Are phone videos killing the concert vibe?

By Melissa Ruggieri

Atlanta Journal-Constitution

ATLANTA

Stacy Daxe entered Sting’s recent Atlanta concert as a fan and left irritated.

Not at the singer/bassist, who brought fans on a tight, two-hour romp through his historical career, but at the audience that ruined her experience.

So aggravated was Daxe, of Smyrna, Ga., that she went home and quit Facebook.

Why? “My enjoyment was marred by idiots filming the concert and posting links to their Facebook status,” Daxe said. “It was annoying, rude and quite ridiculous given the fact that the quality of those videos was so poor, even Batman wouldn’t have been able to see them.”

It’s a common sight at concerts in the modern technology era. Smartphones, iPads, even a few antiquated cellphones are no longer merely an accessory to make a phone call or send a text.

At concerts, they’re seemingly a necessity — a vessel to capture a few minutes of musical history for some or, for others, a reason to brag to friends on social media, “Hey! Look where I am!” Some venues have always maintained policies that photo equipment with detachable lenses are prohibited. This season, they’ve added tablets to the list of forbidden items because of the high-quality video the devices are capable of taking and because their placemat-size screens are more than a bit obtrusive when positioned midair for optimal recording.

Still, what most concertgoers may not realize is that the two-minute video they posted of Steven Tyler rocking “Dream On” might be breaking the law.

The Copyright Act states that there is no statutory exemption for personal use in this context, so don’t assume that the law doesn’t apply to you.

“In general, the person who owns the copyright in the musical composition embodied in the video has the exclusive right to publicly perform it, reproduce it and distribute it,” said Margaret R. Marshall, shareholder and entertainment attorney at the Atlanta branch of Greenberg Traurig law firm.

Different types of civil liabilities exist under the Copyright Act, including actual and statutory damages and attorneys’ fees.

And, said Marshall, “Under the Copyright Act, it could be on a per infringement basis.”

Makes you think twice about all those Facebook posts, doesn’t it?

But Marshall pointed out that while those who record concerts and slap them on a public social-media site likely are infringing, at a minimum, on the musical composition copyright, “Is the artist going to go after everyone? No, it’s pragmatically impossible.” She also noted that while yes, artists’ public performances and/or distribution of their musical compositions would be copyright infringement, often times legal issues may arise only when the work is distributed commercially — unless other circumstances are involved.

But before you email that video to your friends, know that unauthorized recordings of live musical performances may violate state laws, including anti-bootlegging statutes and copyright and publicity rights laws.

“I wouldn’t show my bootleg recordings to anybody,” Marshall said. “Any commercial distribution or nonprivate performance becomes a problem.”

While some concert attendees who don’t record concerts often view the practice as both selfish and inconsiderate, there are those who find no harm in recording a song or two - often citing a keepsake as their reason.

“It’s no different than taking photos,” said concertgoer Angela Oliver. “If you were at any public event — a relative’s graduation, a political rally, a sporting event — would you not want to capture that experience with a snapshot? Some people can’t afford to regularly attend concerts, so if someone gave them a ticket or they won it and might not get a chance again [to go to a show], why not shoot a few seconds of video to preserve that memory?”

But what about the artists? How do they feel when they look out from the stage and are greeted, not by people singing along to a hit song or interacting, but by the backs of thousands of smartphone camera lenses?

“I find it very, very strange,” said Ed Robertson, lead singer of Barenaked Ladies.

“I think people are far more engaged with their gadgets than the place they’re in and the experience they could be having. I love the Foo Fighters and went to see them. Dave [Grohl] goes out on this long stage, and it’s just a sea of people holding up phones and cameras. Why don’t you make eye contact and not worry about tweeting about it? I hope the novelty of this connection and technology will wear out and people will realize that the authentic experience is so much more rewarding.”

Fred Schneider of the B-52s is equally baffled by fans’ priorities and has found it increasingly difficult over the years to maintain their attention.

“It’s obvious that people don’t even care if you’re singing or lip-syncing up there,” he said. “I get so angry with that and think, ‘Why am I up here?’ We will take down anything we don’t like from YouTube. It’s a selfish [practice] by fans. It’s all about them. We’ll have people hold up iPads during the show, and I’ll stop the show and say, ‘Put that away and just get out.’”

Other artists, such as Richard Marx, a veteran singer-songwriter and touring presence for more than 20 years, said he completely understands fans’ infatuation with wanting a digital souvenir.

“If I could have done that all of the years I was going to concerts, I would have,” he said.

In this everything-must-be-reported-within-seconds world, the recording and posting of concert footage sometimes has another inadvertent effect: The element of surprise when going to a live show is all but destroyed.

Years ago, fans didn’t even have a clue what songs might be played at a concert unless a friend attended an earlier date and reported back. But sites such as www.setlist.fm now provide nightly set list updates for most major artists, while acts with the inclusive jam-band mentality, such as the Dave Matthews Band, will keep a live running set list on their websites during each show.

Of course, fans have the option to ignore these sites, just as they can disregard any YouTube postings that expose the plane bursting into flames near the start of Roger Waters’ “The Wall” show.

Footage recorded at concerts and posted on YouTube is subject to a series of copyright rules and safe harbors. The user uploading the content is responsible for assuring that he has the rights necessary to post the content. However, Marshall noted, “unless a rights holder properly objects, YouTube has systems in place to recognize pretty well this type of copyrighted material, and they’ve figured out ways to monetize it. If they can’t figure out a way to monetize, they may just block it.”

Still, it’s a frustrating game for those on the planning end of major events.

Tony Clarke is an Atlanta-based tour manager who, for 20 years, has worked with various festivals and tours, including as production director for the Savannah Music Festival and the annual Wade Ford Summer Concert Series in Mableton, Ga.

He laments the days when “no audio/video recording” signs were prominent at live music events and remarked that even though an announcement is made at the start of the Savannah Music Festival to remind attendees that recording is prohibited, the request is frequently ignored.

But he finds the erosion of the overall fan experience even more exasperating.

“I recall a tour stop with an A-list artist that featured special effects that wowed the audience because they were never-before-seen effects,” Clarke said. “Because of smartphone recordings and YouTube postings, the show lost its surprise element by the fourth date on the calendar.”

Then again, there are those who view the availability of such visuals on sites such as YouTube as promotional opportunities for an artist to hype a show or new album.

But for all of the musicians who don’t fret about fans illegally downloading music or posting portions of their concerts on social-media sites, there are those who remind the public that the music business is exactly that — a business.

Jesse T. Hall, a longtime Atlanta singer and trumpeter, said it infuriates him to hear his craft discussed as if it’s merely a hobby.

“Just because it appears to be recreational to a lot of folks, a lot of hard work, dedication, blood, sweat and tears go into it. It’s never a good thing to record any music without permission,” he said.