court, even if the subject of the DMCA notice is located outside of the country.

Note 2: There are actually TWO very specific forms of penalty of perjury statements [unsworn declarations] depending on if the person signing such is inside or outside the US. This would apply both to the notice and the counter-notice for DMCA purposes. See: 28 USC §1746

GPS Studio Services wrote:

Steinberg Photo wrote:
This is informative.  I should have noted that the musician I videoed performing the song is also the composer of both the music and lyrics.

In which case he can give you consent to post the video.  You should point that out to YouTube.

Only, I might suggest, where the performer has not subsumed those rights to a third party e.g. under a recording contract for instance. They might, and most likely would, be able to continue to publicly perform their own works live and in person, but, at the same time not necessarily be in a position to authorise any recordings, or distribution of such recordings, of the live in person performances. In the OP's case we just do not know either way.

I can almost guess that there is nothing in writing.

Copyright matters in still photography are a walk in the park compared to motion imagery and audio.

Studio36

Loki Studio wrote:
I would first get written permission from the artist and record label that you have permission to use the music for your video and submit it to YouTube as part of your dispute.

Why are you publishing this video?  Its more common for the artist or record label to publish professional videos of their work.  Other video hosts like Vimeo are less strict about music use.

And for the complaining party serving repeated take-downs becomes a case of "Whack-a-Mole" to keep finding and taking down the stuff at different URLs especially if there is never a counter-notice returned that would identify the person ["user"] doing the posting.

Studio36

studio36uk wrote:
Here's the most direct answer to the OP's question. It can't be any simpler. There are THREE choices here with some brief notes on each:

I agree with you in the case in which someone has filed a DMCA takedown notice, but I do not believe that to be the case here.  YouTube has is just asking whether the content contains someone else's copyrighted content, which it does.

A couple years ago, I made a video highlighting specific sections of a televised NBA game.  YouTube and/or the NBA recognized this and sent a message just like the one the OP received.

I acknowledged that it was third party content and explained that I used selected excepts to make a commentary on the content.

The video is still up, and nothing negative happened to my account.  The video has an "acknowledged third party content" tag on it, which means that I am not permitted to monetize views from that video. 

Personally, I would be truthful in my response.  I would acknowledge that the song is copyrighted by a third party and state that the video was my copyright and that I had permission from the song's copyright holder to publish the video.  Chances are good that the video will stay up, but that only YouTube can profit from it directly.

Steinberg Photo wrote:
The video was "flagged" by the Youtube Content ID system...

This is important.  It's not a DMCA takedown notice.  What happens next is up to the copyright holder (or their management). 

http://www.youtube.com/t/contentid

What is Content ID?
YouTube's state-of-the-art technologies let rights owners:

-Identify user-uploaded videos comprised entirely OR partially of their content, and

-Choose, in advance, what they want to happen when those videos are found. Make money from them. Get stats on them. Or block them from YouTube altogether.

It's possible that the song's copyright holder may profit from your video.  I apologize for my previous misstatement in that regard.

Steinberg Photo wrote:
I shot video of a concert with my DSLR recently. I had permission of the artist to shoot the video and post it on Youtube.

The video was "flagged" by the Youtube Content ID system because it included a song that is copywritten, which is correct. They provide the company that manages the copyright. As I said, I have permission of the artist to publish it. What is not clear is what I am suppose to do next.

Youtube gives you two options at this point:
- "Acknowledge" it is copywritten
or
- "Dispute" it.

What is not clear is what happens next. If I Acknowledge it, will it get blocked?

Has anyone dealt with Copyright issues on Youtube before? Any help would be appreciated.

There's a lot at work going on here.

1)  The "artist" is not necessarily to copyright owner for the song.  I publish ~250 songs, and if someone performed one of my songs in a concert, I would be put out if that artist thought they had permission to post that performance on the Internet anywhere, in any form.

2)  Even if the "artist" is also the song writer & publisher (unlikely), some venues contractually retain some control of performances at their venue.


What can you do?

...  You can obtain clearances (i.e. obtain a sync license) from the song publisher.  You can do a search at any number of web sites to find the publisher (e.g. allmusic.com, ASCAP.com, BMI.com, HarryFox.com).  Contact the publisher, describe your usage and how the video will be used, and ask for an appropriate license.  Note:  if the publisher says "no", respect that.  On the other hand, as a publisher, I have been known to grant gratis licenses to students & amateurs who don't expect to earn $$$ from their usage.  On the third hand, your usage might conflict with a planned usage and may be denied.

...  Do not tell the publisher that the artist said it was okay.  That's like guy sleeping in your bed telling you that he had permission from some guy downtown.  In other words, telling the publisher that the artist granted you permission is a clear indication that you don't know anything about music copyrights.

Brian Diaz wrote:
This is important.  It's not a DMCA takedown notice.  What happens next is up to the copyright holder (or their management). 

http://www.youtube.com/t/contentid


It's possible that the song's copyright holder may profit from your video.  I apologize for my previous misstatement in that regard.

You are quite correct. The YouTube Content ID system relies on fingerprinted pre-submitted materials from the copyright owner(s) compared to user generated content, typically as it uploaded. It is unclear, however, what advance choice of action that copyright holder may have selected. I really don't see much more than a Hobsen's Choice in the two options they give - admission and they take it down; dispute it and they will likely take it down anyway. At this point you will know [certainly should know] who is making the claim if YouTube is revealing that openly. YouTube is not a court of law. They are not going to stand in the stead of one either and make a judgement on any dispute response the OP offers. The only interest that YouTube has is their own.

I suspect if the thing is disputed, that correspondence with YouTube may well be promptly communicated to the copyright owner of record and could just as well be quickly followed by a DMCA notice in any case. That is no better or no worse than, initially, doing nothing at all.

The OP could try to enter a dispute response and offer an explanation, but there are some wild cards here as I previously noted, AND, this YouTube pre-emptive procedure is not specifically described or permitted in law but arises principally from YouTube's prior experiences in court. The Content ID system is little better than an advance DMCA warning to YouTube by the copyright owner without the inconvenience of tracking their stuff down and sending specific notices each time something is found.

The ONLY way to be sure is to let them take it down and then, as the law provides, file a counter-notice.

I've taken stuff down on YouTube for clients by the hundreds and never have gotten even a single counter-notice. Not one. And YouTube allows me to consolidate claims to multiple works posted by multiple "users" into a single notice.

Studio36

studio36uk wrote:

Not well understood or widely known, but, in the US [and elsewhere] if a performance is fixed and once it is fixed [recorded, filmed, or otherwise preserved in time] then, yes, there may very well be a performance copyright which should probably be better, and correctly, set out as being "A COPYRIGHT IN THAT PARTICULAR PERFORMANCE". This class of performer rights is known in copyright law variously as "related rights" or "neighbouring rights" and can be protected internationally under a number of treaties BY THE PERFORMER.   

This is an interesting, and can be a complex, area of copyright law because in the OP's case, as an example, the OP will own the rights [copyright] to the actual recording made, because they are the author of that physical embodiment of the performance, but the performer will control a suite of rights concerned with the performer's own actual creative expression [dramatic, dance, music, ect] that is the content of, and contained within, the recording though not the recording in and of itself.

As pointed out earlier there may also be still deeper underlying rights held by others than the performer. The performer might be infringing those rights or exceeding any pre-existing license they might have, in which case the recording containing the expression of the performance, made with or without the performer's consent, would also likely be suspect of infringement, though, as in the OP's case they, themselves, are not the infringer the performer could be. The underlying rights holder(s) are perfectly within their rights to suppress the unauthorised distribution of material to which they properly hold the copyright.

This is happening a lot on such as YouTube because someone will post what they think is theirs and it turns out that, however innocently they might have done so, it is not really theirs to post on the Internet or otherwise distribute. There are genuine exceptions in "fair use" but a lot of claims of "fair use" would never stand up against a determined claim by a copyright owner that there is an infringement.

In modern practice, as a practical matter, and where the Internet in involved, the very first expression of such a claim is a DMCA notice to the web host which serves to have the allegedly infringing material removed from obvious distribution while at the same time placing the alleged infringer [innocent or not] on notice. These are not the primary purposes of that part of copyright law [§512] but they are the practical secondary effects of it.

Studio36

With music the fixed performance is the recording.

If there were a separate copyright for the performance that would have come up in the Maritime vs KRS-One case.

MC Photo wrote:
With music the fixed performance is the recording.

If there were a separate copyright for the performance that would have come up in the Maritime vs KRS-One case.

Maritime v. Parker examined only briefly and only in part whether it was the recording itself or the physical embodiment of the recording. With motion imagery incorporating images + audio of the performer in action whilst actually performing both the music AND the action of doing so, it is a different matter. In the Maritime claims only the original sound recordings were at issue because it was only the sound recordings that were later used allegedly without Maritime's license, and even then only the original [initial version of the] sound recordings were considered not the purported re-mix that supposedly existed and not the separately made and separately recorded sound recordings when mated with the video materials created at the same time. So, because only the audio elements were in dispute there is no judicial reference, save descriptive of the facts, made to the combined images + audio recordings.

That case is properly cited, BTW, as SYSTEMS XIX, INC., dba Maritime Hall
Production. Plaintiff v. L. PARKER, etc., et al., Defendants No.C97-3983 SI United States District Court, N.D. California [1997]

Part of that case however goes directly to some of the discussion above on whether Parker could authorise the recording of their performance by Maritime if they did not actually own the copyright in the works they performed, which copyrights were in fact owned by Zomba [Zomba Recording Corporation], the record company responsible for the marketing and distribution of Parker's songs. Zomba is the copyright owner of Parker's musical compositions AND recordings]:

[in part]

Defendants argue that since Zomba owned
the copyrights to Parker's musical composi-
tions, only Zomba could grant Maritime a
license to use the compositions. Defend-
ants contend that Maritime has presented
evidence of an implied license based only
on the conduct of Powell and Parker, and
not of Zomba.

[3] The Court finds that whether Maritime
had an implied license to use Parker's mu-
sical compositions based on the conduct of
Zomba or its agents is a question of fact
that cannot be resolved on summary judg-
ment. It is true that Zomba owns the copy-
right to Parker's musical compositions.
Zomba, however, also vested Parker with
the authority to perform those composi-
tions at Maritime's venue. At the venue,
Parker requested that Maritime record his
musical compositions. Since Parker states
that he “customarily” records his own per-
formances, it should have come as no sur-
prise to Zomba that Parker asked Maritime
to record the concert. Parker Decl. ¶ 9.

From these facts, a jury could reasonably
conclude that Parker, vested with Zomba's
authority to perform the copyrighted com-
positions, acted as Zomba's agent when he
requested Maritime to record the concert.

In light of Zomba's later acceptance and
commercial exploitation of the sound re-
cordings, it is a question of fact whether
Parker's request to record the performance
constituted an implied license for Maritime
to use the underlying compositions to pro-
duce the sound recording.

That is exactly what we are asking above. And what we do not know. Did the performer who the OP filmed have the requisite authority to authorise the recordings that the OP made?

I might argue that they did in so far as their personal expressive conduct in the delivery of the underlying musical compositions [the "performance" element] but possibly not in the underlying musical compositions themselves... which, the audio part, is the very thing likely being flagged up by YouTube.

Studio36

EDIT:  Oh, BTW

This Maritime v. Parker case is interesting because of the step-by-step tactics used by the Maritime's lawyers to back Parker and Zomba into a corner ---

1st argument by Maritime: This was a work made for hire Maritime being the hiree. Nope said the judge - but they knew that, but made it part of the record.

2nd argument by Maritime: This was a work of joint authorship Nope said the judge - well, they knew that too, and made that part of the record as well.

But, lastly and importantly, was there an infringement of Zomba's copyright by either Parker or, through Parker by Maritime?

3rd argument by Maritime - Parker was authorised by Zomba to both perform and record his own work though Zomba owned the copyright to it - [Parker customarily made recordings of his performances and was authorised by Zomba to do so] - thus when Parker further authorised Maritime to create both the sound and visual recording of his performance, Parker had the requisite authority from Zomba, the copyright owner, to either do so himself or have someone else do it for him. Parker was, in fact, acting as an agent of Zomba in granting the authority to Maritime. Ergo, the copies that Maritime made of material that was Zomba's copyright were lawfully authorised copies = Maritime is the sole owner of those particular copies and owned the copyright to those particular copies though not the underlying copyrighted material - the musical compositions and lyrics [see: 1st and 2nd arguments above. They were NOT works made for hire and NOT works of joint authorship]

4th Maritime further, successfully, argued that the very essence of, and the value in, their recordings was what was on them, the representation of the Parker performance of which Maritime was the author, not the physical medium. The former being the intellectual property element the latter, the physical tapes themselves, being merely a chattel.

This is exactly where Maritime needed to go with their case and to establish who, exactly, had an interest, both copyrightable and economic, in Maritime's particular recordings of Parker's particular performance on the night, if anyone else did. Nope! They were NOT works made for hire and NOT works of joint authorship AND they WERE authorised by Parker acting as Zomba's agent, in spite of Zomba not being specifically aware that Parker had done so. Any intellectual property and economic value in those recordings depended wholly on what was recorded on the physical recording medium not the physical recording medium itself. Then - - -

5th Next - Did Parker and Zomba have access to Maritime's work? Yes. They admitted that. A technical point in infringement cases. then - - -

5th When some of the Maritime created sound recordings were apparently later used by Parker / Zomba without Maritime's license or a production credit, Parker and Zomba were infringing Maritime's work [the authorised copies, authored by Maritime], and THAT EXACTLY WAS THE ISSUE that was in dispute.

The claims were settled by Parker / Zomba without further litigation.

---

QOTD

"A fronte praecipitium a tergo lupi"