A Time To Stream

As we all try to figure out how to cobble the live performing arts world together, more and more venues, presenters, and artists are turning to streaming—live streams, virtual performances, and showing archived footage of previously recorded concerts.

For now, these efforts are critical as a means to stay connected with audiences. Soon, these will need to be turned into additional revenue streams as well. Regardless, this is unchartered territory for many, particularly with regard to the rights and licenses necessary to stream performances and recordings.

But first things, first: We need to clear up a few definitions.

“Streaming” is where you upload a recording to a source or platform so that it can be heard or watched by an audience over the Internet. While this can be done through your own website or server, most recordings and videos are viewed through a third party platform such as YouTube, Instagram, FaceBook, Vimeo, SnapChat, Netflix, YouTube, Hulu, Pandora, Spotify, TikTok, RiffRaff, Taffeta, Titipu, KoKo, PishTush, PoohBah, and YumYum, among others.

Don’t be confused by the terms “Streaming” and “Live Streaming.” They mean the same thing. Remember, there is no standard terminology in the performing arts industry. Whether you intend to stream an archival recording of a performance, create and stream a new recording made in a studio or venue, broadcast a live concert to an audience who can watch it in real time as it is taking place, make a recording available for free, or make a recording available on-demand for a fee, these are just various types of “streaming.”   

The key distinction is that a streamed recording remains at all times on the platform for the audience to watch only through the platform and cannot be downloaded. Downloading is when you are able to take a recording from the Internet and copy it from the platform to your own computer or phone. Apple I-Tunes, for example, is a downloading platform whereas Apple Music is a streaming platform. Streaming is like listening to the radio in your car. Downloading is like buying the CD.  Similarly, Amazon Prime gives you the option of renting a movie to watch for a fixed period of time or buying a copy of a movie to download and watch on your own devices.

Whether using an archival recording or streaming a live concert, Obtaining the necessary rights and licenses to stream a concert or performance essentially involves the same considerations and questions you would ask (hopefully) with regard to presenting any live performance: 

• Do you need a license from the owner of the music to perform the music? 

• Do you need a license from the owner of the music to use the music as part of a musical, dance performance, or opera?

• Do you need a license from the owner of the music to make re-orchestrations, new arrangements or significant adaptations?

• Do you need a license from the owner of the music to record and stream the performance of the music?    

• Do you need a license from the performers to record and stream their performance?

• Do you need a license from the owner of the recording of the music to stream the recording?

Essentially, to get permission to record and stream a performance, you will potentially need licenses from three different parties:

1. The Performer(s)

2. The owner of the music

3. The owner of the recording

Licenses From The Performer(s)

If your intent is to stream an archival recording, you will need to ensure that you had the right to make an archival recording in the first place and what you are allowed to do with it. This should have been spelled out in the initial engagement contract for the performance. If not, you will need to go back to the artist(s) and request permission to stream the existing recording.

If you are seeking to create a new recording or record a live concert for streaming, then among the other engagement details you will need to request permission from the artist(s) to record and stream the performance. Certain artists, particularly orchestras, may have union contracts or other restrictions (such as exclusive recording agreements with labels) that will not permit any recordings or streaming without additional licenses and fees.

Even if you get all of the necessary licenses from the artist(s) to record and stream their performance, you are only a third done. Remember, unless an artist is recording her own music, artists do not control the music they perform. So, just because an artist gives you the right to make and stream an archival recording of the artist or the right to record and stream a live performance, you will still need to obtain permission from the owner of the music to perform, record, and stream. 

Licenses From The Owner of The Music

Any time you intend to perform music at a live concert, you need permission to perform it (what I like to call “stand and sing.”) Except for instances of music being used as part of a musical, dance, or opera production, such permissions are most often arranged by purchasing performance licenses through Performing Rights Organizations (PROs) such as ASCAP, BMI, SESAC, GRM, etc., when you purchase a performance license from a PRO, the terms of the license will govern what you can and cannot do with the music as part of the “performance.” Like everything else, nothing is standard. Everything depends on the type and terms of the license you purchased. These will differ from nightclubs to non-profit venues to schools to for-profit theatres, etc, so you will need to read your specific license to see what you can and cannot do and what additional rights you might need. However, here are some generalizations:

• More often than not, streaming is covered in a performance license as long as the end user is viewing the recording on a platform licensed by the PRO, such as YouTube, Instagram, FaceBook, Vimeo, SnapChat or TikTok. Embedded, proprietary players owned by these licensed platforms (YouTube being the most common example) and embedded into the presenter website are also covered.

• More often than not, streaming from the websites of colleges and universities (.edu) are also usually covered by the performance license.

• More often than not, streaming directly from the website of an artist, venue, or presenter is NOT COVERED without obtaining additional licenses. This is true of live streaming as well as archived videos of past performances. So, when in doubt, always opt to stream through a platform already licensed by the PRO.

• Downloadable recordings are NOT COVERED. These rights need to be obtained directly from the owners or publishers of the music. Most PRO’s cannot issue such rights.

• Performance licenses also do not cover the performance of music as part of a musical, dance performance, or opera. Those licenses must be obtained directly from the owner or publisher of the music. Most PROs cannot issue such rights.

• Most performance licenses do not include the right to make re-orchestrations, new arrangements, or significant adaptations of the music. Those licenses must be obtained directly from the owner or publisher of the music. Most PROs cannot issue such rights.

Licenses From The Owner of The Recording

An oft overlooked concept is that recordings are separately, copyrightable creations. When a recording is made, it is owned by the person or organization that made, edited, and mastered the recording and NOT by the owner of the music which was recorded and NOT by the performer who performed it. (Believe me, this comes as quite a shock to composers and performers who presume that if they are on the recording then it’s also theirs to use.)  So, once you get all of the necessary rights and licenses to record and stream a performance, you will also need to make sure that you obtain permission from the person who recorded it—even if it is a volunteer or a member of your staff. In fact, especially if it is a volunteer. Short of children performing with fire and audience sitting on broken glass, volunteers are often the largest source of grief. (Ok, there’s also the board to consider, but I digress.)

A few final thoughts:

1. Everyone needs to obtain rights and licenses regardless of whether or not you charge a fee to watch the streaming concert.   

2. If you don’t know what rights you already have or what rights you need, always  reach out to the performer(s), the owner of the music, and the owner of the recording. Never assume or just hope that someone else with do the “right thing.”  The “right thing” is an extraordinarily subjective concept. 

3. Anyone can charge whatever they want to issue a license, or not charge anything   at all, or refuse to issue a license for any reason. Everything is subject to negotiation as influenced by each person’s degree of largesse, munificence, guilt,  desperation, fear, uncertainty, pride, greed, wrath, envy, lust, gluttony, and sloth.

4. There are no special Covid-19 exceptions. 

5. There are no special non-profit or school exceptions.

6. Everyone is screwed right now.  No one is more or less screwed than anyone else. Everyone is going to need to compromise if we are going to survive this.

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THE OFFICIAL LEGALESE:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!