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Thomas Swartz
Thomas Swartz, Attorney
Category: Legal
Satisfied Customers: 3176
Experience:  Twenty one years experience as a lawyer in New York and New Jersey. Former Appellate Law Clerk.
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A band leader video taped a rehearsal I was singing in and

Customer Question

A band leader video taped a rehearsal I was singing in and did not ask me, nor tell me at the time.
JA: In what state did this occur?
Customer: After I found out he agreed to stop sharing on boxdrop with other band mates. Los Angeles California He then turned around and posted them on facebook again without my consent
JA: Have you talked to a lawyer yet?
Customer: He was warned by our school (we attend a music college) and upon his warning he posted two more videos I have not. I just want to know what the law is here and what it's called
JA: Anything else you want the lawyer to know before I connect you?
Customer: I htink that's it for now
Submitted: 5 months ago.
Category: Legal
Expert:  Thomas Swartz replied 5 months ago.

Hello Customer,

There is a provision of the U.S. Copyright which would apply to this situation. Under 17 U.S. Code Section 1101, someone is not allowed to video tape (or make any other type of recording) of a live musical performance without the permission of the performers, and then make that video tape available to the public (such as posting in on a blog or social media site). This would be considered an infringement of the performer's rights to copyright. So, when the band leader made a video tape of your rehearsal and posted it, he violated your copyright rights.

So, if the band leader is told this and warned that if he does not remove the videos, he could face a copyright infringement lawsuit, he would likely quickly take them down.

I hope this answers your question.


Customer: replied 5 months ago.
Thank you! This was a band that he put together and they are his songs I'm singing, but my interpretation of them. Does this copyright law still apply?
Customer: replied 5 months ago.
Also in his Facebook post, he says states to the public that it is a song he wrote and that we are his band at rehearsal etc.... I am no longer in this band. Again does this law protect me. As I am typing this he still has the video's up and has "warned" me that he will do what he pleases with all video footage he has of "his" songs, his band. Which includes any video footage I am in.
Expert:  Thomas Swartz replied 5 months ago.

Unfortunately, this changes this situation. If he wrote the song himself, he would own the copyright to that song. And the ownership of a copyright in the song would include the right to have the song performed and recorded. So, since he owned the rights to the song itself, he had the right to record a performance of that song, and distribute it publicly.

Sorry if this is not what you wanted to hear. If you were performing another song, one he did not write, then the law above would apply.


Customer: replied 5 months ago.
It was a "rehearsal"... it was practices where I am just starting to learn the song and they are my melody interpretations of the songs. I did not sign an legal document that he has any rights to my image. He set up his phone camera without my knowledge and video taped those practices. Then he posted it facebook after I asked him not to.
Customer: replied 5 months ago.
In other words it is not a performance and I was not asked nor told I was being video taped. Also one of the videos is of me sitting there listening to him talk about the song. He has no right to my image and he doesn't have his adlib speech copyright and I'm in that video. Don't I have any rights to my image?
Expert:  Thomas Swartz replied 5 months ago.

It would still be considered a performance, but under the copyright code 17 U.S. Code Section 106(4), (5), and (6), the owner of the copyright in a particular song or motion picture has the right to publicly perform that work (the song or motion picture).

Now whether or not your image was taken without your permission might be important if your image was captured in a place where you had an expectation of privacy. This usually means if you are in your own home or in a private place such as a bathroom or changing room. Otherwise, someone can take a video of you if you are in a public place even without your permission.

There is one other possibility. California does have a state law which prevents someone from using your image without your permission if the image is used for the "purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services." This is known as your "right to publicity" and the law is found in California Civil Code Section 3344. You should take a look at the Section. If the bandleader used your image to advertise or sell anything (including the song itself) without your permission, then I think you would have a good claim to ask him to take down the video. I would perhaps look to this California law.


Customer: replied 5 months ago.
it was an expectation of privacy. In a rehearsal room at our Music College, of which they have their own rules. And again he did not say he was video taping. And we are not paid band members etc.. He is just a student on a class project and I was learning his song for the project, again basically co writing at this point because I was making up different melody lines to suit my voice. How does he have so much right over my image, presence etc... He then posted the video without my permission. I asked him to delete the video footage and I asked him to take it of social media. He has sense threatened me via text and has told me he will do what he wants. How can this be right?
Expert:  Thomas Swartz replied 5 months ago.

You might also try threatening him with violating California's Wiretapping Law - California Penal Code Section 632. This law prevents someone form recording "confidential communications" unless all parties to the communication give their consent.

Under this law, a "confidential communication" is defined as:

"any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering * * * , or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded."

You might be able to successfully argue that since this was only a rehearsal, you had no idea that this might be recorded. If the recording was against the rules of the Music College, then you definitely would have a reasonable expectation that you would not be recorded. Since this is a criminal offense, you would have to bring your charge to the local prosecutors. But if you bring this law to the attention of the band leader, he may become frightened enough to remove the video.