I just got a somewhat infuriating email from a member of a band I used play with, before leaving on unfriendly terms.
So here’s the thing: I recently joined up with a startup as a kind of mentor for amateur rock musicians. On my bio section of the webpage as an audio example of my playing I used a 2 min clip of a guitar solo which I took from a recording of a concert I gave with this band from a few years ago. Incidentally, this section is pretty much entirely improvised so infringing on the rights of a composer is not an issue. But the email I received from the ex-band member states that since he played on it, using this material this way without express written permission is forbidden, on the basis that it’s being used to sell something.
The clip itself is not for sale. It’s simply a sample of my playing as part of a bio. (You can hear it here. Scroll down to the last name in the “about us” section. The clip is called “Live in Budapest”).
I’m in Germany incidentally so I don’t know how copyright laws might differ from the US, but even getting a US perspective might give me an idea. Of course if anyone has information specific to German copyright law even better.
So what say you? I’m I legally required to get permission from him (and all the other musicians I suppose) for using this clip in this way?
As I understand it, there is no broad category of fair use in Germany. Instead, there are specific exceptions that allow you to use copyrighted material without permission.
And that is the total of my knowledge on the matter. I don’t even know what rights you, as one of the musicians and the player of the solo, have regarding the recording.
Don’t know thing one about German copyright law. I will say that 2 minutes does seem kind of lengthy. I don’t know how long the original recording is but if it’s the length of a typical pop/rock song, that could be an issue.
What your former colleague is asserting is not a copyright, but a “performer’s right,” that is, the right of the performer not to have their performed work used without their consent.
This often comes up when an artist doesn’t want to be associated with something or someone, for example, being used in the soundtrack for a commercial or at a political rally (and an incidental use of music at a political rally is an example that it’s not even relevant whether the work is being used to “sell” something).
In the U.S. performer’s rights are under the umbrella of “fair use.” In Europe, as I understand it, they’re covered under the rules of the Rome Convention and are much more explicit.
You say your clip was from a concert you gave “with the band.” The first two questions I’d ask are: Were you paid by the band, or did you just happen to be be up on stage jamming with them? And can this other musician actually be heard on the clip?
At the time, I was considered a core member of the band. The piece we were performing was a single approx. 70 min. composition that I co-wrote with the band. The clip in question was of an improvised guitar solo section where even the bass was largely improvised (though there are some statements of a composed bass line present).
I don’t remember what we were paid for that gig, but any money we made (as well as expenses we paid) were shared among band members. Yes the other band members are also playing on the clip.
The issue here is not that the clip is being used for something they don’t want to be associated with or anything like that. And it’s not in any way a threat to their ability to earn money. It’s simply that I left the band under contentious circumstances and they wanna be jerks about it.
I wasn’t asking for legal advice. There is approximately zero chance this person would actually pursue legal action against me for this. I was asking only for factual information so I can be informed before I respond.
If I had enough money and were intent on making your life miserable, I would base my complaint on your appropriating both the composition and performance by “the band” without authorization.
Surely somewhere there is something that defines who “the band” actually is. If someone wrote a check to the band, who would be authorized to cash it? Which of the band members were authorized to sign contracts? Is that particular song registered with ASCAP, BMI or SESAC? If so, who do the royalty checks go to. If the song was sold to a music publisher, who signed the contract? Did you agree to sell it?
Who recorded the performance? Were they hired by the band? Who signed their contract? Does the contract allow members of the band to distribute the recording?
Sorry to be so long-winded and nitpicky about it, but the fact is, by putting the clip on the Internet, you’re distributing it. And either you have the right to do that or you don’t.
In practice, in the US , assuming this was a typical garage band that really had no legal stucture a lot would depend on whether you were doing the same thing before the split without complaint.
The suit would likely be considered vindictive and be tossed.
The guy who sent me the message is basically “The Band”. It’s his band, he did all the bookings and is the one who would sign any contracts. The “song” at that time was a 70 minute composition (including freely improvised sections) which was not yet recorded in the studio. I wrote about 30% of it, but when I left the band I refused to give permission to use any of the material I wrote for a recording. (I was treated truly horribly by this guy who, among other things, attempted to take credit for all my work).
Since then, they have recorded a CD of this material in a reworked form (presumably excluding my contributions, though I’m not sure, I haven’t heard it all). Again, in this clip there is a bass line present at times that is part of the composition, but the clip is largely freely improvised so I doubt it would bear much resemblance to the studio recorded version.
The recording was done by the venue. I’m pretty sure it wasn’t part of a pre-arranged deal, but more likely a courtesy that the venue probably does in general. I have a recording of the very same performance from my own device, which I could also have used if it makes any difference.
If there’s zero chance they’ll pursue legal action against you, why even bother responding? If you just ignore it and keep on doing what you’re doing, will it just blow over and eventually they’ll forget about it?
Otherwise, maybe you could offer to buy the rights to that 2 minute excerpt of some very nominal, lowball fee or even write a similar letter back to them regarding any audio they have with your playing on it (ie CD sales, music on their website etc).
It sounds like this is basically a cease and desist letter. They may not take any legal action against you now, especially if they’re just being vindictive. But you may need to be concerned that they’re just getting their ducks in a row in case they decide to pursue it later on. Who knows, two years down the road, if they do decide to do something they can show that they’ve already asked you to stop and you’ve continued.
From that point of view, the best idea may be to pull the clip and rerecord it on your own [or with some friends to play the other instruments].
This is probably not a horrible time to find a lawyer to have a consultation with and have them write a reply for you. In the US, that could probably be done for $100-$200. The idea, when people do this, is to show that you have a real lawyer and intimidate the other party into backing off (IOW put up or shut up/you’re calling their bluff).