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elstultus
licensed music
on Nov 20, 2005 at 10:05:24 pm

I've seen several wedding videographers offer a montage video on their clients dvd set to the "song of their choice". What are the legal guidelines in using licensed music on a wedding dvd?


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CaptainMench
Re: licensed music
on Nov 21, 2005 at 4:17:00 am

There are lots of good music libraries you can use for your wedding videos. Pay for the cd of that stuff and you'll be able to use at will.

Pay for a cd of someone elses music that is protected by rights and you'll get in trouble.

Might not the first time, but hey--- they're arresting 13 year old kids for downloading music to their bedrooms. You want to make $2500 and do it for free?

Please.

CaptM


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Peter Ralph
Re: licensed music
on Nov 23, 2005 at 12:47:06 am

you are probably ok using music supplied by the client - its not quite as straightforward as including the live music of the event in the video, but it's a lot more defensible that slapping some movie soundtrack over the live audio.


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Matte
Re: licensed music
on Nov 23, 2005 at 4:01:59 am

[Peter Ralph] "you are probably ok using music supplied by the client"


Wow!

I can't believe someone with your pro experience said that.

NO ONE is "alright" using any "non-cleared" copyrighted music in a professional edit.

"But my client handed me the CD" is not a defense. Not even a little bit.

Am I misinterpreting your answer?

If so, I apologize. But that's how I read it.


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Doug Lewis
Re: licensed music
on Nov 23, 2005 at 4:58:17 am

Here's something I've never understood. I can walk into my living room and pick out a CD that I own and use it to play with pictures of my kids on a family video and there is no problem. Why is it that someone can't bring to me their pictures and their CD and pay me to do the edit work. If they had the talent, equipment, etc, they could do it themselves with no problem. All I am doing is the "labor" that they cannot do because of lack of talent, equip, etc. Is this a "grey" area? Probably not.



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Matte
Re: licensed music
on Nov 23, 2005 at 12:21:36 pm

Just do a Google search for "Synchronization Copyright" or similar.

Is topic is always under discussion.

It is the actual "connecting the music WITH the images" that comes into play here (as well as "reproduction copyright").

We can debate the LOGIC (or lack thereof) of these laws forever... but what really matters is the FACT that they EXIST.



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Doug Graham
Re: licensed music
on Nov 23, 2005 at 3:54:23 pm

The difference is that you are making money creating a media product. Using someone else's copyrighted material as a part of that product, to earn money, without giving them fair compensation, is a no-no.

The problem here in the U.S.A. is that the mechanisms for obtaining permission, and providing "fair" compensation, were originally set up for Hollywood studios and record companies. They aren't suitable for small budget productions like weddings or video scrapbooks.

The copyright law itself isn't to blame, so much as the established legal machinery for implementing it. It badly needs work; other countries, like Australia and the U.K., have workable mechanisms for small-budget producers obtaining licenses, so it can be done.

Until someone tackles this, your only legal recourses are to use buyout music, compose and perform your own, or use a loop-based program like Acid to create it.

If you decide to break the law, you'll have lots of company. The risk of being sued is pretty low (so far, anyway). But does the fact that many others are doing it, and that you probably won't get punished, make it right? I don't think so, but it's an ethical and business decision that every event videographer must face.

Regards,
Doug Graham


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Doug Lewis
Re: licensed music
on Dec 2, 2005 at 3:06:24 am

I too, wish that we had some sort of licensing, like Australia. How exactly does the license work in Australia? I would be happy to pay an annual license fee to allow me to legally produce what my customer wants. How can we get this done?



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Peter Ralph
Re: licensed music
on Nov 23, 2005 at 10:44:27 pm

Matte - this subject has been done to death many times on this forum, just do a search to find out more than you would ever want to know about my take on wedding video and copyright.

3 things:

To understand fair use you must understand the difference between equity and common law. Fair use is an equitable doctrine, and the courts have consistently resisted all attempts by the legislature to limit its application. It is wrong to assume that the copyright act represents the final word on this issue.

Many years ago there was legitimate doubt as to wether or not fair use could be applied in commercial uses. Supreme court decisions in Mad magazine vs Walt Disney, and 2 Live Crew vs Roy Orbison (the "Pretty Woman" case) have clarified this issue. You can claim fair use protection for commercial productions.

I believe that including recorded music in a wedding video is covered by fair use. Taking an unrelated piece of music and plastering it over the wedding video for dramatic effect is just as clearly not covered by fair use. Here the case in point falls between the two, hence my proviso. And yes I believe that a judge in adjudicating an equitable remedy would be concerned about where the music came from, and who suggested its use.



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Matte
Re: licensed music
on Nov 24, 2005 at 2:04:27 am

[Peter Ralph] "I believe that including recorded music in a wedding video is covered by fair use."


The key part of that sentence is the "I believe..."

I'm not trying to argue the point (OK, a little bit), but it can be very dangerous to the pocketbooks of those "tuning in" here to say that "fair use" means you can do anything your client wants you to do with copyrighted works.

Hey, BOTH can get prosecuted, cha-CHING!

I wish it were simple, but it is very unclear.

Remember that the Disney Co. sued and won against a small daycare center for painting Mickey and other Disney characters on the walls.

Its not the "evil" corporations trying to stick it to the little guy. They MUST defend their property. The law holds that if one does NOT PROTECT a copyright, over time, the work(s) can fall into Public Domain.

But, as you said, this has all been rehashed to infinity.

(Google "copyright law" for even more confusion).



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Kyle S
Re: licensed music
on Nov 24, 2005 at 2:57:34 pm

NO, No, No, and once again for those who don't seem to understand the answer is No.

The cases you list fall into the class of parody and sarcasm, which typically have always fallen into the fair use grouping. You can use whatwever music you wish since the chances of getting sued are rather small. Just remember all it takes is your client to send a copy to Aunt Martha who has a neighbor who watches it with her one evening, and that neighbor happens to work for ABC record company who released the song. Strange things like this are what usually catch small producers and then you get "the letter".

It galls me to no end when people who create things for a living suggest that it should be ok to just lift someone elses creative work. If you create a wonderful opening to use in front of your weddings, say using different shots of churches, flowers, wedding bells, whatever, how would you feel if I just lifted it and put in on my work? Fair use right?

Kyle


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Peter Ralph
Re: licensed music
on Nov 30, 2005 at 1:30:30 am

Kyle - you believe that a judge would criminalize a citizen, and conceivably send him to prison, for commissioning a video of his wedding - I respectfully disagree.

Your contention that parody has always been protected by fair use is flat wrong - in 1993 the 2nd circuit court of appeal held that 2livecrew's parody of Pretty Woman was illegal. The Supreme Court reversed the decision the following year. 11 years is a long time but "always"?

Sarcasm? I like the sound of that, but again I think you've got it wrong.

In the future, maybe sarcasm will be be included as fair use (I can't see how personally) - certainly the courts continue to expand the fair use doctrine year by year. Will it be extended to cover wedding videography? Certainly not unless someone institutes a suit, and so far no-one has done that. Can it really be, as you imply, that no-one in the recording industry has ever seen a wedding video?

You certainly claim a more restrictive interpretation of fair use than either the legislature or the judiciary:


"Although the courts have considered and ruled upon the fair use doctrine over and over again, no real definition of the concept has ever emerged. Indeed, since the doctrine is an equitable rule of reason, no generally applicable definition is possible, and each case raising the question must be decided on its own facts......
The statement of the fair use doctrine in section 107 offers some guidance to users in determining when the principles of the doctrine apply. However, the endless variety of situations and combinations of circumstances that can rise in particular cases precludes the formulation of exact rules in the statute. The bill endorses the purpose and general scope of the judicial doctrine of fair use, but there is no disposition to freeze the doctrine in the statute, especially during a period of rapid technological change. Beyond a very broad statutory explanation of what fair use is and some of the criteria applicable to it, the courts must be free to adapt the doctrine to particular situations on a case-by-case basis....the works and uses to which the doctrine of fair use is applicable are as broad as the copyright law itself"

excerpts are from house report no.94-1476 dealing with section 107 (the fair use section) of the 1976 Copyright Act




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Kyle S
Re: licensed music
on Dec 2, 2005 at 12:03:21 am

Peter,

I've read all of your post here and you are in a word, WRONG. The music is not yours don't use it. Carted of to jail for it no, sued a judgment placed on which might ruin you, that is absolutely possible.

Sarcasm and parody usually exsist in some degree together, and parody has always been more protected than not, hence the final ruling.

Stop nitpicking words just because you know your wrong. If you wish to use copyrighted music you do not have clearance for feel free. Don't suggest to others that it is ok.

Once again I will say that it is absurd for someone who makes a living creating things to suggest in any way that it is ok to co-opt someone elses creations for their own purpose and profit. You create a mice animated open for your weddings, someone I know has you do their wedding and I buy a copy, Its now on my disc so I can just freely use it in my productions. Fair use, right?

Kyle


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Peter Ralph
Re: licensed music
on Dec 2, 2005 at 7:24:06 pm

the "wedding video is a crime no matter what you do" attitude is a real problem. It encourages rampant disregard of copyright laws.

the wedding industry needs its own "Best practices in Fair Use":

http://www.centerforsocialmedia.org/fairuse.html















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Kyle S
Re: licensed music
on Dec 2, 2005 at 11:28:28 pm

Peter,

I am trying to read youar post and it is just making no sense to me. Nothing is a "crime" or problem as long as you don't use things that belong to other people or you do not have the rights to. Interesting that you've completelly avoided the question of somebody lifting your work as fair use.

Kyle


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Doug Graham
Re: licensed music
on Dec 5, 2005 at 4:31:15 am

Kyle,

I'm sorry, but in reading this exchange, I think your posts are the ones that are hard to make sense of.

Nobody has said that using someone else's material is "fair use" in every case. Furthermore, going all the way back up the thread, Peter never said that using someone else's copyrighted music was legal. (Although he DID say that you're not likely to get in trouble for it, especially if you use a CD supplied by the client...which is true.) It's not legal, but at least so far the music industry has not gone after wedding videographers for this type of use.

Let's just drop the "fair use" issue, anyway. It does not apply to wedding videographers. Period.

The gray area that DOES apply is "incidental capture". Let's say you are taping a guest interview. In the background, you can hear the DJ playing music. Technically, that music on your videotape is a copyright violation. However, its capture was "incidental" to the main purpose of the video, and so no violation has occurred. Now, the situation gets a little grayer when we tape the First Dance. Is that music "incidental", or is it an essential part of the captured material? An argument can be made either way. Most likely, it would be ruled that the situation is a violation, but of a "de minimis" nature, meaning that while a violation has occurred, essentially no harm has been done to the copyright holder.

OK...so it's (probably) safe to continue shooting receptions. Whew! How about some music to go under that photo montage?

That's much more clear-cut. Syncing copyrighted material to your video without permission is a no-no. If the record company finds out, and decides to sue, you will most likely lose your business. SO FAR, the record companies have turned a blind eye to our industry, but a lot of us still feel uncomfortable in using copyrighted material. Some just shrug and take their chances. Some make a "good faith" effort, by buying (or having the client buy) the CDs, then destroying the disks once the video is done. This at least provides some compensation to the copyright holder, even though it is not a legally-approved procedure. Some use buyout music.

Until someone comes up with a workable licensing system for low budget productions like ours, each of us has to make a decision based on our own morals and sense of risk.

Regards,
Doug Graham


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Peter Ralph
Re: licensed music
on Dec 5, 2005 at 6:27:46 pm

Yes absolutley Doug - incidental capture is the key:

"In '5 Girls', Maria Finitzo filmed a teen party where an En Vogue song played in the background. She employed fair use because the girls chose for themselves to use that music, and their choices were part of the reality of their daily lives."

http://www.centerforsocialmedia.org/rock/category3.htm

They claim a far wider umbrella for "incidental capture" than any court has ever explicitly granted. But this is just an opinion, however many attorneys, law professors and professional organizations may have signed on to it.







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Kyle S
Re: licensed music
on Dec 6, 2005 at 3:01:25 am

Doug,

I don't believe anything I said should be unclear. I specifically said if it is not yours or you do not own the proper rights, then you should not be using it.
This thread did not start asking about incidental taping, it started about building montages which would need sync rights. Picking up the cd from the client on a wink and a nod is not going to protect you if anything ever comes down. Sure at the moment no own has gone after weddings, once upon a time no one went after individual downloaders, once no one went after tv stations who were claiming they were covered by bmi and ascap. Oneday (who knows when) some wedding guy is going to get strung up by a record label.

It has been suggested in this thread (and others) that it should be fair use, yet when I ask a simple question, if I buy a video you made and take something for my own would that be fair use?, no one wants to answer. It is absurd for someone who makes their living creating things to either use or to suggest it is ok to use someone elses work.

Kyle


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Doug Graham
Re: licensed music
on Dec 6, 2005 at 5:48:35 pm

We're in agreement, then! :)



Regards,
Doug Graham


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Pat King
Re: licensed music
on Dec 15, 2005 at 3:23:28 pm

Doug I know you often recommend Douglas Spotted Eagle as a resource on copyright.In a post by DSE on VU he says that its fine to include copyright music in wedding videos as long as you record it live and don't make it the basis of your edit. I don't want to start another angry debate but this point seems basic information for wedding videographers. How about you doing an article for Event DV exploring this idea? I can't think of anyone better qualified to do it.


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