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I posted a video to YouTube featuring a violin performance by my son. It was an original performance, recorded by me and using equipment owned by me. Later I found that ads were appearing on the video and being monetized by a third party who had filed a YouTube copyright claim.

Can anybody clarify for me the copyright status of music performances? The piece performed was "Tango Jalousie" composed in 1925 by Jacob Gade (1879-1963). Does the composer's estate really have the legal right to monetize my son's performance?

I am in the UK (England).

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    Copyright protection in the piece being performed lasts until seventy years after the composer's death, so, for the next sixteen years, yes. – phoog Feb 7 '17 at 4:56
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The person who produces the video holds copyright. However, one cannot just perform any old music in public without permission. Section 19 restricts public performance of copyrighted works: that means, in order to publicly perform a work, one needs permission (a performance license). Interestingly, this section says

Where copyright in a work is infringed by its being performed, played or shown in public by means of apparatus for receiving visual images or sounds conveyed by electronic means, the person by whom the visual images or sounds are sent, and in the case of a performance the performers, shall not be regarded as responsible for the infringement

So, if there was not a proper license, then the performance was infringing, but the performer is not the infringer, leaving us to wonder who exactly was (an event organiser, or whoever allowed this performance to happen). In case this has anything to do with school, section 34 says that a performance involving just pupils, teachers and those directly connected with the establishment is not a "public performance", but it also says that one is not "directly connected with the activities of the educational establishment simply because he is the parent of a pupil at the establishment".

On the one hand, the underlying music is still protected by copyright; but the public performance of it may have been infringing; but the performer is not the infringer; if this was a school performance, the presence of parents makes this a non-exempt performance; and yet, the producer of the video holds the copyright in the video. You might sue for infringement of the video, and the estate could counter-sue for infringement of the underlying work. Your solicitor would be able to advise you on the fine points, in light of the relevant unspecified details.

  • The statement that "the presence of parents makes this a non-exempt performance" is not supported by the cited law. Parents are not "directly connected" by virtue of being parents, but that definitely does not preclude their being directly connected through some other means (like trivially, being the teacher themselves, or more likely, being a volunteer/hired staff member that regularly contributes and supports the performing group). – Nij Feb 7 '17 at 7:05
  • Very informative, thank you. This was not exactly a school performance, it was a "student concert" organised by my son's violin tutor. Parents and other family were present, but no admission fee was charged. I wonder what kind of remedy the copyright holder might have available if they chose to assert their rights? – Neil Bartlett Feb 7 '17 at 10:01
  • Professional music tutors are required to pay a statutory royalty to cover any copyright music they teach (obviously Beethoven and Chopin are no longer copyright). This licenses them to teach and for their students to perform copyright music. – Dale M Feb 7 '17 at 12:02

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