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I am learning guitar and found out that Justin Sandercoe (from famous guitar teaching website justinguitar.com) has been forced to remove some of his lessons because the song he was teaching his audience how to play was copyrighted.

Is this because he makes money off ads?

When exactly is it illegal to perform a song on an instrument I am learning?

If I don't pay a mechanical royalty am I not allowed to perform the song for myself in my own home with no one around as guitar practice? What if it's a small private party and someone busts out the guitar and plays a well known song?

What draws the line for when it is illegal to perform a known copyrighted song?

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The crucial limitation is 17 USC 106(4) which gives the creater of the work the exclusive right to authorize

in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly

You can play music copyrighted privately, but not publicly, without a license. Look at the definition of public performance in 17 USC 101:

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

  • So any and all licenses regarding performing music only apply to "public performances"? There are none that apply to private ones? and the part in (2) there makes any internet uploads "public"? Even if the upload is guarded by some password or something that people need to access the video (let's say an unlisted youtube video or a shared Google Drive link)? – Taako Aug 10 '18 at 20:44
  • Well, I assume that you have a legal copy of the sheet music. When you download a digital file as opposed to buying a book of sheet music, you're bounds by the terms of the download license. – user6726 Aug 10 '18 at 20:48
  • Let's say i learn from a friend how to play the song. Is it illegal for me to play the song in front of a video camera and upload it to the internet? Additionally, what if the place i upload to is not accessible by people unless i give them a secret code or invite? does that constitute a "non-public" performance? – Taako Aug 10 '18 at 20:50
  • Uploading to the internet would fall under the rubric of public performances. Secret codes don't really change anything: what matters is whether you have a a substantial number of persons outside of a normal circle of a family and social acquaintances. You attorney might give you an indication of how safe it would be to make this available to 4 outsiders, vs. 40 vs. 400. – user6726 Aug 10 '18 at 21:55
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A copyright holder enjoys the exclusive right of public performance, so the answer is that when your performance is for the public, it is prohibited.

Generally speaking, it doesn't matter whether you're being paid for performing or not. As long as the performance is public, it's considered to be cutting into the copyright holder's ability to market his work and therefore a violation.

So that leaves the question of when a performance is public. One of the easiest tests is to ask whether it is going out to "a large number of people who are unrelated and unknown to each other." ABC v. Aereo, Inc., 134 S. Ct. 2498, 2509, 189 L. Ed. 2d 476 (2014). So playing a song over the speakers at a mall is public, but playing over the phone to your mother is not. Playing at a charity gala is public, but playing at a dinner party at home is not.

To hit your specific questions, practicing alone and playing for a small private party are not public performances. Performing for a large group of people you don't know -- via YouTube, for instance -- will usually be a public performance. The facts that you're not paid, you're an amateur, the song is well known, and you know the song is copyrighted don't help or hurt in either case.

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    "if the performance is public, it is prohibited": unless it is licensed. Many venues pay license fees to rights organizations such as ASCAP or BMI, and a performance in such a venue of a song covered by the venue's license would not be prohibited. – phoog Aug 11 '18 at 15:38

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