LEGAL GUIDE
Written by attorney Rachel Marie Stilwell | May 6, 2013

How To Remove Unflattering Bootleg Videos of Your Performance From YouTube

If you're a musician who performs live in clubs at least a few times per year, odds are you have discovered videos of you playing your instrument on YouTube, whether or not you gave anyone permission to record your performance. On any given Saturday night in most clubs, there are at least a few audience members using mobile phones to record videos of live musical performances. Most such audience members do not get the permission of the performers before recording. Some even upload such videos to YouTube within a day or two of the gig - unbeknownst to the recorded performers.

YouTube can be a great promotional tool for musicians who want to show their performances to a wider public than can fit in a single live venue. But often, videos taken without permission at clubs are poorly filmed with lousy sound quality and bad editing. To the extent that performers are credited at all on YouTube listings, names are often misspelled. Such videos hardly represent musicians the way they would like to be presented on the Internet. Some musicians see unauthorized "bootleg" live video recordings as unwanted competition for live recordings that the musician himself/herself is producing at significant expense. But what's a musician to do?

If you own some portion of the song being surreptitiously recorded, your copyright in that song is being infringed when it is recorded without your permission. Under such circumstances, you can demand that YouTube must take down the offending video immediately, or risk significant financial liability for copyright infringement. Under such circumstances, YouTube usually is quick to remove the allegedly infringing material.

The YouTube form you can use to make a complaint of copyright infringement can be found here: http://www.youtube.com/t/dmca_policy. You could also threaten to sue the person who recorded and/or distributed the video without your consent, but such litigation can be both extremely expensive and risky. Moreover, most musicians don't want to alienate their loyal fans with threats; they just want to remove unflattering videos of themselves from the Internet. So most musicians stop their efforts after sending a form complaint to YouTube.

However, if someone takes a video of you without your permission, you don't own the copyright in the video or in the sound recording that you hear when watching the video. So if you don't own any portion of the musical composition being played in the recording, you don't have a viable copyright infringement claim and you won't be able to get YouTube to take the video down on that basis. If your objection to the video on YouTube is the fact that a recording of your performance is being distributed without your permission, the nature of the violation of your rights is called "bootlegging" rather than copyright infringement.

18 U.S.C. Section 2319(a) makes bootlegging a criminal offense. Under this statute, one who knowingly, and for commercial purposes, "fixes" the sounds or images of a live musical performance, without the performers' consent, may be imprisoned for up to five years. A live performance is an "unfixed" performance but the act of recording the performance is an act that "fixes" that performance. Section 2319A also authorizes five years imprisonment for anyone who, for commercial purposes and without the performers\u2019 consent, transmits or distributes such recordings.

17 U.S.C. Section 1101(a) imposes civil penalties for the unauthorized recording of live performances or the transmission or distribution of such recordings. Unlike the criminal statute, this civil statute requires neither that the bootlegger "knowingly" made the unauthorized recording nor that the bootlegger acts for commercial advantage or financial gain. The civil statute provides that anyone who engages in the prohibited acts is subject to injunction, impounding of bootlegged materials, money damages, costs and attorney fees, "to the same extent as an infringer of copyright."

YouTube does not have a "Bootlegging Complaint" form similar to its copyright infringement complaint form. But YouTube does have a general "Non-copyright Legal Complaint" form that can be found here: http://support.google.com/youtube/bin/request.py?contact_type=otherlegal.

If you want to get a video of yourself removed on the basis that your performance was recorded and/or distributed without your permission, use this YouTube form. In the section of the form that asks you to cite the specific law being violated, provide links to the federal criminal anti-bootlegging statute here: http://www.law.cornell.edu/uscode/text/18/2319A and also to the civil federal anti-bootlegging statute, here: http://www.law.cornell.edu/uscode/text/17/1101. When the form asks you to describe what rights of yours have been violated, state that the video is of your live musical performance and that it was taken and distributed publicly without your permission. Such complaints are generally addressed by YouTube within a few days, usually resulting in the removal of the offending bootleg video.

If you find that bootleg videos of your performances are being distributed on the Internet through a channel other than YouTube, send the company a letter by email stating that your complaint is based in the federal anti-bootlegging laws cited above, and demand that they remove the offending videos promptly.

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