Quarter-Notes from the Apocalypse, Part 4 – E Tu YouTube?
by David Sabella
So, you’ve set up your studio to be able to collaborate online. You have all the proper hardware, your Internet speed has been optimized, you have taken care with the production value of your setting, you are collaborating with a fellow artist, and you are ready to deliver a performance product. Be careful! Again, in the words of my esteemed colleague Roy Sander, “Just because you can, doesn’t mean you should.” And in this case, you might not be able to, legally.
For all the right reasons there has been an explosion of live music happening online, on Facebook, on YouTube, on Instagram, almost every known social media platform is being commandeered by performing artists, expressing themselves and comforting others in these very trying times. They are uplifting the human experience and helping ALL of us to get through this pandemic, which we all hope will soon end, returning life back to normal. Right?
But what if there is a “new” normal, as many of the experts predict? Just today the league of producers announced that Broadway shows will continue to be shut down until June 7, 2020. And this date may very well be extended as there have been rumors of not opening Broadway until after Labor Day. And even after that, will audiences be comfortable and ready to enter a crowded theater, where only one COVID-19 infected person could expose hundreds of other people? Until there is a vaccine, it seems that physical distancing, and online collaboration and performance, are here to stay.
This brings up the issue of legal responsibility when dealing with copyrighted material, and music performance rights as defined by ASCAP (The American Society of Composers, Authors, and Publishers).
When performing in a theater, nightclub, cabaret room, or even a school, you are covered by that institution’s agreement with ASCAP. However, such an agreement does not exist when you perform online, even if you are performing the show, or excerpts of a show, that you originally did at an ASCAP club. YouTube, and Facebook state clearly in their terms of service (the fine print) that you must own the rights to any material that you put on their platform, and/or you must fully disclose your lack of rights, which indemnifies them, and basically hangs you out to dry. E tu, YouTube?
Now, I know what you’re thinking. YouTube has been around for over a decade already, and it is literally filled with singers of all ages performing covers of well-known songs. The difference is in the monetization, or lack there of, of that material. If you are performing material that is covered under public domain, and/or you are not requesting payment per view, then you have nothing to worry about. But if you are performing material under current copyright, and you are monetizing your channel, or requesting (in your video) a contribution to your Venmo or PayPal account, etc, then eventually somebody is going to come looking to get paid.
This practice has run rampant during this recent COVID pandemic. And I am certain that in these difficult times ASCAP has more to worry about and scouring the Internet for pirated performances of music. But sooner or later, as this becomes more and more the norm, and performers turn to online platforms for actual income, the issue of performance rights will take center stage. If you are considering consistently, and professionally (for money) performing online, then you must take this into account and plan accordingly.
I am currently in discussion with several different clubs, producing entities, and even ASCAP itself to determine ways to move forward, under this new paradigm. I have learned that for approximately $300 per year one can purchase an ASCAP licensing agreement for your website. This agreement would allow you to live-stream performances and/or deliver previously recorded performances from your own website, under an ASCAP licensing agreement. I do not know whether this agreement can be applied to a specific YouTube channel, or rather if it is only for your specific website domain name. But at first glance this option seems like a very workable solution. For more information on this please reach out to ASCAP directly.
Further financial legalities remain to be determined and standardized, including compensation, per live-stream performance, or per view, for the creative team (music director, director, band members, etc).
These are but a few of the considerations we all need to keep in mind as we move forward in this new performance paradigm. However long we find ourselves here, whether COVID-19 is in fact a blip on the history of mankind, or the introduction into a new world order, it seems clear that there are many options and possibilities for growth in both the art and commerce of singing in the age of COVID-19.