*Kari Martiniano
In a world where the COVID-19 pandemic has halted nearly all large gatherings, many industries have had to drastically change the ways they function.[1] In particular, the music industry was required to cease nearly all live performances, which is a main source of income for a majority of artists.[2] What constitutes a live performance can range from a small show at a bar to a large show at an arena or stadium.[3]
I. The Rise of Livestreaming
Due to the lack of venues, artists have embraced new forms of performance to share their music and talent with fans.[4] Many artists are utilizing social media to post videos of covers and original songs or to perform in a live internet broadcast from a private venue, known as a livestream.[5] While artists are performing on livestreams, viewers can watch the performance in real time; additionally, viewers can often watch a recording of the performance after it is complete.[6] These performances are streamed from various social media platforms such as Facebook and Instagram.[7] Since the performances are a mixture of live and recorded videos, there is a considerable amount of ambiguity as to which copyright laws apply to these streams.[8] Artists performing an original work on livestreaming platforms are not at risk of copyright violations, but it is a different story for those performing songs originally made by artists, known as “cover songs.”[9] The laws that apply when a recording of a cover song is posted to one’s social media account(s) are drastically different from the laws involved when an artist performs a cover song during a live performance.[10
II. How Artists Can Avoid Copyright Infringements
To avoid copyright infringement, an artist performing a song that is not their own in a public performance needs to acquire a public performance license.[11] This requires performing artists to gain permission before performing the work, which ensures the owner(s) of the copyrighted work are fairly compensated.[12] Many social media platforms are already licensed by Performing Rights Organizations; if the platform is not licensed, then the artist must request a license from the owner of the copyright.[13] Performing Rights Organizations—e.g. Broadcast Music Inc., American Society of Composers, and Authors and Publishers—are responsible for obtaining and granting a large portion of performance licenses.[14] When an artist intends to post a recording of a performance, stricter copyright laws apply which require the artist to gain a statutory mechanical license from the owner of the copyright.[15]
Following the Supreme Court’s decision in ABC, Inc. v. Aereo, Inc., livestreaming is deemed a live performance.[16] While the performance is considered live, the artists keeping the video recording of their live performance on their streaming cite of choice is a question of copyright law and requires appropriate recording licenses.[17] The audio in a recorded performance is regulated through mechanical licenses, which are most often gained through the same performing rights organizations that grant performance licenses.[18] The video recording of a live performance requires a different license known as a synchronization license.[19] Synchronization licenses require artists to contact the publisher directly to request the license.[20] At this point in time, there are no national government regulations that monitor synchronization licenses.[21] Since there is no governmental regulation, the ability to obtain these licenses is left completely to the discretion of the various publishers of the work.[22]
III. Where Copyright Law is Lacking
The COVID-19 pandemic has halted nearly all live music performances for the foreseeable future.[23] While many view this issue as it relates to large performers—e.g., Ariana Grande and Drake—the halt of live concerts significantly affects small-time performers who profit from performing cover songs and originals at bars or restaurants on a regular basis as well.[24] These small level artists, along with well-known artists, are utilizing livestream performances as a source of income and a chance to showcase their talents.[25] It may be easy for large scale artists to gain access to synchronization licenses, but it is much harder for small level artists to receive permission directly from the publishers.[26]
Many small level artists still perform and post recordings of their performances without obtaining synchronization licenses, but they are infringing upon the copyrights of the owners of music being played or performed.[27]
The United States Congress needs to expand current copyright laws regarding live performances to include governmental regulations on how artists can obtain synchronization licenses.[28] The current disparity between synchronization licenses and performance licenses has resulted in many artists violating copyright laws simply because their streaming platform has saved and posted their performance.[29] Performing artists can monetize video recordings through views and advertisements that exist before, during, and after their livestreaming performances.[30] Each time an artist receives money from a copyright violation, there is an increased likelihood that legal action will ensue.[31] The United States must improve the regulatory scheme for licenses surrounding livestreams and recordings to prevent mass litigation and financial loss for performing artists and copyright owners.[32]
COVID-19 has changed the lives of performing musicians and the increase in livestreaming performances will likely continue to grow.[33] To accommodate these changes, the United States must adapt copyright laws to better protect performing artists and copyright owners moving forward.
*Kari Martiniano is a second-year student at the University of Baltimore where she is a Staff Editor for Law Review. Kari spent her summer working for as a law clerk for a boutique Family Law Firm in Ellicott City and currently works as a law clerk for the Staples Law Group in Annapolis.
[1] See Keith Jopling, Are Livestreams Now Music’s Primary Format and Artist Revenue Stream?,HypeBot (Aug. 11, 2020), https://www.hypebot.com/hypebot/2020/08/are-livestreams-now-musics-primary-format-and-artist-revenue-stream-keith-jopling.html.
[3] See id.
[4] See Ashley King, Move Over, Twitch – Musicians Can Now Charge for Facebook Live Events, Digit. Music News (Aug. 17, 2020), https://www.digitalmusicnews.com/2020/08/17/facebook-live-events-musicians/.
[5] See Jopling, supra.
[6] See id.
[7] Tal Dickstein & Nathalie Russell, Social Distance and Livestreams: Protecting Music Copyright, Law360 (April 9, 2020, 2:51 PM), https://law360.com/articles/1260959/social-distance-and-livestreams-protecting-music-copyright.
[9] See id.
[10] See id.
[15] Id.
[16] See id.; American Broadcasting Companies, Inc. v. Aereo, Inc., 573 U.S. 431 (2014).
[17] See Dickstein & Russell, supra.
[21] Id.
[23] See Corey Irwin, Covid-19’s Effect on the Music Industry, Six Months In,Ultimate Classic Rock (Aug. 28, 2020), https://ultimateclassicrock.com/covid-19-music-industry-six-months/.
[26] See Edward Klaris, Coronavirus Drove a Boom in Virtual Content; To Protect Artists, Copyright Law Must Catch Up, L.A. Times (June 29, 2020, 5:00 AM), https://www.latimes.com/entertainment-arts/business/story/2020-06-29/coronavirus-virtual-content-events-copyright-law.
[28] See Dickstein & Russell, supra; see also Klaris, supra (highlighting the complexities in obtaining synchronization licenses and the need for a change in order to strike a balance between protecting intellectual property and making synchronization licenses more obtainable for individuals posting multimedia streams).
[29] See Dickstein & Russell, supra.
[30] See King, supra (Another popular way of monetizing livestream performance is by charging an entrance fee.).
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