There’s another brouhaha brewing over the Royal Scottish Pipe Band Association cracking down on exploitation of their events. We say “another” because it’s nothing new.
Dating back to the 1990s, or even the 1970s, when the association created its first commercial recording of the World Championships, confusion has resulted over who owned the content and who had the right to commercialize it.
The RSPBA has always contended that competing bands waived their rights when they enter their competitions. The association puts a disclaimer on the entry form to the effect of “By entering this competition you hereby . . .”
Strictly speaking, they might think this safeguards them from anyone capturing and reproducing “their” content, but, legally, every member of every band has the right to control their performance, even if it is with the ensemble group.
If any band wanted to make a legal challenge against the RSPBA regarding the use of their music for commercial purposes, it would probably be a slam-dunk. But of course no band would ever do that, since the last time (that we know of) that a lawyer-member of a band had the temerity simply to point out the legality (or illegality, as the case might be), simply because they thought they should be aware, the lawyer’s band was threatened with suspension.
That was in the pre-internet days, even before the era of having video in the palm of your hand.
Today, anyone can play journalist, and bring their followers on Facebook or Instagram live video of piping, drumming or pipe band performances. There are several problems with this. First, the “event” remains the RSPBA’s. You need their permission to share or reproduce it to a public audience. However, if the RSPBA granted permission, it would be valid only after the association received permission from every piper and drummer performing. (See above legal point.)
Second, if permission were granted, the content is still copyright. Distributing that content to a public audience requires a license, even on Facebook or YouTube, which continually thumbs its nose at copyright law in other ways, but will indeed shut down your live-stream if it finds that you are abusing the rules.
The problem or opportunity, depending on your perspective, is that most pipers and drummers relish the “exposure.” They’re so used to having their rights trampled on that they simply don’t care, and they’re not prone to making a fuss over what would amount to a small amount of royalties, at least for the performers. That doesn’t make ignoring their rights permissible, but it does make it presumptuously easy.
A further complication is that you need permission from the owners of the rights to the tunes themselves – the composers (unless they have signed over their rights to a music publisher to manage and promote their music, in which case you need the publisher’s permission to use the music). There are very few composers of pipe music who have a publisher, though. The exception would be something like “Highland Cathedral.” But when a copyright piece is reproduced and monetized on YouTube, as long as a composer has registered their work as a member of a rights society, they will eventually receive a royalty payment via Shazam-like digital fingerprint technology recognizing when their music was used.
pipes|drums has brought videos to our viewer/readers/listeners. These are reproductions, not live, and with each we have sought the permission of 1. The “owner” of the event, 2. The performer(s). Out of principle, we offer compensation to each party – a “direct license.” Occasionally, bands and soloists refuse the payment, but most are happy to get something that is fair to all.
While pipes|drums is nonprofit, we budget to compensate solicited performers on video, photographers, videographers and writers. If terms are not acceptable, we move on. We would rather do things the right way, than step on the rights of performers and copyright holders. Events generally consider the publicity that pipes|drums brings to be great value in itself, but we would not presume that.
We’ll always consider their request for sponsorship, but if the return on investment isn’t there, again, we’ll move on. We did that when the Livingstone Invitational demanded $400 in addition to the payment that we would make to each of the performers whose performance was used. That’s the prerogative and right of the organizers, and we assume that they had acquired the proper legal live music licenses, provided lists of tunes played to the licensor(s), so that the performers and the creators of the music could receive royalties that they earned, however small they might be.
We recognize that great content attracts an audience, and that audience in turn attracts advertising and subscribers, and advertising and subscriptions create revenue. And those who own and/or created the content deserve to receive at least some of that revenue.
Mainly because live-streaming is a detailed and generally expensive thing to license properly and legally, pipes|drums has not done it. We have been invited on many occasions to stream events, and someday we will – but only with the proper permissions and licenses in place.
Just because technology makes something easy, does not make it right.
Over the years, we have consistently worked to defend and further the rights of pipers and drummers,
and encouraged our continually growing industry to do things the right way,
to act professionally, and, most of all, to respect each other.
Just because technology makes something easy, does not make it right. Over the years, we have consistently worked to defend and further the rights of pipers and drummers, and encouraged our continually growing industry to do things the right way, to act professionally, and, most of all, to respect each other.
In the RSPBA’s example, they have every right to protect their content. The thing is, it is not theirs to protect until they secure proper legal licenses and permissions from the performers and copyright owners.
Unfortunately, the internet is largely based on exploitation. “Disruptive” technologies might be fun and titillating, but generally they rip off people by undermining laws. The underbelly of the music industry has exploited musicians forever, and pipers and drummers are no exception.
Until we all work to respect each other, seek and obtain permissions, and compensate fairly, piping and drumming will continue to be exploited, even by other pipers and drummers and the very associations that are supposed to advance what we do.
December 31, 2006
By the book? New Scots Guards Collection raises copyright questions
November 30, 2012
Is the World’s killing the pipe band world? Part 2
May 31, 2011