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Comment by aidenn0 | Hacker News Reader

Photographs are protected not because of the artistic choices per-se (since there are artistic choices e.g. of a model posing as well) but because it is in a fixed form.

A live performance is not copyrightable, but a video recording of a live performance is. Even if there was no significant artistic choice in the setup: for example, if you setup a camera on a tripod so that the entire stage is in view and record it, you've got something copyrightable.

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It should be noted that a performance can infringe on copyrights though. If you cover a song, even in a much different way at any venue that charges a cover, that venue or the artist is obligated to pay royalties. Not unsurprisingly, many low-budget all-ages venues have been hit hard by lawyers from ASCAP for amounts that would put them out of business. I know a few venues I went to as a teenager had a very, very strict "no covers" policy, as ASCAP went so far as to hire people to visit the 100 person venue and listen for cover songs, and then send a bill for the annual license to the venue if they heard them. I think the annual license was somewhere on the order of 5-6k or for a venue of that size.

"Charging a cover" is not relevant to determining whether the performance is a "public performance" for copyright purposes.

No, but the amount of royalties you pay is somewhat dependent on it.

Interesting. So those live performing concerts prohibiting audience recording have no legal standing? But the audience recorded videos have the copyright?

Their standing is that they sell you a ticket on the condition that you will not record the performance (or that you're not allowed to have a recording device on your person).

Possibly, but the music being played (and, thus, the audio recording of said music) is copyrighted. Maybe if you disabled the microphone?

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