If while walking down the street, I see an individual or a group playing music for all to hear, am I allowed to film their performance and upload it to YouTube? Will my video constitute copyright infringement?
In analyzing this issue, I will respond to three questions: (1) What kind of music is being performed? (2) Is the performance being recorded by the band? (3) Is my recording and upload covered by any exception to copyright law?
To start with, let's try and figure out what rights, if any, does the performers have. It’s very rare that as an observer you would have rights not granted to the performer himself. So If I understand what rights the musicians have, I am more likely to understand what rights the observer has.
Why? A copyright only exists once a performance is fixed in any tangible medium of expression. That’s another way of saying that it is recorded. So a live performance that is not being recorded is not copyrighted. On the other hand, a musician who is recording his live performance as either audio/video, will have a copyright in the live performance. So if the musicians are not recording their own performance, I, the observer, can feel confident enough that the live performance is not subject to a copyright and I may be able to record and upload the video to YouTube.
Now it's obviously not that easy. A live performance may result in at least two separate forms of copyright. One copyright is in the performance and one copyright is in the song itself that is being performed. Whoever wrote and composed the song has copyrights beyond those in the actual performance of the song. If you’re listening to an original song, it's likely that the performer has copyright in the song and lyrics. But … if you’re listening to a cover song, a song first composed and sung by different artists, the original artists are likely to have the copyrights to the song.
Why does that make a difference? Because while we may have the right to record and upload the performance, do we have the right to record and upload the song. Otherwise, the performance would be uploaded without any audio components. A silent performance may not be the most interesting video to watch.
If you’re listening to an original song, the performer would have the right to record and upload a video. But can you? Not unless you have some license granting you that right. Since it's performed on the street, is it the same as saying that he granted the listeners some implied license to record it? Maybe. Has he granted you an implied license to upload it to YouTube, essentially broadcasting it? Not likely. So while you might be able to upload the performance, you may not be able to upload the audio portion of the performance, unless you can argue that given the fact that the performance is on the street, the artists granted you some implied license to record and broadcast the song.
And what if the performance is of a cover song? Then the copyright is owned by the original artists and not the performer. The performer is likely performing the song under some form of a mechanical license or an exemption therefrom. Under a mechanical license, the performer may be able to record his audio rendition of the song too; but, unless he acquired sync rights dealing with the video recordings, he is not likely to have the right to upload a video of his performance to YouTube. That means that neither can you. Sorry.
Just because you’re seeing a live performance on the street does not mean that you can record and upload a video of the performance to YouTube. You might be able to upload a copy of the performance without the audio components of the song, but not include the full performance.
Now … isn’t there some exception I can rely on? What about fair use? Fair use will not permit you to record the full performance. If your video includes only small portion of the performance with a review or news-style reporting on the performance, maybe fair use will apply. But you can't rely on it to record and upload a substantial part of the performance no matter how “fair” you think it is.