Use of a bands name/performances/image commercially.

Discussion in 'The Adjudicators' Comments' started by Rob2, Sep 5, 2012.

  1. Rob2

    Rob2 New Member

    Following on from the announcement of the availability of the performance/video for all bands at The Open for £5/£15 and the general increase in the availability of commercial streaming/performances etc at top contests I was wondering what the legalities were in the use of a bands name/performance and image rights without there being any financial benefit to said band.

    For example: I could not use Manchester Uniteds name/performances or image rights for commercial purposes without prior agreement and indeed all Premiership clubs collectively negotiate commercial rights with Sky/Premiership.

    Does anyone know what clauses, if any, there are in The Open entry/rules regarding exploitaion of commercial rights?

    I don't have a problem at all with commercial business ventures at contests but as we know all bands lose money contesting and all would be grateful if a fair proportion (no matter how small) of profits from exploitation of their efforts were fed back to them.

    Also, perhaps if Brass Band England were looking for a future role of value to their member bands perhaps negotiating commercial agreements at contests on their behalf would be appreciated (by the top bands at least.)
  2. Anno Draconis

    Anno Draconis Well-Known Member

    Nothing in the rules as far as I'm aware.
  3. johnmartin

    johnmartin Active Member

    You are right to want to know about your image rights. You do have them and you are in control of them. However, I am sure that you might find a condition of entry to a contest requires you to sign over those rights temporarily to the contest promoters/organisers. I'm not saying its right or that I agree with it but almost certainly the contest organisers will be within the law by inclusion of such a clause.
  4. Pauli Walnuts

    Pauli Walnuts Moderator Staff Member

    Not quite - Under the Copyright Designs and Patents Act 1988, a performers non-property rights include:
    - not to be recorded live (except for private use)
    - not to be broadcast live
    - Not to be recorded off a live broadcast (except for private use)
    Performers non property rights are also non-assignable.
  5. wilky

    wilky Member

    There was nothing in the rules, but all the bands were contacted asking if any one had any objections to their performance being recorded and sold with the proceeds going towards the British Open ie not a profit making idea by brass vibe but for the good of the contest
  6. johnmartin

    johnmartin Active Member

  7. Rob2

    Rob2 New Member

    Thanks for the feedback on this.

    As is often the case enquiries like this raise further questions.

    I wonder if the bands are actually aware of their rights and the implications when permission was asked to use their audio and video of their performances.

    For example if Foden's performance is viewed 500 times then gross takings for that perfomance are £2500. Even with the winning prize money they will still have competed at a considerable loss and, you would think, still be grateful for a fair contribution after expenses and fair profit are extracted by the organisers.

    Also if you were a member of a band that did not perform as well as you liked then you may be unhappy at the performance being in the public domain for no potential reward. (Without a written agreement could a band block the release of the performance?)

    Whilst I welcome any additional investment in banding it would be interesting to see if the banding community is informed how this additional revenue is invested at The Open. Increased prize money would be fairly transparent but not benefit all bands. I fear however it may dissappear into the general revenue pot with no obvious benefits to the competing bands.

    Finally can any band confirm if it has ever been asked for permission to use its winning performance for a compilation CD? And if no permission has been asked (or refused) can a band retrospectively block the issue (or reissue) of the performance.
  8. Anno Draconis

    Anno Draconis Well-Known Member

    Well, given that it's a privately owned and run contest, there's no obligation on the owners to provide any information on how they spend the money. However, I know that the Spring Festival (for example) finds it almost impossible to avoid losses, and the British Open Solo contest (run by the same people) was a complete and utter money pit. So it may not go back into the Open specifically, but I imagine it will help to stave off disaster further down the pyramid for a few years! I'd be surprised if there anything like 500 views for any individual performance, but they might get a couple of hundred each for the top few, and maybe take £5k gross, out of which they'll have had to pay the recording/hosting costs plus some form of licencing. I don't imagine we're talking megabucks here, at all.

    Without some form of binding agreement I'm sure that individual bands or members of bands could, if they so wished, tie the Open up in legal knots regarding the use of their rights. But I bet that band wouldn't get invited back - participation, in the end, is at the sole discretion of the owners. They can amend their own participation rules at the drop of a hat. I can't imagine it's actually worth the hassle.

    Bands in the past have used recordings of their Open performance on their own CDs - Dyke's "Golden Year" CD has their performance of A Night to Sing on it - so I'm sure there's some room for agreement or negotiation. But sayng that band's might want the option to veto a bad performance is a bit like a football team wanting to refuse to have their 5-0 drubbing shown on Match of the Day. If you're prepared to put a performance out there in public to be judged by the audience and adjudicators on the day and have a bit of a shocker, what's the difference if it's subsequently available for armchair adjudicators to download?
  9. Rob2

    Rob2 New Member

    God forbid that anyone have the temerity to ask what a bands rights are.

    No one in this thread has questioned or grudged The Open's right to make a profit and as for the potential revenues we both know our figures are speculative.

    As you will no doubt be aware the majority of bands don't have the resources to tie anybody up in legal knots so a legal challenge will never happen and whether a band was invited back or not I'm sure that would depend on which band it (hypothetically) was.

    The difference between your 5-0 football analogy and a brass band is that bands (and this is the point of the entire thread) don't get any compensation/revenue from their public "drubbing".

    Bands ignorance of their rights is not good for anyone in the movement but additional hard cash (no matter how little) in their bank account is. We know for a fact that bands money is directly reinvested in training, music, equipment etc which helps sustain the businesses and individuals involved in the movement.

    It may be that the average band spend for the Open was £5k-£7k per band which equates to roughly £85k-£100k in Total. And relative to prize money/sponsorship/income contesting gets more expensive every year. You just need to look at defunct recent former Open bands Sellers, Todmorden, Sunlife, Swinton etc to know that stronger commercial partnerships that includes bands will benefit all parties moving forward.
  10. Pauli Walnuts

    Pauli Walnuts Moderator Staff Member

    Ok, so we can take the same approach with your published music? It's out there already so lets just copy it?
  11. Anno Draconis

    Anno Draconis Well-Known Member

    Easy, tiger. Jeez. I was attempting to answer your question. To put it more simply, all bands having been asked (and presumably agreed) whether publication of recordings from the contest with all revenue being put back into the contest was OK, as far as I can see they don't have any rights.

    Neither do football clubs, technically. They get a divvy up of the rights money, dependent on where they finish in the league. If they never feature on MOTD having played dishwater football all year, they'll still get their PL money. The revenue derives from entering the League in the first place.

    Anyway you miss the point. If a band's prepared to enter a contest, put a performance out into the public arena and be judged on it (and potentially have a shocker and come last) I can't see the substantial difference in broadcasting said shocker to the few hundred people interested in it. Most people are only interested in either the top few or their own band anyway.

    Speaking as a band treasurer, I imagine the spend was at least that. In the case of Sellers, Sun Life and Kennedy's Swinton, from what I remember it was the commercial partnerships (or the demise of them) that caused the downfall of these bands. The trick with commercial partnerships is that to be sustainable they have to be mutually beneficial. You could argue that putting all the money back into the contest is "mutually beneficial" in that it keeps the show on the road without having to increase entry fees.
  12. Anno Draconis

    Anno Draconis Well-Known Member

    How is that in any way "the same approach"? Anyone downloading a performance from the Open will be paying for the privilege. That's the whole point of the discussion - who owns the rights and gets the revenue generated from the downloads. Duh.

    So yeah, copy away, as long as you send a cheque for the purchase price every time you do it...

    A better comparison would be if I'd written a piece of music which I thought was rubbish, so after the first performances I refused to allow it to be performed again, published or sold (composers have repeatedly done this, most famously Saint Saens with Carnival of the Animals - he thought he would be mercilessly mocked for it). Fortunately I have low standards, so I never have an issue with this :D
  13. Pauli Walnuts

    Pauli Walnuts Moderator Staff Member

    The discussion actually is about performers rights - the brass band movement doesn't have any exemptions on this, if you don't ask my permission, you have no right to use my performance, it really is that simple. Your point that the performance error is out there anyway because it was performed in front of an audience has no bearing on whether the performance should be made more widely available.

    So, if the person downloading and paying for the performance is not paying monies to me, then that is no better than me copying your music and not paying you. Duh ;)

    And yes, to keep things on a par with the you view, I should send my cheque for your chart to the person I copied it from, not you.
  14. Anno Draconis

    Anno Draconis Well-Known Member

    The person who made it available to acquire, you mean? Or as we like to refer to them, "the publisher"?

    Photocopying it would be the equivalent of an illegal download - a bit like all the Soundcloud recordings that surface after major contests. Downloading it from a legitimate source, as in this case, isn't like copying charts, at all. Getting it off a torrent site or for free from Soundcloud would be, especially if an anonymous third party were coining it in behind the scenes somehow.

    You have a point in that the mechanism for the money getting to me from the publisher is for me and the publisher to thrash out behind the scenes - as far as you're concerned, you've paid the person who made it legally available. As with downloads. Since, in this instance, all bands have apparently given their permission for the Open to use the recordings and keep the money, their rights, and the mechanisms by which money would be paid on, are not at issue.

    Had the Open made all these recordings available for paid or even free download without seeking the bands' permission, the performers rights would have been infringed in the same way that photocopying a set of music infringes the rights of the composer arranger and/or publisher. And given the strong management in place at bands like Dyke, Fodens and Cory I'm sure m'learned friends would have been involved right smartly. But they didn't. So they haven't. Why the fuss? Unless you are arguing that bands should have the right to retrospectively withdraw their agreement if they have a mare on the day?
  15. Pauli Walnuts

    Pauli Walnuts Moderator Staff Member

    Now you are getting there - the performer with the rights isn't the band, it is the individual player. Without my permission, it is an illegal download whether you paid for it or not.
    Focusing on poor performance as a reason for not allowing this is actually a red herring as this should be about the principle of the rights of the performer. Forget brass bands, forget contests, forget bum notes.
  16. Anno Draconis

    Anno Draconis Well-Known Member

    I don't think this right - the "legal entity" as far as the performance is concerned is the band. There is no requirement for individual members to give permission if a representative of the band has already done so.

    If you couldn't provide downloads (or by extension, release CDs) without the agreement of every individual member performing on it, nothing would ever get released. It's hard enough getting band members to agree what type of coffee to buy for the half time brews.
  17. Pauli Walnuts

    Pauli Walnuts Moderator Staff Member

    Incorrect I'm afraid - our old friend Copyright Designs & Patents Act gives musicians some protection. It is a fact though that under current legislation, the requirement for that consent to be in writing was removed and now they only have to have to "reasonably believe" they have the performers consent. So, a band saying to its members "we are going to record a CD" can reasonably expect the people who turn up to the session to have implied their consent.
  18. Ianroberts

    Ianroberts Well-Known Member

    You two must of worn out your hand bags by now ! lets just hope they wernt knock off snide designer handbags though !!
  19. Pauli Walnuts

    Pauli Walnuts Moderator Staff Member

    No handbags, simply trying to give the same level of support & factual information on the rights of individual performers as this forum seems to give to publishers, composers and arrangers.
  20. Bob Sherunkle

    Bob Sherunkle Active Member

    My mind is in a walnut whirl

    Cries the walnutty professor. But later tells us that if the band gives permission for a performance to be broadcast then permission of the members is implied, which seems reasonable. So what rights does the individual performer have then? They could put a paper bag over their head I suppose. And play really quietly or mime.

    Incidently these are all things that MDs have recommended I should do over the years.

    I'm going for a lie down.