Nicolette Crouch, Associate Member, University of Cincinnati Law Review
Two decades ago, concrete, parking lots, and dirt surrounded the Riverfront Stadium, where the Reds played. Today, restaurants, hotels and apartments, office space, Great American Ballpark, Smale Riverfront Park, Paul Brown Stadium, and a street car route attract people to Cincinnati’s riverfront. The Banks currently generates over $1.6 billion in economic activity each year. The Banks development committee hopes to draw even bigger crowds in 2020 by adding a concert venue along the riverfront.
The venue will be located next to Paul Brown Stadium, feature indoor and outdoor event space, and have capacity to host different events at the same time. As the new venue brings performers that may have skipped Cincinnati in the past, many concertgoers will likely memorialize their concert experiences by recording and sharing concert footage on social media platforms like Facebook and Instagram. But most concertgoers do not realize that posting footage of live musical performances likely constitutes copyright infringement. Even though performers, music publishers, and recording studio companies are unlikely to bring legal action against individual audience members, concertgoers should be aware of relevant copyright laws that protect live performances and why these laws exist.
This article guides concertgoers through copyright laws that govern the kinds of live concert performances that will soon bring down the house at The Banks concert venue. Part II focuses on The Banks concert venue and provides an update on where the deal currently stands. Part III reviews copyright laws connected with live musical performances. Part IV explains how copyright laws impact audience members’ experiences at concerts. Finally, Part IV wraps up by explaining how the local community will benefit from The Bank concern venue.
II. The Banks Concert Venue Deal
The goal of mixed-use development projects like The Banks is to convert worn or underutilized real estate into destinations for living, working, and playing, which generates tax revenues for local governments. Development of mixed-use projects typically requires coordination between local government authorities and private individuals or entities, each of whom may hold conflicting rights. Consequently, bringing The Banks concert venue into reality implicates several key players, including Hamilton County, the City of Cincinnati, The Bengals, Music & Event Management Inc., a subsidiary of the Cincinnati Symphony Orchestra (“MEMI”), and Hilltop Basic Resources, a concrete and gravel facility that is located across the street from Paul Brown Stadium.
After months of negotiations between Cincinnati City Council and the Board of Hamilton County Commissioners, in November the City Council approved the concert venue plan and a development agreement that will allow for the venue to be built on the riverfront. The concert venue is expected to cost $27 million and is slated to open in fall 2020.
The path to the City Council’s approval was not without challenges. Public discussion about the concert venue began in 2015 and quickly led to disputes between city and county leaders about the complicated deal. Because Hamilton County and the City of Cincinnati share joint interests in the riverfront land, city and county leaders disputed who should build the concert venue. Although Cincinnati Mayor John Cranley wanted PromoWest to lead the venue’s development, the Joint Banks Steering Committee ultimately chose MEMI to build the concert venue. MEMI currently operates and promotes live entertainment at venues across southwest Ohio, including Riverbend Music Center, PNC Pavilion, and the Taft Theatre.
City and county leaders also disputed the location of the concert venue and related issues. Because The Bengals are tenants in Paul Brown Stadium, owned by Hamilton County, The Bengals enjoy rights that provide the team with influence over what can be built in the vicinity of the stadium. The Bengals agreed to allow the concert venue to displace current tailgating space. In exchange, Hamilton County agreed to purchase Hilltop’s riverfront land for the team to transform into parking space and possibly a new indoor practice facility. This means that Hilltop must relocate after 51 years of operating at the company’s current location. However, in October the City Council blocked Hilltop from relocating to the west side of Cincinnati.As of the date of this article, Hilltop has not disclosed whether the company has secured a relocation site for its operations.
Despite uncertainty regarding Hilltop’s relocation, the show must go on, and it will, under agreements between The Bengals, Hilltop, the County, and the City.
III. Overview of Music Copyrights
Through copyright protection, Congress aims to promote progression of the arts by granting authors exclusive right to their works for a limited time. From a commercial perspective, copyright protection incentivizes authors to create and market their works. Copyright law protects original works of authorships that are fixed in a tangible medium.
Through the Copyright Act of 1976 (the “Act”), Congress extends copyright protection to two separate and distinct types of musical creations: “musical works” and “sound recordings.” A musical work refers to an artist’s musical composition and accompanying words (hereinafter, “Musical Composition”), while a sound recording is a recorded performance of that composition into a tangible medium. For example, the Musical Composition “Bohemian Rhapsody” and a recording of Queen singing “Bohemian Rhapsody” are distinct works for purposes of copyright law. The music and lyrics are part of the Musical Composition, while a recording of Queen performing that composition is a sound recording.
A copyright holder enjoys a series of exclusive rights, including the right to reproduce the work, the right to perform the work publicly, and the right to display the work publicly. The reproduction right grants the copyright holder control over the creation of copies of the work. The public performance right grants the copyright holder control over the manner in which a work is publicly performed. Finally, a copyright holder has the exclusive right to control the public display of a work. Generally, any unauthorized exercise of these exclusive rights constitutes copyright infringement.
IV. Concertgoers Guide to Copyright Issues at Live Performances
After The Banks concert venue is opened in late 2020, artists will undoubtedly look out among the crowd and view a sea of fans armed with cell phones recording the performance. After all, many fans wish only to capture the moment. Although the performance of a Musical Composition during a concert is protected by copyright law, a concertgoer’s act of recording a performance does not infringe upon any of the performer’s exclusive rights related to the live performance. Indeed, an audience member who records the performance actually owns the copyright in that recording under the Act. However, concertgoers should be aware that some activities which go beyond merely recording a live performance may implicate copyright issues.
First, uploading or sharing on social media platforms or the Internet any recording of the live performance implicates and infringes upon the copyright holder’s reproduction rights under the Act because the concertgoer is creating a copy of the artist’s work. Second, streaming the live performance on social media platforms or the Internet infringes upon the copyright holder’s public performance right because the audience member is transmitting the Musical Composition. Finally, uploading or sharing on social media platforms or the Internet any recording of the live performance also violates the copyright holder’s public display right because the concertgoer is displaying the artist’s work.
Additionally, although not directly implicated by copyright law, artists whose performances are recorded without permission can bring action under the civil bootlegging statute and seek money damages and other civil remedies. Despite violations of the Act or civil bootlegging laws, artists are generally uninterested in filing lawsuits against their fans. The most likely consequence of uploading a recording of a live performance that a concertgoer may experience is a takedown request from the copyright holder of the Musical Composition. However, an increasing number of artists have partnered with concert venue management to restrict cell phone and camera use during live performances to protect copyrighted work. In those circumstances, concertgoers should comply.
If The Banks concert venue deal is properly executed, the attraction will incentivize concertgoers to arrive early, stay late, and of course, spend more money. Artists’ live performances at the concert venue will serve as a catalyst to generate needed tax revenues for the City of Cincinnati and Hamilton County. All that the performers ask in return is for concertgoers to use social media etiquette.
Amanda Seitz, After a decade, taxpayers have invested $135M in The Banks. Did we get the return we were promised?, WCPO CINCINNATI (Aug. 15, 2017), https://www.wcpo.com/longform/after-a-decade-taxpayers-have-invested-135m-in-the-banks-but-private-investment-has-lagged.
Bowdeya Tweh, Another new project launching at The Banks, The Banks Cincinnati (Aug. 26, 2015), http://thebankscincy.com/another-new-project-launching-at-the-banks/.
Paula Christian, Who was to blame for Hamilton County’s $821k legal bill last year?, WCPO CINCINNATI (Oct. 1, 2019), https://www.wcpo.com/news/local-news/i-team/who-was-to-blame-for-hamilton-countys-821k-legal-bill-last-year.
See David Winter, Hamilton County reaches deal on Hilltop relocation without city, WKRC Local 12 (Oct. 9, 2019), https://local12.com/news/local/hamilton-county-reaches-deal-on-hilltop-relocation-without-city.
Sharon Coolidge, Here’s what that proposed Banks music venue might look like, The Cincinnati Enquirer (Oct. 3, 2019), https://www.cincinnati.com/story/entertainment/2019/10/03/banks-music-venue-heres-sneak-peek-plans/3846496002/.
See Maxine Hicks and Andrew L. Much, Stadium development can breathe life into urban areas, DLA Piper (Dec. 12, 2018), https://www.dlapiper.com/en/us/insights/publications/2018/12/stadium-development-can-breathe-life-into-urban-areas/.
See Sharon Coolidge and Scott Wartman, Banks Music Venue gets final council approval. Set to open fall 2020, The Cincinnati Enquirer (Nov. 21, 2019),https://www.cincinnati.com/story/news/politics/2019/11/21/cincinnati-new-music-venue-banks-approved/4258194002/.
Chris Wetterich, Let the music play: Banks venue gets final approval, CINICNNATI BUSINESS COURIER (Nov. 20, 2019), https://www.bizjournals.com/cincinnati/news/2019/11/20/let-the-music-play-banks-music-venue-gets-final.html.
Scott Wartman and Sharon Coolidge, ‘The music venue moves forward without delay.’ County approves agreement with Bengals, concrete company, The Cincinnati Enquirer (Oct. 8, 2019), https://www.cincinnati.com/story/news/2019/10/08/banks-music-venue-agreement-reached-hamilton-county/3907816002/.
See Christian, supra note 3.
MEMI, Cincinnati Symphony Orchestra, https://www.cincinnatisymphony.org/about/report-to-the-community/memi/ (last visited Nov. 22, 2019).
Christian, supra note 3.
SeeWartman, supra note 11.
Paula Christian, If this riverfront company can’t relocate, will The Banks ever get a concert venue?, WCPO CINCINNATI (May 16, 2019), https://www.wcpo.com/news/transportation-development/move-up-cincinnati/if-this-riverfront-company-cant-relocate-will-the-banks-ever-get-a-concert-venue.
Chris Wetterich, Council votes to kill land swap that would make way for music venue; here’s what it means, CINICNNATI BUSINESS COURIER (Oct. 2, 2019), https://www.bizjournals.com/cincinnati/news/2019/10/02/council-votes-to-kill-land-swap-that-would-make.html.
See Winter, supra note 4.
Wetterich, supra note 10.
U.S. Const., art. I, § 8, cl. 8. “The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries….”
See Frank Moraes, Copyright Law In 2019 Explained In One Page, Who Is Hosting This (Oct. 24, 2019), https://www.whoishostingthis.com/resources/copyright-guide/.
17 U.S.C. § 102(a)(2) (1990).
17 U.S.C. §§ 102(a)(2), (7) (1990).
17 U.S.C. § 106 (2002).
What rights do copyright owners have?, Copyright Alliance, https://copyrightalliance.org/ca_faq_post/rights-copyright-owners-ata/ (last visited Nov. 22, 2019).
17 U.S.C. § 501 (2002).
17 U.S.C. § 102(a)(2) (1990).
This article assumes that a concertgoer has not been authorized or is otherwise allowed under the law to exercise any rights listed in Section 106 of the Act.
See 17 U.S.C. § 106(1) (2002).
See 17 U.S.C. § 106(4) (2002).
See 17 U.S.C. § 106(5) (2002).
17 U.S.C. § 1101 (2006).
See Rachel Stilwell and Makenna Cox, Phone Recordings of Concerts Are More Than Just Annoying, They’re Potentially Illegal: Guest Post, Billboard (Mar. 3, 2017), https://www.billboard.com/articles/business/7724330/phone-recordings-concerts-illegal-federal-bootlegging-laws.