Is the current sale of World’s recordings legal? A pipes|drums investigation

Almost from the time that mobile sound equipment was invented, pipe band competitions have been recorded. There are scratchy recordings of the Bowhill Colliery Pipe Band winning the first official World Championship in 1947, and the first commercial release of the World’s was an LP in 1977. It captured the top six finishers of the day and set a course for the next 29 years of releases. In 2005, a landmark legal case, “Experience Hendrix LLC v Purple Haze Records Ltd.,” was decided in the United Kingdom. Essentially, the case went like this:

1. “Experience Hendrix LLC” [Hendrix], the company that sprung from the famous rock star Jimi Hendrix’s estate, had concerns over the legality of a commercially available recording of a 1969 Jimi Hendrix Experience concert made in Stockholm and sold by “Purple Haze Records Ltd.” [Purple Haze]
2. Hendrix argued that Purple Haze had made illegal recordings of the 1967 performance and therefore owed the performers money because, even if Jimi Hendrix himself had agreed to be recorded, it was clear that the two other performers, Noel Redding and Mitch Mitchell, had not consented.
3. The court agreed with Hendrix and held that all performers in a band are treated individually and must each contractually consent prior to being recorded. Further, the court held that performers can go back in time to recover for infringing activities conducted in the past, even several decades ago.

Click here for a synopsis of the case. In effect, the judgment in favour of Experience Hendrix LLC means that recordings of performances that are reproduced and made publicly available must have a legally binding agreement signed by not just a representative of a band or group, but by every individual who performs on the recording.

According to legal experts and the Hendrix case, “consent” must refer to performance rights during a particular event, that the event will be recorded, and that the recording will be sold commercially. As long as anyone seems to remember, the Royal Scottish Pipe Band Association (RSPBA) has never sought the proper legal consent of performers to make recordings of competing bands entering the organization’s competitions. Since at least 2000, a statement, or “admonition” as one band member called it, has appeared at the bottom of a sheet mailed with the entry form for the World Championships.

Under the prize-money announcement, draw and grading information there is a statement that reads, “ALL AUDIO AND VIDEO RIGHTS ARE RETAINED BY THE RSPBA.” However, there is no mention of consent or performance rights or recording, and there is no way to know whether any of the performers see this statement. Moreover, there is no way to know what “rights” are retained, as it could refer to RSPBA-owned logos or audio announcements. In any event, there is no known evidence of any performer conveying consent to the RSPBA in any form.

The RSPBA’s version of “consent,” according to our research, may not be legally binding. Even if it were, because the consent waiver is not signed and submitted by every performer, the association may be liable to provide adequate compensation to every individual piper and drummer who has made music on an LP, cassette tape, CD or DVD made from a competition or performance.

Further, the Hendrix case determined that organizations that do not obtain legally binding consent are subject to providing compensation to performers on recordings from the past. Therefore, any group that has ever produced and/or sold recordings of pipers and drummers without proper, legally binding consent may be on the hook to settle with every performer on every recording that it has ever made. In effect, the thousands of bandsmen and women who performed on any commercially available recording over the last 30-odd years could be due fair compensation if they chose to pursue the matter. pipes|drums has confirmed that the RSPBA has been made aware of this legality and the organization’s potential infraction.

The BBC, which handles the actual mobile recording facilities and makes the recordings for broadcast on its programs, could also be subject to the Hendrix case decision. The organization does not compensate bands in return for their being broadcasted on the radio or for the television special that it made from the 2006 World’s. According to sources, the BBC did send Grade 1 bands a DVD of the TV show, but North American bands were unable to view it in the UK format. (The RSPBA has not provided bands featured on the World’s CDs and DVDs with a complimentary copy.)

At the very least, the Hendrix case clearly demonstrates that proper consent must be obtained to be within the law of performers’ rights. If a pipe band association decided to create a recording in the future of a live performance, and wants to be within the law, it should probably take pains to ensure that it secures consent, not just in the form of a blanket agreement for each band overall, but from every member of every band. The RSPBA and Klub Records, to be sure, are not the only organizations that have made and sold commercial recordings of competitions. The Pipers & Pipe Band Society of Ontario in the 1970s and ’80s also put out occasional LPs made from recordings of various contests. There are dozens of commercially available LPs, CDs and DVDs that have been made from solo competitions and recitals. But recordings of the World Pipe Band Championship, by an immense margin, are the most popular, numerous and biggest- selling contest recordings made since 1977.

Famous grousing

For time immemorial – or at least since the advent of commercial recordings – pipers and drummers have been somewhat divided on the issue of performers’ rights, royalties and what constitutes “fair” compensation for products that feature their music. Composers of pipe tunes and drum scores, whose intellectual property has in the past been freely reproduced, have taken strides in the last 20 years especially to secure copyright and publishing rights. Some composers diligently track and collect on every penny that’s due them, while others are sanguine, and aren’t bothered, especially since it’s considered good, profile- building exposure that will in time make them famous so that they will eventually get the recognition and money that they feel that they deserve. For them it’s all about exposure.

By many accounts, the recordings of the World Pipe Band Championships, which for the past 20 years have been contracted between the RSPBA, the BBC and Klub Records Ltd. of Glasgow, are annually among the biggest selling CDs in the Scottish folk genre. It is not known exactly how many units are sold or where the proceeds are allocated. What is known is that the performers on the recordings do not receive royalties. Many bands have the rather traditional view that “getting on the CD” is their main objective. Because piping and drumming is a hobby for the vast majority of the composers, perhaps legalities and fair compensation would lessen the enjoyment of their hobby.

And there, perhaps, is the rub. Pipe band associations and recording companies, rightly or wrongly, often have recognized and exploited pipers, drummers and pipe bands’ feeling that the return for them is not monetary but simple pleasure, exposure and profile-building. There is an underlying notion among traditionalist pipers and drummers that if a legal fuss were made, or demands for fair compensation were raised, then the recordings may not even be produced: Don’t even broach the topic and let sleeping dogs lie. Besides, some may think, rocking a political boat may somehow filter down to negative judging. Case in point: pipes|drums could find no one attached with a top pipe band who would speak without assurance of anonymity. Such is the fear of political fall-out from speaking about what would appear to be a cut-and-dried legal issue. “The only way this will actually come to anything is if someone tries to recover money,” said one Grade 1 band-member well-versed in the issue. “The problem is there is not much money to chase so it is not worth it. No value has ever been negotiated.”

Legal repercussions

Depending on what association is in question, pipe bands are mostly loathe to raise contentious issues for fear of political or judging reprisals. For many top bands in demand for commercial recordings, competitive success is more important than recording success or the compensation they may make from CDs and DVDs. But as quality CDs have become record, produce and distribute, independently made pipe band recordings have become a cottage industry. Some bands, like Simon Fraser University and the Scottish Lion-78th Fraser Highlanders, attain a large portion of their yearly revenues from the sale of their CDs.

It may not be big business in the recording industry overall, but in the pipe band world, the sale of CDs has been a financial boon. For “overseas” bands, revenue from recordings can be the difference between being able to travel to the World Pipe Band Championships and staying home. pipes|drums knows that a member of one top band, with his expertise as a lawyer, in early 2006 alerted the RSPBA to the Hendrix decision. According to sources, the correspondence was doing no more than pointing out the potential problem, and the fact that if pipers and drummers decided to launch a claim to fair compensation against associations, recording companies or even the BBC, would likely be successful. The individual was met with a stern dressing-down, and his band allegedly was threatened with disqualification.

The issue, for the summer, was squashed, and the 2006 World’s CDs and DVDs have been created, sold and enjoyed as usual. “Focusing on this as a band issue will do immeasurable damage in the long run as it would cause confusion away from the real power: collective action by individuals regardless of the band they are in,” another source said on condition of anonymity. “The way to get it really running would be to establish a union or federation of pipe band musicians, and that entity could chase down money for performers and composers. Then there would be potential for a class-action suit.” At any rate, sources contend that the RSPBA and the BBC have acknowledged in writing that they are aware of performers’ rights and the need for proper legal consent, yet have pressed ahead anyway with production efforts. Several representatives of the RSPBA were invited by pipes|drums to comment on the issue. To date they have not acknowledged the inquiry, much less made a statement.

Compensation and logistics

According to our research and discussions with legal experts, copyright law and performer’s rights legislation are designed to create an incentive for artists to continue creating and performing. They protect performers from situations in which they lose power in negotiations. The law makes it necessary to get a performer’s consent and thereby forces a negotiation between the performer and the entity making the recording.

Without a negotiation, no value is assigned to the performances and the artist gets nothing. This seems to be what has happened at the World’s: no value has ever been assigned to the performances and there is no accounting of the profits made. Without knowing the amount of money achieved from the sales of the World’s CDs and DVDs, it is impossible to know what “fair” compensation would be. It has been suggested that it may not have to take the form of payment to actual performers at all. A legally-binding consent document could mean that fair proceeds go towards travel assistance for bands, or a fund for worthy piping and drumming causes, or some other beneficent foundation. It would be fairly easy for a general agreement to be made stating that fair compensation for performers’ rights might be investment in or expansion of judging at the World Pipe Band Championships.

This would allow all performers to benefit at the contest itself. Logistically, in the case of the World’s, this would require each band to submit a list signed by the performers assigning their performance rights to the RSPBA. Ultimately, two issues are at stake: 1) Whether pipers and drummers want to seek fair compensation for their commercially available performances, and 2) whether piping and drumming organizations and companies and broadcasters creating, distributing and/or selling recordings want to adhere to the law and treat the performers and, in the case of associations, their dues- paying members fairly.

“The current arrangement . . . regarding the CDs and DVDs is upsetting to the bands,” said one prominent Grade 1 band member, again speaking only on the condition of anonymity. “The bands do not want a lot of money by any means. It is just that it isn’t proper for the any group to record pipe bands, sell CDs and keep all the proceeds. The artists should be sharing to some extent. The bands, between themselves, have expressed their dissatisfaction with the current arrangement.” Time will tell how performers, associations and companies will react to the legal precedent created by Hendrix v Purple Haze, and whether the matter becomes the watershed event in the history of piping and drumming that it could and perhaps should be.