Confusion： Is concert audio recording okay？
Recently, a celebrity posted a series of Weibo, expressing his views on whether audio recording, video recording and photography should be banned at concerts, which has aroused widespread discussion. The opinions of netizens vary. Some think that since they have paid for the concert, they should be in charge of themselves, and that taking photos and recording videos is only for sending Moments and should not be restricted. Some think that since they come to listen to live performances, they should respect the requirements of the performers, fully commit themselves, and should not use mobile phones. Some netizens think that audio recording and video recording infringe the copyright of the organizers, but photography is not used for profit, does not violate portrait rights, and prohibiting photography is a bit overkill. Can you record, video or take pictures when watching live performances? How is it defined in law?
"Note to the audience" is a contract
On the back of the performance tickets purchased by the audience, most of them are printed with "Audience Instructions", the most common clause of which is "Without permission, audio, video and photography are prohibited on the spot." This type of audience information is actually a format contract between the ticket seller, the ticket buyer and the user. The so-called format contract refers to a contract that is pre-drawn up by one party for repeated use and cannot be negotiated by the other party at the time of signing. Like the tickets we often come into contact with, the "Audience Instructions", "Visiting Instructions", "Park Instructions" and "Passenger Instructions" in the ticket are all format contracts. Because of its wide use, it is generally tacit that after appropriate prompts, the ticket buyer has been informed and approved of this type of contract requirements at the time of ticket purchase.
Maybe everyone is a bit "talking about the tiger changing color" when it comes to the format contract, but if the party providing the format clause exempts its liability, increases the liability of the other party, and excludes the main rights of the other party, the format clause should be invalid. If the format clause is valid, then when the ticket holder accepts the contract, it should abide by the requirements of the corresponding clause; if it is invalid, the ticket holder is not bound by the invalidation clause. So, in the "Audience Notice", the "No audio, video and photography on the spot without permission" clause is invalid?
Unauthorized audio and video recordings infringe copyright
Copyright includes the right of publication, the right of authorship, the right of modification, the right to protect the integrity of the work, the right of reproduction, the right of performance, the right of information network dissemination, the right of filming, the right of compilation and other rights. Article 38 of the Copyright Law of the People’s Republic of China stipulates that performers have the right to license others to broadcast live and publicly transmit their live performances and receive remuneration for their performances; the right to license others to record and receive remuneration for their performances; the right to license others to copy and distribute the audio and video products of their performances and receive remuneration; and the right to license others to disseminate their performances to the public through information networks and receive remuneration. At the same time, Article 47 stipulates that without the permission of the performer, live broadcast or public transmission of his live performance, or recording his performance, is an infringement, and shall, according to the circumstances, bear civil liabilities such as stopping the infringement, eliminating the impact, apologizing, and compensating for losses.
According to the above legal provisions, in a narrow sense, unauthorized audio and video recording during live performances is an infringement; and in a broad sense, the author believes that static designs such as stage arrangement, performance costume design, and performer modeling during performances also condense the creative work of the organizers, making public the results of a large number of intellectual activities of the organizers of the performance department, and restricting photography are also acts of performers and organizers to protect their own copyrights.
When the audience purchases tickets to watch the performance, they actually enjoy only the right to watch the artistic performance provided by the performer and the organizer, and do not obtain the authorization to copy, record and disseminate the performance. The above format clause does not exclude the main rights of the audience, just as when visiting a museum, there are some exhibits that can only be appreciated and not allowed to be photographed due to the fact that the copyright has not expired.
Therefore, whether from the perspective of copyright protection, or from the perspective of the legality and rationality of format contracts, audiences should abide by the regulations prohibiting audio recording, video recording, and photography. Especially now that live broadcast software is very popular, many live audiences broadcast live performances through software platforms without permission, which directly infringes the copyright of performers.
Due to the above reasons, it is recommended that the general audience carefully read the "Audience Instructions" when watching live performances such as concerts, concerts, and dramas, abide by relevant regulations, do not use cameras, mobile phones, and other electronic devices to record, respect the intellectual achievements and legitimate rights and interests of others, and at the same time bring themselves a better viewing experience.
Unauthorized photography or infringement of portrait rights
Does taking photos at concerts infringe upon the image rights of celebrities? When it comes to portrait rights, everyone is not unfamiliar with it. Article 100 of the General Principles of the Civil Law of the People’s Republic of China stipulates: "Citizens enjoy portrait rights, and without their consent, they shall not use their portraits for profit."
But it does not mean that other people’s portraits can be used at will without the purpose of profit. Article 120 of the General Principles of the Civil Law also stipulates: "If a citizen’s right to name, portrait, reputation, and honor has been infringed, he has the right to demand that the infringement be stopped, his reputation be restored, the impact be eliminated, and an apology be made, and he may demand compensation for the loss." In fact, the right to portrait, like the right to name, is an exclusive right. Without his permission, others cannot use it at will. That is to say, in the absence of illegal obstacles (such as retention of evidence, coverage, and the issuance of a "wanted notice" by the public security organ, etc.), the production, reproduction, dissemination, and exhibition of other people’s portraits shall be subject to his permission. Otherwise, the right to portrait of others shall be infringed.
Malicious processing and defacement of other people’s portraits not only infringes the right of portrait, but also constitutes damage to the right of reputation. For example, the unauthorized use of celebrity photos to make peripheral products for sale, advertising, etc., are all acts of infringement of portrait rights. In addition, most of the popular emojis are made without their consent, which is also an act of infringement of portrait rights. If they are used for commercial purposes, they also need to bear corresponding compensation liabilities.
It should be noted that in order to protect the public’s right to know, artists, well-known public officials, etc., as public figures, have the obligation to tolerate a certain degree of photojournalism in public. And for shooting that is not for the purpose of photojournalism, under the current laws of our country, there is still some controversy as to whether it should be regarded as an infringement of portrait rights. However, without permission, shooting in the private life of public figures, whether for news purposes or simply shooting without dissemination, is a candid shooting and may be investigated for civil liability. In daily life, everyone should know how to protect their privacy rights, portrait rights, and reputation rights, and at the same time respect the legitimate rights and interests of public figures.
(Author unit: Beijing Shijingshan District Court)