Can Performers Do Anything About People Recording Them?

It's become an epidemic.

If you've been to a musical festival lately, you've probably had your view of the stage blocked by a veritable forest of arms holding cellphones aloft to record the show. Or maybe you are a patron of more highbrow places, like theaters and symphony halls, and have seen how cellphone recording is creeping into those spaces as well.

Judging by appearances, it looks as though a lot of people are OK with recording performances. But it also looks as though artists, increasingly, are growing fed up.

Take Anne-Sophie Mutter, for instance. The great classical violinist was performing with the Cincinnati Symphony Orchestra on Sept. 29 when she halted her performance of Beethoven's Violin Concerto because a woman seated in the front row was recording her with a cellphone. When the woman arose to speak, CSO president Jonathan Martin (who was seated nearby) escorted her out.

As it turns out, Martin was clearly within his legal bounds in banishing the woman because the orchestra has a clearly expressed policy that recordings are not allowed. But in later comments to the New York Times about the incident, Mutter claimed that she had legal rights as well. Recording her live performance, she said, violates her own property rights.

So is Mutter correct?

Apparently so.

Musicians Can Ban Phones

Federal law (17 U.S.C. § 1101) is quite clear about it, saying that anyone who records, transmits or distributes sounds or images of a live musical performance has infringed on the performer's rights and is subject to civil remedies "to the same extent as an infringer of copyright."

So why, then, are so many people allowed to steal? Maybe because cellphones have just become so pervasive in everyday life. And maybe because enforcing the law selectively against specific individuals in a crowd would probably not result in good publicity.

Besides, as attorney Rachel Stillwell and her clerk Makenna Cox point out in a Billboard article, other legal potential legal entanglements await any artist who might decide to enforce their rights.

"For example," they write, "if an audience member takes a video of a concert without permission of the performers, the performers don't own the copyright in the video or audio that has been captured. Rather, the person who records the video owns the copyright in that video. So what is a performer to do? Nobody wants to litigate."

What they can do, the authors say, is forbid audiences from recording their performances. And apparently that knowledge is catching on, because more and more performers are doing it.

Among the better-known musicians and bands who don't allow recordings are Beyoncé, Bob Dylan, Cyndi Lauper, Alicia Keys, Jack White, Bjork, Neko Case, and Wilco.

A Middle-Ground Solution?

Many artists who hate the phones but don't want to alienate too many people have offer audience members a service called Yondr, which allows them to keep their devices stored in a locked pouch that can be unlocked, if necessary, in an outer area of the venue with a special wand.

The anti-phone artists, however, are getting pushback from people who contend that they, too, have rights because they oftentimes pay extravagant ticket prices.

But if artists say "no phones," the law is on their side. And people who object will just have to stay home. Or find more devious ways to record.

Related Resources:

• Ban Cell Phones While Driving? (FindLaw's Litigation and Disputes)
• Data on Cell Phone Not Protected by the Stored Communications Act (FindLaw's Legal Technology)
• Cell Phone Privacy and Warranty Requirements (FindLaw's Learn About the Law)
• Constitutional Limits to Cell Phone Searches Incident to Arrest (FindLaw' s Practice Guide)