A little more than a year ago, I wrote about the nascent business of CDs being burned and sold right at the concert venues. It looked as though this would be a new area that would get some early traction–no less than Clear Channel was backing the largest effort.
Last month, I had occasion to write about non-disclosure agreements, which are becoming a fixture in the touring sound business as celebrity outstrips talent and Rolling Stone gets regularly scooped by the Enquirer when it comes to pop star reportage. As it turns out, the live-concert disc idea is still trying to figure itself out, and Britney Spears remains legally married–at least, for now. However, there is another legal/legislative complexity looming around concert recordings that has implications for the live sound industry. In September, a U.S. District Court judge ruled that a 1994 Federal anti-bootlegging law is unconstitutional. The case specifically addressed the sale of unauthorized recordings on CD of live performances. Judge Harold Baer decreed, in an 18-page decision, that the law as it stood "violates both the fixational and durational limitations" of Federal Copyright legislation, and because the law as it stands apparently "procures seemingly perpetual protection for performers," and, by implication, composers and anyone else who stands to participate in copyright-based revenues.
As I write this, major news outlets are reporting that a U.S. lawyer has filed a suit on behalf of at least one member of the boys' school choir that sang on Pink Floyd's 23-X platinum album The Wall. He is beseeching other members of that choir, who sang the backgrounds to that classic track in 1979, to come forward and participate in the suit, with the stated intention of getting back royalties (and certainly
interest and penalties) for their work on the song more than 25 years ago. (The school got a lump sum payment at the time of an undisclosed amount, and was awarded a gold record acknowledging the choir's participation.) The litigious morass spawned by the
file-sharing phenomenon has become a legal Petrie dish, with all sorts of related (and barely related) legal actions and rulings stemming from it. Judge Baer's recent ruling is one of them, and until it is challenged
successfully, it upends the notion of the bootleg recording. On one side is the judge's opinion, staunchly supported by no less than Laurence Lessig, the Stanford law professor who has been a highly vocal opponent of attempts by the content industry (record labels, movie studios, et al.) to restrict any limitations on the scope and term of copyrights. This is same cabal that has helped Disney, for one, successfully lobby for copyright extensions that let it benefit that much longer and widely from its trademarked characters and other intellectual property. They are up against an increasingly large block of activists–legal, social and corporate–who assert that the erosion of limitations on copyrights stifle the growth of an alternative music and media industry, one necessary to replace the antediluvian one that watched the digital revolution sail right over its head.
The live-concert bootleg business was never a massive one; according to the media-manufacturing trade mag MediaLine, concert bootlegs at the height of their
popularity a couple of decades ago were manufactured in quantities of around 4,000, intended to service the entire country's demand for the hot discs. This first run,
distributed via a clandestine network of aficionados, would typically sell out in four months or so, with the next round of pressings declining commensurately with waning demand. The desire for the discs was a function of the recentness of the concert being bootlegged; the next show or tour would spark an entirely new round of bootlegs. Some touring bands, most notably the Grateful Dead and Phish, openly encouraged the recording of shows and the creation and distribution of bootlegs. They are a dying breed in an era when
concertgoers find that security is confiscating their video-camera-equipped cell phones upon entering the venue.
The FOH console remains a prized source of concert recordings, and even if the average fan has no idea what the acronym stands for, he or she knows that the glowing platform in the middle of the hall is one of the best places to hear and record the performance. I doubt that the ruling will change that, or change the fact that live sound mixers have become painfully aware that they live with the potential for liability during every tour, every show. Nevertheless, it bears repeating, at a time when the live show has become a focus of the never-ending battle over intellectual property and copyrights. If Judge Baer's ruling stands–and that's a big if–it could possibly be regarded as a defensive tool in the event board recordings are bootlegged. But the best defense is not letting it happen in the first place. That's a shame, because those recordings serve many legitimate purposes, from helping the mixer and the artist improve subsequent performances to being keepsakes that are milestones in a career. But erring on the side of caution is, for better or for worse, the way to look at the music business now.
