Your favourite song builds to its crescendo, sending chills down your spine. Unable to resist the urge to immortalize the experience, you instinctively reach for your phone, eager to capture (and share) the magical concert moment across your socials. Safe to say that in this moment of ecstasy the last thing on your mind is copyright.
Australia’s Love Story with Taylor Swift hit fever-pitch last week when the Eras Tour arrived in Australia. Following her concerts in Melbourne on 16-18 February 2024, social media and the internet have been awash with concert attendees’ photos and footage of the concert.
With hundreds of thousands of Swifties armed with smartphones poised to memorialise the iconic concerts by taking photos and videos, it is an opportune moment to consider which parts of a live concert may be protected by copyright, whether there are any risks of copyright infringement associated with taking photos and videos (and sharing them online), and the approach to copyright taken by some artists (including Ms Swift).
Does taking photos or videos at a concert infringe copyright?
In short, the answer is yes – taking photos or videos at a concert could infringe copyright, in some circumstances.
However, there’s no need for Taylor Swift fans to panic. The copyright owner (or their licensee) can remove any risk of copyright infringement by authorising certain activities – which is exactly what Ms Swift has done.
The promoter for the Australian Eras Tour states on its website that “taking photos/videos on small hand-held cameras and smartphones is permitted“. However, that permission does not extend to using professional camera equipment, or video or audio recording equipment (other than hand-held smartphones).
Given not every music artist or performer is as generous or social media-savvy as Ms Swift, it’s worth taking a moment to consider what rights exist in a concert, and how concertgoers can sometimes accidentally end up on the wrong side of copyright law.
Which elements of a concert are protected by copyright?
In the case of concerts, copyright may protect many of the things you see or hear during the performance, including:
- the lyrics of a song (literary work);
- the text shown on screens/banners (literary works);
- the choreography of the show and the dances (dramatic works);
- the musical arrangement or composition of the songs (musical works);
- the images shown on the screens (artistic works);
- the costumes, sculptures and set designs (artistic works);
- any pre-recorded audio used during the concert (sound recordings); and
- any videos, animations or other visual media shown on the screens (films).
If copyright protects any of the above elements of a concert, then taking a photograph or video of the concert, and sharing that photograph or video online, without the permission of the copyright owner or licensee, may infringe that copyright.
Which acts may infringe copyright?
In Australia, the Copyright Act 1968 (Cth) grants the copyright owner the exclusive right to reproduce (make copies of works) and communicate works to the public (eg. upload and share it on a website or social media).
If you perform these acts in relation to the whole or a “substantial part” of the work without the copyright owner’s permission, then you may be at risk of infringing copyright.
So which acts by concertgoers might infringe copyright?
- Taking photos/video – By taking a photograph or video of the concert, you may be making a reproduction (copy) of a substantial (recognisable) part of the copyright-protected material.
- Posting photos/video online – If your photo or video reproduces a recognisable part of copyright-protected material, posting or sharing that photo or video online without the copyright owner’s permission, might infringe copyright on the basis that the copyright-protected material has been communicated to the public without permission.
- Live-streaming – If an unauthorised live-stream of the concert captures a substantial (recognisable) part of a copyright-protected work (eg. musical works) or other subject matter (films / audio-visual works), this will also constitute an act of communication to the public and public performance, requiring the consent of the copyright owner in order to avoid liability for copyright infringement.
Are any defences available?
The primary defence to copyright infringement is where the copyright owner or licensee has approved the alleged infringing conduct. That is, photographing or filming Taylor Swift’s concert with your smartphone, and posting that footage on social media, would be copyright infringement, if it wasn’t for the concert promoters expressly authorising that conduct.
Statutory defences to copyright infringement are more limited in Australia than the United States. Unlike the United States, there is no general ‘fair use’ defence in Australian copyright law. Instead, to avail itself of the “fair dealings” defences under Australian law, a concert-goer would need to establish that taking or sharing of the photo/video was a ‘fair dealing’ for the purpose of research or study, criticism or review, parody or satire, or reporting the news.
Whether an unauthorised use of copyright-protected material is “fair” under Australian law will depend on the manner in which it is used (eg. whether it is commercial in nature / whether it uses all or only part of the work). For most concert-goers, taking a photo for the memories (and posting it on the socials for bragging rights) is unlikely to fall within one of the limited “fair dealing” defences under the Copyright Act.
But surely we have permission – everyone does it?
Many musicians, concert promoters, and venues allow fans to take photos at concerts. However, it’s important to check what is and isn’t allowed before assuming that photos or video footage can be taken. Aside from any copyright infringement issues, conducting in certain behaviour at a concert might also be a breach of the contractual terms and conditions that the concert-goer entered into when buying their ticket.
One way to check whether you are allowed to take photos or videos is to review the terms and conditions for the event or on the venue’s website. Sometimes these terms and conditions are also printed on the back of the concert ticket.
Take-home messages
Taylor Swift knows All Too Well the value of her intellectual property. However, for Taylor Swift and other performers, there is a fine balance between allowing fans to capture the moment and share in the spectacle (and thereby generating a buzz of anticipation for the performance), and protecting the commercial value of the works and officially licensed channels of commercial exploitation.
In reality, it would be in our Wildest Dreams that a concert-goer would be pursued for copyright infringement, unless the conduct was particularly egregious or on a commercial scale. For instance, an attempt to re-release a film to compete with the authorised concert film, Taylor Swift: The Eras Tour, (in relation to which Disney recently paid for the exclusive streaming rights) would not be ignored.
Perhaps the most important thing to consider for anyone attending the Eras Tour, over any legal issue, is the issue of ‘concert etiquette’ – you are more likely to get in trouble from the people around you if you are disrupting their view and enjoyment of the concert. Even more importantly, the real risk in taking photos and videos of the concert is in missing out on enjoying the live spectacle that is the Eras Tour.
This article is the final article in DCC’s Swift Series and forms part of DCC’s Music and IP initiative.