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Saturday, February 28, 2015 |  Madison, WI: 1.0° F  Fair
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Bootlegging Concerts on the Square in Madison
The interface between the First Amendment and copyright at a public performance
Concerts on the Square is a very complicated event from a legal perspective of copyright.
Concerts on the Square is a very complicated event from a legal perspective of copyright.
Credit:Kristian Knutsen

Wednesday evening marks the sixth and final Concert on the Square of the 2007 season, the 24th year of free outdoor pops from the Wisconsin Chamber Orchestra. And while patrons, who arrive as early as 3 p.m., drag along lawn chairs, blankets and often elaborate picnic setups, some items are strictly forbidden.

Some might be surprised that, although occurring on the most public of places in Madison, concert goers are warned against using any recording devices, including video cameras, at the concerts. "Audio and video recording of Concerts on the Square are strictly prohibited," directs the orchestra in its guide on concert etiquette.

"We have the policy because we're affliated with the American Federation of Musicians," explains Bob Sorge, executive director of the WCO. "Our agreement with them prohibits the recording or rebroadcast of any of our performances without the express written consent of the union, and in many cases an appropriate compensation to musicians." This request, he says, is standard issue for any performance where the artists request patrons not to record without prior consent.

Attendees have and do record video at Concerts on the Square, though, particularly in these days of inexpensive digital recording technology and a robust online video sharing culture.

For example, here is one video clip, shot from the middle of Pinckney Street capturing the orchestra's performance of Tchaikovsky's 1812 Overture at it's July 4 concert, complete with the requisite simulated cannon blasts from the roof of the Isthmus offices.

Or there's this brief video, shot from stage left at the front of the Capitol lawn.

Phil Ejercito, a downtown Madison resident and advocate for public photography and videography says that the prohibition on recording Concerts on the Square is questionable given the public context of the performance. "I understand, as a former musician, how performers and artists want to control their image, but you have to understand is that by playing in a venue like the Square you don't have an expectation of privacy and it's not a space you can control," he says.

"There are many things protected by copyright law that take place in a public arena, yet are nevertheless protected by copyright," asserts Jim Peterson, an intellectual property attorney at the Godfrey & Kahn law firm office in Madison. U.S. copyright law, he explains, addresses any First Amendment claims with regards to recording in the public context. Peterson says that the orchestra's performances, like those captured in these clips, constitute a work of authorship -- "something that has a mark of creation that is original to the author and is fixed in a tangible medium of expression" -- and therefore are legally protected by copyright.

Peterson also contends that copyright is likely to apply even in the case of the WCO's performance of the 1812 Overture, a composition long available in the public domain. "The work that is actually performed may be an old classic, but it might be under copyright because it is a new arrangement," he says. Additionally, he says, the actual performance can be considered an act of creation covered by copyright and certainly is so when recorded for rebroadcast on Wisconsin Public Television.

There's a big difference between claiming and actually enforcing this prohibition, though.

Sorge emphasizes that the concert series costs around $700,000 to produce every year and receives the bulk of its funding from private sources. "I think taking pictures is certainly fine," he says. "The question is when you start recording for audio or video purposes, which would be an unauthorized use of the performance. We would hope that people would respect our right to that information and the rights of the musicians on stage."

"I think that it's fine for the orchestra to ask, though one has to question why they would even bother," says Ejercito. "How many people are really making money off of high quality and video recordings like this? Pretty much anybody who is recording this is doing it for their own personal use anyways."

Given that Concerts on the Square aren't ticketed, there's also no contractual basis for saying that an attendee can't record the performance. "I'm guessing that a lot of people think they have the right to show up and shoot video," Peterson says, suggesting that enforcement would be within the purview of the Capitol. "The ability for them to stop you from recording is questionable, unless it becomes clear that you are going to record the whole thing, in which case the copyright would be violated."

Recording a portion of the concert, Peterson explains, is covered by fair use. Incidental recordings at Concerts on the Square, such as those captured by television news crews promoting the show or even by the security cameras ringing the Square are protected, as they are not created to replace the market of the actual performance. The same goes for videos like those embedded above. "Fair use is a right all the people have, so why shouldn't a citizen have the right record and post it on YouTube? It's no different from what Channel 27 is doing," Peterson says.

"Are they going to use it as a substitute for the concert?," asks Peterson. "I think the answer is clearly no in this case, it's a citizen making a comment. That's why we have fair use." Concerts on the Square is a very complicated event from a legal perspective, he explains. "It's a piece of intellectual property, but it's also a public newsworthy event."

This is a difficult issue to resolve, concludes Sorge. "If you're there and the music is incidental to the experience you're trying to capture, then it's absolutely fair use. But if you're trying to record the event and have intentions of benefiting from it, I think you're moving into an area where you are infringing on our rights," he asserts.

"It's a grey area, and I think for the most part that we expect and hope people will exercise good judgment. I hope our patrons appreciate the fine line that we're all trying to walk to be fair to the people who produce the music and have rights to it and the people who enjoy the music and want to share it with others."

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