Commons:Deletion requests/File:Times Square percu.ogg
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This deletion discussion is now closed. Please do not make any edits to this archive. You can read the deletion policy or ask a question at the Village pump. If the circumstances surrounding this file have changed in a notable manner, you may re-nominate this file or ask for it to be undeleted.
No evidence of permission to record the music, which has a separate copyright from the video. Powers (talk) 00:26, 13 October 2011 (UTC)
- Hmmm. It may not have a copyright, actually. Ad-hoc compositions like that may not qualify in the U.S. (works must be fixed), the same way ad-hoc speech does not get a literary copyright. If the person was playing a known song that may be different, but it doesn't look that way to me. Performer's rights are relatively limited in the U.S.; not sure you need permission, particularly someone playing on a place as public as Times Square, without any indication that recording is not permitted. I don't see a copyright issue at all; a little unsure if there are any performer's rights issues though. Leaning keep. Carl Lindberg (talk) 05:26, 13 October 2011 (UTC)
- Why would it matter if he was playing a known song? Are you saying that if he was playing the drum part for a composition that's out of copyright, then there'd be a copyright issue? Powers (talk) 00:59, 17 October 2011 (UTC)
- Not a copyright issue, but still an issue possibly, yes. I mentioned the known song since in that case it probably would be derivative of the song regardless, or at least an unauthorized performance. The statue mentioned below simply protects "performances", without mentioning anything about the copyrightability of the content, so yes it may be a problem with an unauthorized recording of a performer, even if they are playing out-of-copyright material, or non-copyrightable material (as in this case). The statute is generally mentioned as an anti-bootlegging statute, as that was the prime focus, but the way it's worded does give broader performer's rights, at least as it goes to recording without permission. There have been a number of legal commentaries about the problems with the act, given that there are all sorts of unanswered questions with it and few answers in the legislative record. There are both criminal and civil statutes linked below; the criminal one is specifically for profit-oriented actions (the 18 usc 2319A part) so probably not a problem here, but the 17 usc 1101 portion does not have that qualification -- it is about recording all "live musical performances" without "consent" of the performers, and there are no definitions to the terms it seems. Can there be implied consent? What is a performance -- does it apply to someone singing a line as they walk down the street? A somewhat recent ruling which upheld the constitutionality of the 2319A part cast doubt on the 1101 part; William Patry wrote about it here, stating that that ruling was on the wrong basis (he claims the authority is on the Commerce Clause of the Constitution, not the Copyright Clause, meaning it really has nothing to do with copyright at all). He also states he basically authored the statute, so he's not an impartial party. This paper agrees with him; per them this right overlaps with copyright the same way trademark does, and really has nothing to do with copyright. This paper disagrees. The actual cases I've found so far are primarily against bootleggers, and I think mostly using the 18 usc 2319A law and not the 17 usc 1101 civil part, which would be the issue with us. This is, basically, a performer's rights issue. While the U.S. has not signed the Rome Convention, apparently the TRIPS agreement mandated some sort of protection, and this was the result, geared towards bootlegging but possibly including stuff like this. I really don't know; there is not much useful precedent yet, as the cases thus far seem to be clear-cut violations (with defenses on constitutional grounds) and not really exploring the boundaries. Carl Lindberg (talk) 02:06, 17 October 2011 (UTC)
- While I agree that this isn't a classical copyright issue, from a legal perspective I believe this might fall under US code 17, sec. 101, which governs "Unauthorized fixation and trafficking in sound recordings and music videos" and explicitly forbids "transmit[ting] or otherwise communicat[ing] to the public the sounds or sounds and images of a live musical performance" without permission. While someone playing on a public place might reasonably expect to be taped, that's a different matter than expecting somebody to exploit that tape, commercially or otherwise. I think it would be pretty iffy to accept that the uploader had the rights to license it. :/ --Moonriddengirl (talk) 11:59, 15 October 2011 (UTC)
- Yeah, that's the one I was thinking of, but couldn't remember where it was, thanks. 18 USC 2319A is the other part to that. That was mainly meant to protect bootleg recordings and that kind of thing, but that was also the implementation of performer's rights in the U.S. in the URAA treaty. At least one court ruled it unconstitutional (since there is no time limit on the rights, which seems to be required by the Constitution), but two others upheld it. It's not a copyright restriction, but it's possible just being on Commons violates that law. I may have to look at cases involving that law (not sure there have been many); not sure if playing on a public street like that (with no signs to ask to not be photographed/recorded) is implicit permission or not. Taking the law's wording to its literal limit would get pretty ridiculous, but I'm not sure where courts have drawn the line -- this is clearly something of a performance. But deletion should be based on that law and that law alone -- I don't think there is a copyright issue. Carl Lindberg (talk) 00:41, 16 October 2011 (UTC)
Delete - infringes on the performer's rights. /Pieter Kuiper (talk) 19:48, 29 October 2011 (UTC)
Deleted: Enough questions have been raised as to the state of the law in the U.S., and how it would apply here, that there are significant doubts as to whether the uploader had the right to license it as (s)he did. Skeezix1000 (talk) 13:40, 4 November 2011 (UTC)