Street performances -- can I put them on my blog?

Last week I received a question from JD Lasica. He asked me "If I videotape a street musician performing in public, can I post it to my noncommercial blog without asking his permission? Out of courtesy I would, but can he control use of his public performance? What about other people?" I had some thoughts, and I decided to post what I had to say.(1) Copyright. For copyright it depends on a couple facts. In the first instance, there is generally no copyright interest in a street performance because (presumably) the performer he has not "fixed" (e.g., recorded) his performance in a "tangible medium of expression" (e.g., on a videotape, or disk). That's the good news, but don't get excited yet. There are two other copyright problems you may have. But these only arise if the performance you record is considered a "live musical performance". The 2 problems arise under section 1101 of the Copyright Act and the criminal anti-bootlegging statute that congress passed a number of years ago (Title 18 USC 2319A).

Section 1101 requires "consent of the performer" if you "fix the ...sounds and images of a live musical performance" (which is what you've done in making the recording, assuming it's a "live musical performance" – more on that at the end of this paragraph). It also would require consent if you "transmit ... to the public" (which is what your blog would do). So, unfortunately, despite the performer's lack of other copyright interest (since he presumably has not fixed the performance himself), you would (likely) need his permission to make the recording and then post it on your blog. If the performer tries to assert these rights, you might argue that you have an implied license. Since the street performer is performing in an openly public place, and he (presumably) sees that you and others are video-taping him, you probably have a good argument for an implied license to "fix the sounds and images". But whether you have a further implied license to then "transmit it to the public" is a more difficult. I don't know the answer off hand, but in this day and age, doesn't everyone know that if they are doing something interesting in public and it's being video-taped it'll end up on the internet sooner or later? (That last bit is not sound legal reasoning, but I think you get the idea.) A final question related to section 1101 is what constitutes a "live musical performance" triggering the rights under this section. The Copyright Act is, unfortunately, not clear on this. There's no definition of the phrase “live musical performance”, and the term "perform" is broadly defined. I don't know the answer specifically, but I'd say that if the performer is not singing or playing any sort of “music”, you can try arguing that the performance doesn't fall within this section because it's simply not "musical". This has not, to my knowledge, been tested in the courts.

For the criminal anti-bootlegging act, the definition of "trafficking" requires a transfer of the bootlegged performance "as consideration for anything of value." This suggests to me that if you're only using the videotape of the street performer non-commercially, then you are not providing the copy on the blog "as consideration for anything of value" and thus likely not in violation of the criminal act. (BTW, this criminal act is the subject of some recent litigation. The act arguably violates the copyright clause of the constitution because it gives someone a time-unlimited right to control a public performance (it's a Constitutional “limited Times” argument). This issue is working its way up through the federal courts as we speak. See Copyfight.

(2) Right of Publicity. The performer may try to claim a right of publicity. This right requires consent before using someone’s likeness, image, voice etc. for commercial purposes. I think you're safe on for 3 reasons (at least under California law). First, your use is "not commercial" (speaking conservatively, this means that you receive NO $$$ from the blog that is hosting the tape). The Right of Publicity in California extends only to commercial uses of one's identity/image/likeness/voice etc. Second, you have the added fact that he's performing in an entirely public place without any restrictions, he sees that people are photographing him and video-taping him and says nothing. This is a weaker argument, that may not provide a strong legal defense, but the facts are compelling as flavor to support the position that his performance was unrestricted. Third, there's an exception in California to the RoP for "any news, public affairs, or sports broadcast or account, or any political campaign." So, if your blog is considered "news reporting" then you'd fall within that exception (o my knowledge, this has not been tested in court), or, if the street musician happens to be a political candidate then your your probably clear under this statute.

(3) Trademark.This is a bit of a stretch, but the performer may claim trademark interests. For example, if he's wearing clothing that identifies himself and his trademark for services (performances?) he provides, then your putting them on your website might suggest an affiliation with him. The key for TM infringement, however, is likelihood of consumer confusion. Unless you're a competing performer and putting a video of him on your blog (e.g., to suggest an affiliation with or endorsement by the street performer), then you're not going to come close a situation of consumer confusion.