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Distinguished SOTW Member, Forum Contributor 2014
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I showed up to a quartet gig tonight. One that I've played for a couple years. Right in front of me at horn level is a giant stereo microphone set-up. Not back in the audience - I mean I could reach out and touch this thing. I didn't sign off on any sort of recording and I certainly don't know the guy setting up the microphones. So I ask him who he is and who he works for. His answer was a bit vague and a little condescending so I tell him the microphone can't be in front of me - it's going to ruin 'the vibe' of the gig. Plus it was way to close the saxophone, the mix would have been terrible. So the guy packed up his stuff and left. Not only does microphone guy leave but I seemed to have upset the guy booking the gig. He says that all the recent shows have been recorded.

Here's my questions for you pros.

1) Can bars simply hire recording engineers to record the group without permission for everyone in the group?

2) Was I wrong telling the guy that the microphone was too close and it would make performing difficult?

3) Does this sort of thing happen all the time these days? I've been gigging for 35 years and this is a first.

4) Am I now the 'difficult' saxophone guy?

Honestly it sort of pissed me off. I'm already playing for 'peanuts' now some stranger has a 'live' recording of the group that we don't control.
 

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I don't see where the owner/client has any right to record a live performance. A band I play in, actually my main gig, the bandleader frequently records the gig, makes CDs and sells them for his own profit - without ever asking the players about it or even simply informing them that its happening. Any of us could sue him over that but then we'd lose a lucrative gig to share in a few dollars from CD sales, which are minimal.
However, I have never encountered a client who recorded the group. Everything I've heard on the subject indicates it would be illegal without the 'express written consent' of the band leader (in an 'employee' situation where you actually work for the leader/owner of the band) or of each individual to be recorded in an 'independent contractor' situation' which is much more common.
In a state where the musician's union is very active, any such recording is illegal on the face of it because it meets none of the requirements of recording and the participants are not being paid scale for it plus being paid for the gig.
There are many angles to something like this but the bottom line is he cannot do it without the consent of everyone involved, and who would consent to it, knowing they would be signing away any rights they may have to the recording of their artistic property?
 

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Grafton alto | Martin Comm III tenor
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No the venue or promoter have no right at all. They would need your permission.

However they do have the right to not book you again sadly.

If it was me I would ask why they want to record. It could be they just want to use it promotionally in which case I may give permission but it would be tightly worded permission only granting specific use for a specific time.

Obviously these days you get a audience people recording on their phones and although that is also wrong there is probably nothing you the artist can do, although the promoter could stop it.

But probably wouldn’t
 

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At the restaurant bar I play the owner has started recording groups (directly off the mixer). Of course he got our permission. A few days later we get an audio recording of the performance, which is just outstanding to have.

I cannot imagine that someone would try to this this without first discussing it with the musicians. That is showing zero respect! The iphone videos can be flattering or annoying, but I would have lost it if I showed up to a gig and found myself in your position. You are not "the difficult sax guy."
 

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You have a contract? Is it a good contract, drafted by professionals? Does it specify monetary damages for unauthorized recording, which you could recover with low legal overhead?

Many reasons you don't want to go down that road, including never again working there or at any of the owner's friend's venues either.

But if you did have a contract prior to being hired, you could point to the clause as leverage to help you discuss and achieve your goal of not being recorded while remaining cordial with the owner.

"Pro" recording with the purpose of generating revenue which you will not share is wrong, but I believe many performers have found that poor quality smart phone videos posted on social media have stimulated interest in their act and so increased income.

Feels, as if gigging isn't hard enough. But step up like pros and I think you have a chance of being treated right.
 

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Many engineers record everything off the board (often without telling the artist). This is common here with the major sound companies.

There are a number of reasons for this. Usually it's not for any nefarious reason. The engineer wants to get better at his craft is the most obvious. I've been offered these recordings more than once, and these days I ask for one if not offered. The band I'm in videos every gig. If I can get a recording off the board, I'll usually blend it with the camera audio with reasonable results. I've also found that if I call in advance, I can bring a portable multi-track recorder I have and get the individual stems. I don't do it often, but it's been well worth the effort.

Of course it goes without saying that the more effort you put into capturing a good recording, the worse you play ;(
 

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Many engineers record everything off the board (often without telling the artist). This is common here with the major sound companies.

There are a number of reasons for this. Usually it's not for any nefarious reason. The engineer wants to get better at his craft is the most obvious. I've been offered these recordings more than once, and these days I ask for one if not offered. The band I'm in videos every gig. If I can get a recording off the board, I'll usually blend it with the camera audio with reasonable results. I've also found that if I call in advance, I can bring a portable multi-track recorder I have and get the individual stems. I don't do it often, but it's been well worth the effort.

Of course it goes without saying that the more effort you put into capturing a good recording, the worse you play ;(
This is probably my favorite..........

 

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Yes, I am very aware of the 'recording for pleasure' that goes on with sound companies/venues, but it should be clear to everyone on the stage that it is happening and they will be able to get a copy for their own uses (nothing shakes your tree and gets you motivated to practice/change like a recording!) at the cost of a CD or whatever, or maybe they could bring their own thumb drive, etc. As already well-explained, that should be the end of the line for that recording without full disclosure/involvement of everyone involved.
 

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I am not a lawyer, but I am an avid photographer and I presume the laws of recording sound are the same as recording visual images. So here is my take:

A person has a right to take photographs and and make audio and video recording in a public place unless it violates a person’s “reasonable expectation of privacy.” On private property the owner of the property can deny permission for a person to make audio and/or visual recordings. If there was no rule by the property owner probing the recording, then a person can record. If a performer does not want recordings made of him/her then that restriction should be made to the property owner who then makes that restriction known to patrons. It is important to note that even though the recording is the property of the person doing the recording (in the USA), they cannot be used for commercial gain.

However, what might be”legal” shouldn’t be an excuse to be a jerk, such as the awkward placement of the mics as in the OP. Also, sometimes it is important to note that those having their image or sound recorded don’t care about the law and will attempt to cause damage to the operator and/or the equipment.
 

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I am not a lawyer, but I am an avid photographer and I presume the laws of recording sound are the same as recording visual images.
Your post is an interesting one, however...I think your presumption which lumps visual image recording with audio recording (of what amounts to a 'concert', really)....plus your assumption that 'public place' and 'private property' are the only legal definitions which for-profit venues fall under - may both be questionable from a legal perspective (?)
 

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...His answer was a bit vague and a little condescending

...So the guy packed up his stuff and left.

...I seemed to have upset the guy booking the gig. He says that all the recent shows have been recorded.
So here's what strikes me as ...'puzzling'.

1) Why wouldn't BOTH the recording guy just be completely up front about it when asked ? Why would the recording guy not simply say "I was hired by the house/agent...go talk to them" .....???.........as opposed to packing up and leaving as if he had been 'busted' for something ?

2) If indeed you have played that gig many a time and the booker claimed "all recent shows have been recorded"...why didn't he just mention that beforehand ? Or before the recording dude left the venue ?

It's just an all-around strange situation. In the very least professional courtesy was absent a number of times....

(Seems to me they were just trying to get away with something, had been getting away with something...and you were perhaps the first band to call them on it, so the recording guy exited post-haste).
 

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I used to work for a university presenting program, and part of my job was to get signed releases from artists when we wanted to photograph or record them. There is NO WAY it is legal to record a performance without the artist’s permission.

I would add that, even when the artists agreed to be recorded (which they usually did), there would often be certain limitations: ie, they would allow photography during the first two songs, or they would allow recording so long as the microphones were placed out of sight or whatever.

Claxton raises an interesting point about public spaces. I think it’s pretty well established that if you’re performing in a public space—a park, or a street corner—you can be photographed without permission. I think making a recording of a performance would be trickier legal issue. The difference, I think, is that the artist could claim copywrite protections for the performance. Suppose some superstar act is performing a free show in Central Park, and announces, "Now I'd like to perform my next single, which is going to be released in a few weeks." And then somebody tapes that and releases it without the artist's permission, and millions of people download it. I think it's possible to imagine the artist could sue that person.

In my view, a lot of this comes down to common sense and etiquette. Unless you’re a superstar who keeps a team of lawyers on retainer, you’re not going to take legal action against somebody for recording you without permission. But people should still ask. That’s common courtesy. And I'm guessing that in most cases, if you ask respectfully, and you explain why you want the recording, and agree to do it in a way that doesn't affect the performance, the musicians are going to be fine with that. If you think you can just show up and without talking to anybody put your mikes on stage, that's pretty clueless, and you deserve to be sent packing.
 

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I don't know where the line is between shooting a short video clip on a cell phone (which would be almost impossible to avoid these days) and some guy coming in and actually setting up a microphone, recording equipment, and making an audio recording of your entire performance. But I would assume the latter to be totally illegal to do without your permission.

Some years back, we had that exact scenario come up. At a bar gig, a guy came in and set up a mic and intended to record our band. The bartender even noticed this and came and asked me if we wanted this to go on. I said no because I had no idea what the quality would be and what the guy intended to do with the recording, not to mention someone fiddling around with mics in front of the bandstand. I told guy who wanted to records the band he was welcome to buy one or both of the CDs we had on sale at the gig, but not to record us.
 

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I am not a lawyer, but I am an avid photographer and I presume the laws of recording sound are the same as recording visual images. So here is my take:

A person has a right to take photographs and and make audio and video recording in a public place unless it violates a person’s “reasonable expectation of privacy.” On private property the owner of the property can deny permission for a person to make audio and/or visual recordings. If there was no rule by the property owner probing the recording, then a person can record. If a performer does not want recordings made of him/her then that restriction should be made to the property owner who then makes that restriction known to patrons. It is important to note that even though the recording is the property of the person doing the recording (in the USA), they cannot be used for commercial gain.
The flaw in this analysis is that recording "sound" is not the same as recording music, which is typically copyrighted as to both composition and performance. Let's just leave it at that (I am a lawyer, but nuanced discussions of legal issues tend to founder on SOTW).
 

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The flaw in this analysis is that recording "sound" is not the same as recording music, which is typically copyrighted as to both composition and performance. Let's just leave it at that (I am a lawyer, but nuanced discussions of legal issues tend to founder on SOTW).
Excellent point, and thanks for weighing in.
 

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Another thought... your arrangements, or compositions could be stolen if you're not careful about covering yourself legally.
Had a friend whose composition was stolen internationally from a bootleg recording of her University recital.

-Bubba-
 

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Grafton alto | Martin Comm III tenor
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The flaw in this analysis is that recording "sound" is not the same as recording music, which is typically copyrighted as to both composition and performance.
But how do you record the sound of a performanace with recording the compostion and performance?
 

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The guy booking the gig should know better as other's have said here you could have legal ramifications in store for him. He should have been upfront and offered copies to you and the other band members and you might have been alright with it. I would have wanted to know what he was going to do with it? He sounds like just another D-bag club owner. If he fails to invite you back I would put out word to other musicians in "Cuse" of what this guy is up to. Maybe inform your union rep.
 
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