Copyright algorithms ensnare indie musicians doing livestreams—what to do?

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I predicted this weeks ago as the COVD-19 shutdown began. My daughter is among the musicians whose livelihood was sledge-hammered, reducing her income stream dramatically. She and her sister work fulltime as musicians, so they knew they had to act quickly to downsize a gigantic loss. The answer, as many have found, was obvious. Livestream shows on Facebook, and maybe, just maybe they could hang in there long enough to keep the business alive.

The first words out of my mouth had to do with algorithms and social media flags on sites like Facebook.

“You can’t do covers,” I told them. “Unless they’re in the public domain, like some of the early blues and folk songs.” I didn’t have to tell either of them that because they were aware of the situation.

I also told both girls how lucky they are—they have a sizable catalog of original music. The plus with this shutdown has been gaining time to refine and arrange those new originals taken from their ever-growing notebooks of compositions. I think they enjoy the writing as much as they do any part of music.

Exceptions could be made if you could get written permission to perform a song, but that, of course, would be a fairly involved process if it’s a chart topper.

They started their new Facebook show—‘Live from Ja’Ville’—with a fully original set. Having decided to do a weekly show, it was a given some supporters would want to hear covers. I like certain songs they do too, so I understood, but I recall during one show, I put up a comment in response to a cover request. I explained that copyright law prohibited them from doing covers, especially in quantity.

The good news for the girls always came from originals, though, and they’re requested at live shows and in their livestreams.

As the Covid-19 shutdown continued, I watched a number of shows on Facebook, and I was concerned at much of what I saw. Musicians who are very skilled often didn’t have many original songs, not nearly enough to fill an hour or so. I considered warning people, but I didn’t want it to look like I was raining on anyone’s parade, or trying to disadvantage musicians who chose songs like those my daughters perform.

As an aside, I’d add I’ve never in my life been envious, on my behalf or on my children’s. My rule for them as they grew up was the same rule my mother taught me.

Compete with yourself for your personal best.

Today I became aware of a couple Facebook takedowns and flags levied on very talented musicians. Bear in mind there doesn’t need to be a human flagging you—there’s an algorithm for that, just as there is for almost everything on Earth these days. It is true that someone else can flag you for various reasons—this has happened to me before. The couple times I was flagged, Facebook restored the post because I’d done nothing wrong.

While the US music industry and many celebrities give the idea they’re your BFF, this is pure public relations. Sharing the wealth looks good on screen, but many can be very aggressive when it comes to protecting their own wealth.

Right now, live streaming is the only viable option for so many musicians whose livelihood has been destroyed. For one violation, you’ll likely get off light. But continued violations could result in permanently disadvantaging you.

Even big companies like Peleton have been caught in the copyright snare. I noticed on Facebook one musician who did a Michael Jackson song was flagged, and another musician posted about his own woes regarding copyright.

I’ve wondered if you broadcast from a venue where payment has been made to ASCAP or to BMI if that would cover the copyright issue, but frankly, I doubt it would because a case can be made that broadcasting it on a different platform (as opposed to performing it on a stage in a brick and mortar facility) constitutes a different medium.

I have for several weeks attempted to get details on what is acceptable and what isn’t. I haven’t been very successful. Here’s good advice from Twitch—it applies across media platforms:

“When broadcasting on Twitch, you should create content that is original or you can share content that you are authorized to broadcast. Content that involves replicas, derivative creations, or performances of others’ copyrighted content may violate another’s intellectual property and be subject to a takedown by a rights holder.”

Note that on Facebook’s Livestream info page, there is a link to Facebook’s “free globally licensed library of music and sound effects.”

The US Library of Congress digital archive is also a treasure trove of audio, and copyright information is usually included for each work archived there. Just plug the genre into the search bar—first drop down the menu and choose ‘audio recordings’—and go from there.

It seems natural to say to yourself, Everyone else is doing it, why can’t I? Copyright just doesn’t work that way, especially if you’re doing a show that is 90 percent covers.

The indie music industry is among the hardest hit in this shutdown period. I don’t have any answers, but I would hope that if there is money to spare in taxpayer dollars being distributed, indie musicians who work at it fulltime would get some of the funds.

(Kay B. Day/April 29, 2020)

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