An artist with a registered copyright has the right to take legal action against someone who is copying or distributing her work without permission. A person who records or distributes copies of a performance of copyrighted music—a digital copy of a live concert, for example—without the artist's consent is subject to criminal and civil remedies under the United States Copyright Act. State laws may add extra penalties and remedies to a case of music performance copyright infringement, as per Chapter 11 of the Act.
Unauthorized Performance Recordings
Making an unauthorized recording of a live music performance for any reason, including public viewing or sale of performance video, audio or images is a violation of U.S. copyright laws. This includes transmission of a music performance without actually recording, such as streaming video directly to a public website using a device, tape-recording, and other methods of audio or video recording.
Read More: Sound Recordings & Copyright Law
Personal Performance Recordings
If a person makes a recording of his own performance of another person's music, he still needs permission from that copyright holder. However, if the music is in the public domain, permission is not needed. The public domain consists of works no longer under copyright. The copyright may have expired on its own or the artist may have failed to renew the copyright. Copyright terms vary by type of work and year created. For example, music published before 1923 is now in the public domain, but music published after 1977 might remain copyrighted for seventy years after the artist's death.
The Copyright Act allows copyright holders to get a civil court injunction to stop the infringement—for example, a court order directing a website to take down a video of a live performance—and seize all the unauthorized materials, such as DVD copies. The artist can sue in civil court for damages arising as a result of the infringement but must chose between receiving actual damages or statutory damages. Actual damages are the total amount of money the court determines the holder lost and the infringer gained. Statutory damages are monetary awards the court can give the copyright holder regardless of how much the artist actually lost because of the infringement. At the time of publication, the maximum award for statutory damages is $150,000 per work, if the infringer willfully committed the act.
A person who committed copyright infringement with respect to music performances may face criminal penalties. If the infringement was committed so the person could profit or gain a commercial advantage, or if he reproduces one or more works within a 180-day period that have a total sale value of over $1,000, he's subject to criminal penalties. A person who knowingly prepares a copyrighted work for distribution over a public computer network is also subject to a jail sentence. Criminal proceedings must be started within five years of the infringement.
Criminal sentences vary, depending on the amount of copies produced, the method used and the retail value of the copies. Sentences for copyright infringement for profit or commercial advantage at capped at 10 years; sentences for reproduction over a 180-day period are capped at three years for a first offense and six years for a second; and sentences for network distribution can't exceed five years for a first offense and ten years for a second. All sentences might include fines at the court's discretion.
- Dr. Ronald B. Standler: Music Copyright Law in the USA
- U.S. Copyright Office: Sound Recordings and Music Videos
- U.S. Copyright Office: Copyright Infringement and Remedies
- Cornell University Law School: Criminal Infringement of a Copyright
- University of North Carolina: When U.S. Works Pass Into the Public Domain
- John Howard/Digital Vision/Getty Images