Hi Jordan,

You are on the right track of it being a case-by-case question of looking at each work on the recital/concert.  I am not a lawyer, but I spent many years as a music librarian and have examined several different institutions’ takes on how much risk they are willing to take on with their concert/recital recordings. There’s multiple layers to examine, and the level of risk varies as to how an institution justifies being able to make the recording to begin with and how widely they justify being able to distribute that recording. In what I have seen, to openly stream recordings as you are exploring, the safest thing is to ensure that a) the underlying musical work is public domain, b) the edition/arrangement are public domain, and c) there is some sort of agreement with the performers.

Here’s more details on those things:

1. Mechanical rights: Performance license (like ASCAP and BMI) do not include the right to record a work at all.  A mechanical license is needed from the rights holder if a work is under copyright. Live-streaming of a concert (without making an on-demand stream or physical recording afterwards) can fall under the performance license/broadcast license if a campus has one. In practice, some schools of music will take the angle of justifying the creation of a recording as fair use for educational use by the performers/teachers during class time or study time in the library. For theater performances, if a school rents scripts/scores (as is the case with most contemporary works), the right to create one video recording from one-camera angle is often included for educational use when the school signs the agreement with the rights holder. In either of these cases, I have seen institutions use their local policies for creating and distributing Copyright Section 108 preservation copies to guide how they handle the concert/recital recordings. In this, the institution’s definition of “library premises” comes into play on whether they stream at all or how widely they stream behind a login wall.

2. Copyright status of work and arrangement: To deem a musical work to be public domain, you need to look at the copyright status of both the underlying musical work as well as the copyright status of the particular edition of that musical work. For example, if your orchestra performed from a pre-1929 edition of Beethoven’s Symphony no. 9, that would be fine. Beethoven works are public domain and the older edition is also public domain. If the orchestra performed the same work but with a 1929 or after edition, the editing of that score is likely subject to copyright and mechanical rights would need to be sought from the rights holder. Same logic follows with arrangements of works. Even if the original work is a public domain folk song, the orchestration or arrangement likely has a copyright from the publisher/arranger.

3. Rights of performers: Performers have rights to their performances. Professional record producers will use a work-for-hire scenario where the performers sign their rights over to the entity creating the recording. Several schools of music will have students agree to some sort of statement at some point in their education saying that their performances are able to be used by the school. Guest artists or other non-school clinicians who visit campus also have rights and permissions need to be acquired from them (or included in their guest artist agreement) to allow both creating and distributing a recording.

Again, there’s a wide range of how much risk an institution is willing to take. But public domain works, public domain editions, and performer agreements are the safest route to facilitate open streaming.

Syracuse University