Phantom Wins

[Peel Paint]

Most of you are right, even the ones who don't agree with one another.

Yes, Phantom deserves to reap extra revenue out of their 2008 show and protect composers' copyrights and restricting much of the free amateur content on video websites is consistent with that. Like every drum corps, Phantom needs money to operate.

On the other hand, what Phantom should do (and maybe eventually will) is recognize the power of video websites to help promote sales. They should open an official channel they control on the leading no-charge video distribution website and make excerpt clips available with a link to Phantom's website to purchase the whole thing. They should recognize that if demand is there to see footage of Phantom's parking lot drumline, Elsa in retreat, etc etc, produce it officially or get it from videocamera-equipped fans and sell it on DVD or by download at a win-win price. There's no reason everybody can't be happy except the people who want it all for free.

[ssorrell]

2. Phantom is hurting recruitment avenues by cutting out a YT venue. If you're going to remove footage from others, at least open an official channel. Use YT as a tool, don't look at it as a villain.

Somehow I don't see Phantom, or any of the top 8 corps for that matter, having difficulty recruiting potential members anytime in the near future, no matter if a single free video is available online or not.

[audiodb]

1. People who are going to pirate are going to pirate. Nothing will change that.

Coyright holders are legally compelled to discourage piracy. Nothing will change that.

2. Phantom is hurting recruitment avenues by cutting out a YT venue. If you're going to remove footage from others, at least open an official channel. Use YT as a tool, don't look at it as a villain.

First of all, I think the recruitment value of YouTube video may be overrated by some. But more importantly, who's to say PR will not use it? For all you know, we might see an all-out blitz of free video teasers from Phantom Regiment in the fall.

Point of the matter is, if they have no control over their own content, it might not help (and could even hurt their efforts).

I love the extra access we've gained to the season over the last couple of years through the FN, but at the same time I'm getting so aggravated because it feel that much harder to share this activity with others. The way to grow the activity is to expose it to more people, and if all the content is locked down then there's no way to spread the word.

But it's not "all locked down". There are still plenty of freebies and teasers coming from DCI.org and the individual corps....and those items are tailor-made by those organizations to serve as effective marketing tools. And the fans are still free to show their audio/video to friends, drag them to shows, and so forth.

[StuStu]

Finally - something I know something about. Perhaps I can shed some light here, as I've previously done some work with copyright law.

Copyright law protects the rights of the "author" of any creative work fixed in a tangible medium of expression. The law gives the copyright holder particular rights to control the use of that work.

As a fundamental rule, copyright protection springs to life at the moment of creation. As soon as a creative work is somehow recorded or memorialzed, the person who did it has a common-law coppyright in the work. This can be enforced without registration, but generally you get better protection if you register the work with the Library of Congress. Anyone is entitled to put the circle-c mark © on any creative work once it is created.

When it comes to music, there are multiple layers of copyright law at issue. First, there is the right to the underlying work. On top of that there is the right to a particular performance of that work. These are two distinct things. Take, for example, an advertiser who wants to use the song "Yesterday". It was written by Lennon/Mcartney and recorded by The Beatles. You could buy the right to use the underlying song, which allows you to "cover" it, but if you want to use the Beatles recording in a commercial, you have to get additional rights to that actual performance.

To put it in the drum corps context - the corps has to have the right to use the underlying music. How they can use that music will depend on what they negotiate in the licensing agreement with the rights holder. Most licensing agreements require the licensee to take steps to prevent unauthorized reproduction of the underlying work.

A recording of the corps playing that music will be a separate, distinct work and whoever records that will have separate rights in the actual recording of the corps. Either the corps or DCI (depending on where and when the recording is made) has the rights to control how that performance is used. Thus, the corps and/or DCI can require You Tube to remove an unauthorized video, and under the Digital Millenium Copyright Act, You Tube must comply or they face potential liablity. This is to protect the corps/DCI's copyright in the perforamnce, as well as to comply with the contractual duty to prevent unauthorized use of the underlying work.

Here's where drum corps is a huge can of worms. A drum corps show has many, many different component pieces - the underlying music, the arrangement of that music and the performance of that music are three separate, but related, creative works each with individual copyright issues. Plus, you have the writing of the drill, and the perforamce of the drill, plus creation of the guard work, and performace of that guard work, all of which can be seen as separate pieces to the puzzle.

I could go on and on (as if I haven't already) but, to sum up, the corps and/or DCI have the right and, most likley the obligation, to prevent disbribpution of unauthorized recordings.

[ssorrell]

I think some people are unclear about a couple of issues...

The corps do not hold the copyrights, with the very few exceptions of corps' arrangers that compose original works, if and only if the composer chooses to copyright his work.

The corps pay a fee to arrange the music for their medium and to perform it in public. That's all.

The corps do not buy licenses to distribute recordings of these tunes...not initially. DCI does, I assume, buy a license that allows them to record finals, etc. and sell those DVDs, CDs, and online media which contain the performances of copyrighted music.

Although it might be unfair to place responsibility on the corps to make sure that unauthorized recordings are not available to the public, I don't think that any corps would want to take the chance that they would ever be challenged. Fines are steep.

I don't know that it has anything to do with the fact that removing all unauthorized videos gives the corps and DCI a greater chance at profit potential through their sale of their materials...I'm sure it has everything to do with law and the fear of letigation. Has anyone ever been sued before? Maybe not. But it only takes one lawsuit to start the ball rolling and the opening of flood gates. And one lawsuit alone could be the end of life as we know it.

[byline]

I could go on and on (as if I haven't already) but, to sum up, the corps and/or DCI have the right and, most likley the obligation, to prevent disbribpution of unauthorized recordings.

Great post. Thank you!

[year1buick]

Finally - something I know something about. Perhaps I can shed some light here, as I've previously done some work with copyright law.

Copyright law protects the rights of the "author" of any creative work fixed in a tangible medium of expression. The law gives the copyright holder particular rights to control the use of that work.

As a fundamental rule, copyright protection springs to life at the moment of creation. As soon as a creative work is somehow recorded or memorialzed, the person who did it has a common-law coppyright in the work. This can be enforced without registration, but generally you get better protection if you register the work with the Library of Congress. Anyone is entitled to put the circle-c mark © on any creative work once it is created.

When it comes to music, there are multiple layers of copyright law at issue. First, there is the right to the underlying work. On top of that there is the right to a particular performance of that work. These are two distinct things. Take, for example, an advertiser who wants to use the song "Yesterday". It was written by Lennon/Mcartney and recorded by The Beatles. You could buy the right to use the underlying song, which allows you to "cover" it, but if you want to use the Beatles recording in a commercial, you have to get additional rights to that actual performance.

To put it in the drum corps context - the corps has to have the right to use the underlying music. How they can use that music will depend on what they negotiate in the licensing agreement with the rights holder. Most licensing agreements require the licensee to take steps to prevent unauthorized reproduction of the underlying work.

A recording of the corps playing that music will be a separate, distinct work and whoever records that will have separate rights in the actual recording of the corps. Either the corps or DCI (depending on where and when the recording is made) has the rights to control how that performance is used. Thus, the corps and/or DCI can require You Tube to remove an unauthorized video, and under the Digital Millenium Copyright Act, You Tube must comply or they face potential liablity. This is to protect the corps/DCI's copyright in the perforamnce, as well as to comply with the contractual duty to prevent unauthorized use of the underlying work.

Here's where drum corps is a huge can of worms. A drum corps show has many, many different component pieces - the underlying music, the arrangement of that music and the performance of that music are three separate, but related, creative works each with individual copyright issues. Plus, you have the writing of the drill, and the perforamce of the drill, plus creation of the guard work, and performace of that guard work, all of which can be seen as separate pieces to the puzzle.

I could go on and on (as if I haven't already) but, to sum up, the corps and/or DCI have the right and, most likley the obligation, to prevent disbribpution of unauthorized recordings.

Another ancillary to this (please correct me if I'm wrong) but if you're making a recording, or taking a photograph, from a public vantage point (say, a parking lot) then there's no copyright violation in simply taking the actual video or picture (for your own personal use), but you can't later distribute your video/photo of the copyrighted or trademarked material.

I've read stories about that people running into problems with this when trying to take pictures of famous landmarks that have been trademarked, and the associated security personnel trying to either prevent them from taking pictures or even going so far as trying to confiscate their film or cameras. As I understand it, you're perfectly within your right to photograph even copyrighted or trademarked material if it's visible from a public vantage point, and you're taking the picture from a public vantage point--a sidewalk, for instance.

As this applies to drum corps (again, per my understanding), you're perfectly within your right to record a warm-up in a public area, but you have no right to distribute the recording without the permission of the corps.

[StuStu]

Another ancillary to this (please correct me if I'm wrong) but if you're making a recording, or taking a photograph, from a public vantage point (say, a parking lot) then there's no copyright violation in simply taking the actual video or picture (for your own personal use), but you can't later distribute your video/photo of the copyrighted or trademarked material.

I've read stories about that people running into problems with this when trying to take pictures of famous landmarks that have been trademarked, and the associated security personnel trying to either prevent them from taking pictures or even going so far as trying to confiscate their film or cameras. As I understand it, you're perfectly within your right to photograph even copyrighted or trademarked material if it's visible from a public vantage point, and you're taking the picture from a public vantage point--a sidewalk, for instance.

As this applies to drum corps (again, per my understanding), you're perfectly within your right to record a warm-up in a public area, but you have no right to distribute the recording without the permission of the corps.

You're spot on with this. Architectural copyrights and trademark rights are intricate things. IIRC, the big case on the topic involves the Rock and Roll Hall of Fame in Cleveland.

Other issues come into play, too. When you buy a ticket, what you actually get is a limited license to watch the performance. Read the small print on the back some time, and you'll likely see a type of copyright notice. That's why DCI (or any concert promoter) can ban cameras and tape recordesr in the stadium, if they so choose.

When the corps is in public view, for example in warmups, in all likelihood there's no infringement with recording that. If nothing else, that probably falls under the "fair use" doctrine. But, that doesn't mean you can distribute it, which is why those videos disappear from You Tube on demand.

Here is where the lines get blurry. If I record Phantom doing a stand-still of their show in the parking lot, I can't distribute that. But, what if I have video of them warming up playing unison notes or scales? (Heck, Barb Maroni would have us play a unison "G" for 45 mintues at a time.) Arguably, there is no creative work there, it's just playing notes on a horn. Or what aobut video of the guard doing stretches, or warm-up spins? Again, arguably those videos would not infringe on anything.

As a practical matter, You Tube and other internet providers are going to err on the side of safety. The 2000 DMCA gives them "safe harbor" for infringing material posted on their sites if they act with reasonable dilligence to remove it. But even there, the lines aren't clear.

Copyright law in the age of the internet is fascinating stuff. I really enjoyed doing that kind of work. But, my wife also is an IP lawyer, and we were at differnt firms with too much potential for conflicts. So I moved into other areas of the law, leaving her to become quite the expert.

[straightj23]

I blame it on Viacom. Ever since they stepped in, youtube's been cracking down on this stuff a lot. A lot of drum corps videos have disappeared ever since then.

[DCIHasBeen]

You're spot on with this. Architectural copyrights and trademark rights are intricate things. IIRC, the big case on the topic involves the Rock and Roll Hall of Fame in Cleveland.

Other issues come into play, too. When you buy a ticket, what you actually get is a limited license to watch the performance. Read the small print on the back some time, and you'll likely see a type of copyright notice. That's why DCI (or any concert promoter) can ban cameras and tape recordesr in the stadium, if they so choose.

When the corps is in public view, for example in warmups, in all likelihood there's no infringement with recording that. If nothing else, that probably falls under the "fair use" doctrine. But, that doesn't mean you can distribute it, which is why those videos disappear from You Tube on demand.

Here is where the lines get blurry. If I record Phantom doing a stand-still of their show in the parking lot, I can't distribute that. But, what if I have video of them warming up playing unison notes or scales? (Heck, Barb Maroni would have us play a unison "G" for 45 mintues at a time.) Arguably, there is no creative work there, it's just playing notes on a horn. Or what aobut video of the guard doing stretches, or warm-up spins? Again, arguably those videos would not infringe on anything.

As a practical matter, You Tube and other internet providers are going to err on the side of safety. The 2000 DMCA gives them "safe harbor" for infringing material posted on their sites if they act with reasonable dilligence to remove it. But even there, the lines aren't clear.

Copyright law in the age of the internet is fascinating stuff. I really enjoyed doing that kind of work. But, my wife also is an IP lawyer, and we were at differnt firms with too much potential for conflicts. So I moved into other areas of the law, leaving her to become quite the expert.

As a practical matter, it doesn't even have to be a famous place ... If you're out shooting on location, and you get enough of someone's house in the footage that it can be identified, you have to get rights from the owner to use it.

BTW, the DMCA is a sham foisted upon us by the former head of the MPAA that has extended copyrights on materials that should have, or would be, going public domain. It's a huge money maker for the Media and Entertainment Industries at the expense of you and I.

Edited August 15, 2008 by DCIHasBeen