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Hypothetical: You are a top-flight vocal performer with numerous recordings, concerts and theatrical roles.

You are hired to perform as live entertainment at a major event (political convention, charity fund-raiser, etc.). The organizers pay you to perform two specific songs.

You prepare and perform the two songs to the satisfaction of the event organizers. It then develops that the event organizers had not secured the performance rights to the songs; in fact, they had asked for them and been explicitly refused.

Did, you, as a hired contractor, have any duty to acertain the copyright status of the songs you were asked to perform?

Are you, after the event, subject to any legal penalties?

US, Canada, EU specific answers...

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    Ideally, your contract should have stated either that they paid the needed rights for performing those two songs, or that the performer did need to. – Ángel Sep 14 '20 at 22:46
  • I'd assume you are liable for copyright infringement, simply because it'd be a big loophole if you weren't. Consider the following alternative scenario: you really want to perform a specific song, but can't get the rights. You get your friend Broke Bob to write you a contract to perform the song in exchange for one dollar. When the copyright holder comes after you, you tell them to go sue Bob instead. However, Bob has no assets, so the copyright holder can't collect anything and you get off scot free. – Nate Eldredge Sep 14 '20 at 23:27
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    But as @Ángel says, in real life, your contract would have made clear who was supposed to obtain the rights. And if the organizers were supposed to do it, you would have demanded, as a condition of the performance, that they indemnify you for any failure to do so. So in that case, the copyright holder could sue you, but the organizers would have to reimburse you for whatever liability you were found to have. – Nate Eldredge Sep 14 '20 at 23:30
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Does the performer infringe the copyright of the song in the hypothetical?

If the song has a valid copyright, the answer is likely yes, in the US.

Absent of any specific statutes governing the situation, there is likely infringement by the performer.

  • 17 U.S.C. § 106(4) grants the copyright owner of musical works the exclusive right to public performing.

  • Copyright is a strict liability system, therefore innocently believing that the organizer had obtained the permission is not a defense.

  • This is likely not a fair use, but there may be a narrow circumstance in which this is a fair use.

As others have pointed out, the contract between the performer and the organizer may provide protection for the performer. Additionally, in your hypothetical, the organizer is likely liable for secondary infringement, according to the theory in Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005) (the "inducement rule"):

[O]ne who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.

Grokster.

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In the United States, no.

Among the rights secured by copyright is the right of public performance, so a license is legally required as a prerequisite to performing a copyrighted work at the kind of venue you're talking about.

However, the duty to obtain the license is generally assigned to the venue, not to the performer. Especially in the case of large venues and events, the performer is generally safe to assume that the venue has tended to the required licenses. A top-flight vocal performer will likely also include provisions to this effect in the contract, requiring the venue to warranty that it has secured all licenses necessary for the performance.

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    "the duty to obtain the license is generally assigned to the venue": where is this duty defined? – phoog Sep 16 '20 at 12:22
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Yes

The performance requires a license (17 USC 106 (4)). It didn’t have one. The copyright owner can sue the person who infringed on his copyright. That person is the performer.

As an independent contractor, the performer is responsible for their own acts and omissions. This includes copyright infringement.

As between the performer and the organizers (or the venue, or anyone else), there may be contractual or other arrangements as to who is to get permission and/or indemnification. However, that is of no relevance to the copyright owner’s rights against the performer (or anyone else). This may give the performer the right to sue someone else for breach of contract or under an indemnification clause but it is not a defense to the copyright breach.

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  • A performance isn't a copy. It's a performance, notwithstanding the fact that the right of public performance is protected by copyright law. – phoog Sep 16 '20 at 12:23
  • @phoog still 17 USC 106 (4) applies: the copyright holder is the only one who can allow performing musical works. – Trish Oct 5 '20 at 13:29
  • @Trish of course. That's the reason for the "notwithstanding" clause in my comment. – phoog Oct 5 '20 at 17:09

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