The request of some more modern artists for fans to leave their phones at home can seem a little double-edged. On the one hand, some artists may request the latter in order for fans to be in the moment and not on their phones, while on the other hand, some artists may believe this is potentially illegal. Adele, for example, recently called out a fan watching her show and recording, which must have been embarrassing.

If you sat in a cinema and pirated a film by recording it on your phone, this would certainly be illegal, but recording concerts can be quite different. There isn’t necessarily any legal precedent for people being sued for this, but if they did the defendant would likely argue fair use.

Hi-res camera and perfect audio equipment

A concert arguably is a rare event that the defendant would want to remember, and it’s likely the recording would be bad quality anyway. If you genuinely sat at the back of a concert with a hi-res camera and perfect audio equipment, recording the concert and then making money from its distribution on say, YouTube, then this would certainly be illegal.

Copyright issues would be at play, but most concert recordings have gargled audio anyway so this would not stand in court. Taking a few videos for your own memory, or to show others, would be hard to sue for in court. Yet, we should try to enjoy these shows and be in the moment, for fear of the artist stopping their concert to single us out.

Name: Richard J. Brandenstein, Attorney and FBR Law partner https://www.fbrlaw.com/

Concerts are copyrighted

“From a strictly legal perspective, concerts and similar performances are copyrighted and the rights to record and distribute these performances are generally not granted to ticket holders. Many bands will sell live recordings from their concerts or even videos of the performances, and making and sharing your own recording is cutting into their business.

That being said, most people who record concerts aren’t doing it to share the videos too widely; at most, they’re being viewed by friends on social media. This is not a serious threat to official concert recordings, and this is reflected in many bands’ laissez-faire attitudes toward fans recording their shows. In short, yes it’s technically illegal, but it’s something you’re not likely to be prosecuted for and it probably won’t hurt your favourite band’s bottom line.”

-Ben Michael, Attorney, Michael & Associates

Did the artist give permission?

“One of the most common questions asked by music fans is whether or not it is legal to record and share a concert. The answer to this question depends on a number of factors, including the country in which the concert took place, the venue, and the artist’s permission. In general, it is best to err on the side of caution and obtain permission before recording and sharing a concert.

Many artists have strict policies against unauthorized recordings, and venues may also have rules against the recording. In addition, some countries have laws that protect live performances from being recorded and shared without permission. By taking the time to obtain permission before recording and sharing a concert, you can help ensure that you are not violating any laws or infringing on anyone’s rights.”

-Oberon Copeland, Owner & CEO Of Veryinformed.com

Recording many shows

I am a passionate “Taper” (bootlegger is a term ashamed in the industry, though tapers create “Bootlegs”) of shows. I have recorded hundreds of shows over the last 30 years.

The industry used to be really strict on taping shows, but in my experience, even in the early days, there were bands that were laxer with it than management. At times it was the venue or the band’s label that was able to say “no taping”. I have been to several shows where they had “taper sections” though it was stated on the tickets “No recording” etc, however, it was difficult to enforce.

I have been to some shows where the singer said “Ok all you people taping, it’s about time to turn over that first side of the 90-minute tape.”

However there are artists who do not want it done, I have one bootleg of a Peter Murphy concert in 1990 in Los Angeles where in the middle of the song, he noticed someone with a tape recorder and yelled “Turn the F###ING THING OFF!!!” over the mic.

Record and share concert

As phones became the norm, it is now impossible to enforce it, though one Michelle Shocked shows in 2010 in Salt Lake City she asked everyone to put their phones away just to enjoy the moment. She yelled at someone for taking a picture later in the set.

U2 as an example has always supported people taping their shows. Their belief is that “not everyone gets into a U2 show, but everyone should deserve to have it”. Thus they have freely allowed taping of their shows since they began. However, U2’s soundman tapes all of the shows himself, and every tour tosses out a couple of soundboard recordings to the fans thus making the trades of the bootlegs less interesting.

Sue everyone for the unlicensed product

Since bootlegs are no longer put into print like they were, and just appear online within minutes of the performance, no one can stop that. I did see several stores selling printed bootlegs in the “used” bins as “used exotic recordings”. In order to fain ignorance should they ever get investigated?

I only once saw someone have any legal trouble and that was for having a live “Misfits” bootleg, and Glen Danzig the singer is incredibly litigious and will sue everyone for the unlicensed product.

In 2002 Marc Burgess of “The Chameleons” saw I was taping a show, and asked for a copy of it. He said “Being bootlegged is an honour, it is a sign of respect. The bands who get bootlegged are the greats, U2, the Rolling Stones, Pink Floyd, and The Sisters of Mercy. Only the REAL good bands put on a show worth taking home with you, no one records Brittany Spears”.

I met Midge Ure from Ultravox and presented him with a vinyl bootleg for an autograph. I explained that in one of his albums, there was a cassette skull and crossbones label saying “Home taping is killing music”. But that finding any live material of his in those days was impossible. Midge Ure told me “Bootlegs are fine, it is the problem of the labels, most artists support it, we always have”.

-Jeremy “Jacques Hinks” Cloward, sonictroubador.com

Not permissible to record a concert

I am an attorney in Washington, DC and have some experience with the legal issues surrounding live concerts. Here are my thoughts regarding the topic.

Under copyright law, it is not permissible to record a concert and use the recording for commercial purposes – that is to make money from the recording – without the performer(s)’ consent. Moreover, some artists may put in their tickets that the performance is not to be recorded at all, even for personal use by the concert-goer.

If so, that becomes part of the contract between the artist/promoter and the audience member. However, that is extremely hard to enforce. For example, if someone shows a recording to their friends in private, there is very little chance the artist will even know.

Record and share concert

Some artists, however, could scour the internet for videos shown on social media but, again, that would require significant time and the potential damage to the artist is likely, not significant. Moreover, some artists like the publicity of their performances being shared (and often praised).

With commercial usage, however, artists are keenly on top of monitoring anyone making money off recordings of their performances and will take legal action to stop it and/or recover damages, including from all parties making money off the video, not just the person who recorded.

-Thomas J. Simeone, Simeone & Miller, LLP

Varying degrees of rights to their creative content

Songwriters and performers have varying degrees of rights to their creative content. Some want their content shared as much as possible. To them, it’s like free advertising. Others want to maintain full control over their content and discourage any private sharing of their art.

Both perspectives are valid. Many times, though, fans don’t have a clue if the performer wants to control their content and advertise it through well-thought-out means or if they want their audience to do the advertising for them.

So concertgoers should respect the wishes of those providing their entertainment. It’s disrespectful to the performers to share something they wish to manage.

Legal rights to performances

The legal rights to performances are a little bit tricky. It’s easy to understand that it’s illegal to seek revenue through someone else’s performance without their permission. It’s also an ethical violation to do so.

On the other hand, if you record a song or part of a concert and post it to your private social media account, that is usually considered fair trade and acceptable. Of course, if the performers are against it, you may have an ethical problem, but you usually won’t run into legal trouble.

Posting a clip from a concert on a public website will likely result in your post being removed at a minimum to you facing fines.

Melanie Musson is a legal expert with Clearsurance.com

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