Is uploading your video of a live concert copyright infringement? COMERCIA v. HABIB

A copyright is a set of exclusive rights granted to the creator of a new work of expression. Expressive works such as music, choreography, and movies are all eligible for copyright protection. A creator is granted a copyright when they fix their expressive work in a tangible medium. This means that when a creator saves their sheet music to a hard drive, writes down the instructions for a dance routine, or records a video of their performance, they are granted a copyright to their work. Registration of the copyright will grant the creator additional right, but registration is not necessary for a copyrighted to be granted. A copyright grants its owner the exclusive right to reproduce, distribute, perform, display, transmit, and make derivative works based on the original. If someone other than the copyright owner attempts to exercise one of these exclusive rights, that can be considered copyright infringement.

Live concerts are a popular form of entertainment. Mobile phones have evolved from merely telephones to miniature television broadcasting studios. Many people who attend concerts want to memorialize the event by recording a video on their mobile phone. What concert goers do not realize is that recording the concert can be considered copyright infringement. Many people may think that recording a video of themselves is protected by fair use, in most instances that is not true. A fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner.

Fair use is an affirmative defense to copyright infringement. This means that a copyright defendant must plead the defense and present evidence to the a court to demonstrate that their use qualifies as a fair use. 17 U.S.C. § 107 of United States Copyright Law outlines the following four factors in evaluating a question of fair use: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. No single factor is determinate of fair use and courts are free to find fair use even if three out of the four factors disfavor fair use. Because the fair use factors are open to interpretation it is beneficial to study precedent to see how the courts have applied the fair use analysis to certain fact patterns.

COMERCIA BANK & TRUST, N.A. v. HABIB. 17-12418 (D.C. MA 2020) is a case that revolves around a person that recorded themselves at a concert and posted the video to social media. The defendant in this case made five recordings of himself at concerts performed by Prince. These five recordings contained recognizable portions of six musical compositions that Prince had registered with the U.S. Copyright Office. The defendant descriptively titled the videos as “[a]mazing” and “rare” Prince performances and encouraged social media users on his page to “subscribe and comment you won’t regret it!”, but did not otherwise comment on or criticize the videos. The estate of Prince sued for copyright infringement and the defendant claimed his videos constituted a fair use.

The court reviewed the fair use factors in turn and ultimately found in favor of the plaintiff. The court held first factor, the purpose and character of the use, decisively weighed against fair use. The court found that the defendant’s use was commercial in nature because the videos were posted to social media for the purpose of increasing traffic to the defendant’s social media account. The defendant’s use was found to not be transformative because the music was not altered in anyway and there was no criticism or commentary included in the defendant’s videos.

The second factor, the nature of the copyrighted work, was found to not favor fair use because the musical compositions were highly creative works that are at the core of copyright protection. The third factor, the amount and substantiality of the work used, also weighed against fair use because the defendant recorded significant and valuable portions of the musical compositions, which were essentially the “heart” of the works. With respect to the fourth factor, the effect of the use on the potential market for or value of the work, the court held that the defendant’s videos diverted traffic away from Prince’s authorized social media channel, which deprived his estate of advertising revenue.

The court granted summary judgment in favor of the plaintiff.

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