U2 FAQ

Question:

The issue of publishing rights raises an interesting question, though. Do U2 pay royalties to the original artists for the use of these lyrics? If so, then you’re absolutely right – a bootleg would be infringing on rights that U2 don’t won, and thus can’t give away. If not, then it’s probably because the snippets are so short as to fall into one of the "fair use" clauses (and I suspect that U2’s lawyers will have worked this out by now, to avoid any possible embarrassment from a lawsuit!), and in that case then they’d be OK on a bootleg as well.

Well, as I understand it, the two major publishing-rights entites ASCAP (and I forget the other one) have people who go from to bars, clubs and concerts to count how many times a song (or lyrics from a song) are performed. Though usually I think the stick with full-length versions of songs. But brevity of the lyrics is only part of fair use. Since the band is making money off the performance, fair use doesn’t apply. So they still have to get permission (pay royalties) if they were to release a recording of someone else’s songs/lyrics. For example: "Send in the Clowns" was left off Under a Blood Red Sky for this reason, even though Bono sings just a few words from the song. Another possible example, WOWY on the Popheart EP fades out a bit early. I think I recall reading that Bono launched into some non-U2 lyrics at the end, but it wasn’t included on the CD. Then again, the recent concert videos contain all of the non-U2 lyrics. I’m not sure what the difference is.

Response:

- Hide quoted text — Show quoted text – typed: In the case of U2, the band organise and promote their own tours, and own the publishing copyright themselves (through Blue Mountain Music, which they own). So U2 can legitimately allow fans to make and trade bootlegs, as a genuine live bootlegs only contains material that is the direct copyright of U2, not any other organisation. But note that this only applies to tours and gigs organised by U2 themselves, not to gigs where they’ve played at an event someone else has organised (such as Live Aid), and it only applies to U2’s own live performance where the paying public are admitted, not to rehearsals or anything performed by the support band. It also does NOT apply in any way to copies of commercially released material, as that would be a definite breach of the record company’s mechanical copyright. Mark, you’ve done your homework on this one.  Wasn’t the Elevation tour organised and promoted by ClearChannel (through their subsidiary whose name has just leaked out of my brain)though?  I think this must get really fuzzy somewhere, except for the lawyers. Yes, but in this case ClearChannel were hired by U2 to organise the tour, rather than the other way round, if you see what I mean. So U2 were still in ultimate control of it all.

Gotcha.  :) There are some comments attributed to the band online at <http://www.acusd.edu/~odonnell/legalities.htm, but the web page doesn’t quote sources so there’s no way to know how accurate these are. Mark

I hate when webpages don’t attribute.  That is one thing that should be stressed in training for web designers.  With more people getting their information online we need to be able to separate the wheat from the chaff…which is neither here nor there in regard to the argument.   Thanks, Mark.  My feeling is that the whole idea is still rather murky and will have to come to a test case.  I can’t see U2 doing that. Doc

Response:

- Hide quoted text — Show quoted text – typed: But I would follow up by saying that, given Bono’s propensity for inserting lyrics from non-U2 songs into concerts — hence U2 doesn’t control the performance or publishing copyright — most U2 bootlegs out there still fall into a gray area. They still control the performance copyright, as it’s still U2 performing, not the original artist. But I suspect you knew that, really The issue of publishing rights raises an interesting question, though. Do U2 pay royalties to the original artists for the use of these lyrics? If so, then you’re absolutely right – a bootleg would be infringing on rights that U2 don’t won, and thus can’t give away. If not, then it’s probably because the snippets are so short as to fall into one of the "fair use" clauses (and I suspect that U2’s lawyers will have worked this out by now, to avoid any possible embarrassment from a lawsuit!), and in that case then they’d be OK on a bootleg as well. Mark

Plus there is a certain cachet to having one’s lyrics stolen by His Bononess…the coolest man on the planet.  :) Doc

Response:

typed: But I would follow up by saying that, given Bono’s propensity for inserting lyrics from non-U2 songs into concerts — hence U2 doesn’t control the performance or publishing copyright — most U2 bootlegs out there still fall into a gray area.

They still control the performance copyright, as it’s still U2 performing, not the original artist. But I suspect you knew that, really The issue of publishing rights raises an interesting question, though. Do U2 pay royalties to the original artists for the use of these lyrics? If so, then you’re absolutely right – a bootleg would be infringing on rights that U2 don’t won, and thus can’t give away. If not, then it’s probably because the snippets are so short as to fall into one of the "fair use" clauses (and I suspect that U2’s lawyers will have worked this out by now, to avoid any possible embarrassment from a lawsuit!), and in that case then they’d be OK on a bootleg as well. Mark

Response:

True, but with the smaller acts (especially the newest acts), it’s often the label that foots the bill for the tour, so it’s more in their economic interest to crack down on bootlegging, in the hopes that will force more people to attend concerts, instead of searching out bootlegs. Or so the theory might go. – Hide quoted text — Show quoted text – well it’s actually a no win for the labels, period.  with larger acts, they aren’t going to want to piss them off…with smaller acts, they might realize that bootleg trading is a great way of getting word of mouth out about the band and might not want to fuck with that

Response:

But you’re right, when an act is as big as U2, the record label’s going to tred lightly. With smaller acts, the labels can crack down a bit more.

well it’s actually a no win for the labels, period.  with larger acts, they aren’t going to want to piss them off…with smaller acts, they might realize that bootleg trading is a great way of getting word of mouth out about the band and might not want to fuck with that — "It’s like Chia Band…just add water and BOOM, this happens"-Chris Robinson, 1-8-94

Response:

That’s not entirely true. Copyright infringement is a civil offfence[1], not a criminal offence, so it isn’t "illegal" as such – at least, not in the same sense that burglary is, for example.

Not to get too tied up with the technicalities, but a civil offense still makes it illegal, just not criminal. The legal remedies are different, that’s all — economic sanctions and/or injunctions versus jail time. But thanks for the the post. Very informative. I’m still trying to track down a message from the Crowded House/Neil Finn list I’m on that had even more info that applies to this discussion. But I would follow up by saying that, given Bono’s propensity for inserting lyrics from non-U2 songs into concerts — hence U2 doesn’t control the performance or publishing copyright — most U2 bootlegs out there still fall into a gray area. It’s just never as simple as saying "well, the band says it’s okay … so." That said, I don’t think you’re going to see a crackdown on U2 bootlegs unless someone starts trying to sell lots of copies or the band decides it’s something they want to stop.

Response:

In the case of U2, the band organise and promote their own tours, and own the publishing copyright themselves (through Blue Mountain Music, which they own). So U2 can legitimately allow fans to make and trade bootlegs, as a genuine live bootlegs only contains material that is the direct copyright of U2, not any other organisation. But note that this only applies to tours and gigs organised by U2 themselves, not to gigs where they’ve played at an event someone else has organised (such as Live Aid), and it only applies to U2’s own live performance where the paying public are admitted, not to rehearsals or anything performed by the support band. It also does NOT apply in any way to copies of commercially released material, as that would be a definite breach of the record company’s mechanical copyright.

Mark, you’ve done your homework on this one.  Wasn’t the Elevation tour organised and promoted by ClearChannel (through their subsidiary whose name has just leaked out of my brain)though?  I think this must get really fuzzy somewhere, except for the lawyers. At any rate, my feeling is that the band has always said that it is okay for TRADERS to swap boots.  Wish they’d come online and clear up the situation…but I guess the lawyers would lose what is remaining of their hair if that were to happen.  The next time they do a webchat somebody ask that question, okay? Doc

Response:

typed: – Hide quoted text — Show quoted text – In the case of U2, the band organise and promote their own tours, and own the publishing copyright themselves (through Blue Mountain Music, which they own). So U2 can legitimately allow fans to make and trade bootlegs, as a genuine live bootlegs only contains material that is the direct copyright of U2, not any other organisation. But note that this only applies to tours and gigs organised by U2 themselves, not to gigs where they’ve played at an event someone else has organised (such as Live Aid), and it only applies to U2’s own live performance where the paying public are admitted, not to rehearsals or anything performed by the support band. It also does NOT apply in any way to copies of commercially released material, as that would be a definite breach of the record company’s mechanical copyright. Mark, you’ve done your homework on this one.  Wasn’t the Elevation tour organised and promoted by ClearChannel (through their subsidiary whose name has just leaked out of my brain)though?  I think this must get really fuzzy somewhere, except for the lawyers.

Yes, but in this case ClearChannel were hired by U2 to organise the tour, rather than the other way round, if you see what I mean. So U2 were still in ultimate control of it all. At any rate, my feeling is that the band has always said that it is okay for TRADERS to swap boots.  Wish they’d come online and clear up the situation…but I guess the lawyers would lose what is remaining of their hair if that were to happen.  The next time they do a webchat somebody ask that question, okay?

There are some comments attributed to the band online at <http://www.acusd.edu/~odonnell/legalities.htm, but the web page doesn’t quote sources so there’s no way to know how accurate these are. Mark

Response:

typed: Regardless of what U2 says, it’s technically illegal because it violates copyright and music publishing laws. U2 (or at least Bono and Edge) have said on several occassions they don’t mind fans trading tapes, as long as they don’t sell. I know Edge said this during a web chat prior to the release of ATYCLB. I’ve seen at least one Bono quote out there, but I don’t know it’s origins. I saw really good explination of this a few weeks ago relating to another artist. If I can find it again, I’ll post it. But in a nutshell, regardless of what an artist says — unless they also own the label and all distribution/publishing rights — then it is technically illegal.

That’s not entirely true. Copyright infringement is a civil offfence[1], not a criminal offence, so it isn’t "illegal" as such – at least, not in the same sense that burglary is, for example. As far as copyright itself is concerned, there are three separate copyrights in a commercially produced CD: The performance copyright (the actual playing of the songs), the publishing copyright (the rights to the songs as written down in words and musical notation) and the mechanical copyright (the copyright in the physical production of the CD[2]). These three are usually owned by different people or organisations: the record company always owns the mechanical copyright, but the performance copyright and publishing copyright are often owned by the artist or by the artist’s agents. In the case of a bootleg of a live gig, there is no commercial mechanical copyright, as the recording is being made privately rather than by a record company (technically, the bootlegger owns it, but it would be completely unenforceable so to all practical purposes it doesn’t exist). The performance copyright is owned by either the promoter or the artist, depending on who is ultimately responsible for the gig, and the publishing copyright is held by the same people as hold it on a commercial CD. In the case of U2, the band organise and promote their own tours, and own the publishing copyright themselves (through Blue Mountain Music, which they own). So U2 can legitimately allow fans to make and trade bootlegs, as a genuine live bootlegs only contains material that is the direct copyright of U2, not any other organisation. But note that this only applies to tours and gigs organised by U2 themselves, not to gigs where they’ve played at an event someone else has organised (such as Live Aid), and it only applies to U2’s own live performance where the paying public are admitted, not to rehearsals or anything performed by the support band. It also does NOT apply in any way to copies of commercially released material, as that would be a definite breach of the record company’s mechanical copyright. [1] The DMCA in the US, and similar laws proposed for the EU, do criminalise copyright infringement in certain circumstances, but not in this case. [2] Or whatever medium the music is released on. "Mechanical" copyright is a rather antiquated term, dating from the days when recorded music was only available on vinyl, but it applies even where the medium is purely electronic, such as mp3. Mark

Response:

Regardless of what U2 says, it’s technically illegal because it violates copyright and music publishing laws. U2 (or at least Bono and Edge) have said on several occassions they don’t mind fans trading tapes, as long as they don’t sell. I know Edge said this during a web chat prior to the release of ATYCLB. I’ve seen at least one Bono quote out there, but I don’t know it’s origins. I saw really good explination of this a few weeks ago relating to another artist. If I can find it again, I’ll post it. But in a nutshell, regardless of what an artist says — unless they also own the label and all distribution/publishing rights — then it is technically illegal. – Hide quoted text — Show quoted text – Hi all,   I know that U2 says it’s OK to /trade/ recordings of their live   concerts, but is there any documented evidence from the band anywhere that says this?   I’ve got a friend who has U2 stuff on his website and is now being   hounded by the police saying that it’s illegal to trade their stuff, so he’s looking for evidence that says "Yes, indeed it IS ok to trade".   Any help would be appreciated!   Thanks.             Bryan

Response:

I would imagine that its irrelevant how u2 feel about it… its what their record company thinks about it that counts.

no, it’s U2’s copyright on the songs…plus you have to remember that U2’s record company isn’t about to piss them off by whining about fans trading stuff when U2 doesn’t care as long as no profit is involved — "It’s like Chia Band…just add water and BOOM, this happens"-Chris Robinson, 1-8-94

Response:

But as the distributor, the labels have the final say. They technically own the distribution rights to all of U2’s songs. They have to collect royatlies, publishing fees, ASCAP, etc. Then there’s the issue of cover songs. If someone SOLD a bootleg with U2 doing a Beatles song, technically that bootleg producer owes a royalty to the Beatles and/or has to get clearance. (There’s a reason "Send in the Clowns" was on the Under a Blood Red Sky of "Electric Co.") But you’re right, when an act is as big as U2, the record label’s going to tred lightly. With smaller acts, the labels can crack down a bit more. – Hide quoted text — Show quoted text – no, it’s U2’s copyright on the songs…plus you have to remember that U2’s record company isn’t about to piss them off by whining about fans trading stuff when U2 doesn’t care as long as no profit is involved

Response:

Hi all,   I know that U2 says it’s OK to /trade/ recordings of their live concerts, but is there any documented evidence from the band anywhere that says this?   I’ve got a friend who has U2 stuff on his website and is now being hounded by the police saying that it’s illegal to trade their stuff, so he’s looking for evidence that says "Yes, indeed it IS ok to trade".   Any help would be appreciated!   Thanks.             Bryan

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