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Commercial Music Usage Background Information Please

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RocklinDave
Commercial Music Usage Background Information Please
on Jul 30, 2007 at 5:28:05 pm

First, I HAVE searched COW, but have come up empty handed. I may not be using the correct terms.

I work for a government agency that does videos for other government agencies. We recently had a client that insisted that we use popular commercial music in their project. I am sure that doing so was illegal, and what I am looking for is a brief article or website which I can send to the client to help defend my position. It is important that the article address the usage of commercial music by governmental agencies. Any help would be appreciated!


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cowcowcowcow
David Roth Weiss
Re: Commercial Music Usage Background Information Please
on Jul 30, 2007 at 6:34:20 pm

Dave,

You're doing the right thing. While there are litterally millions of people who use other people's copyrighted material as though it were their's for the taking, its wrong and its illegal. Search the archives of this forum and you will find many, many discussions on this topic.

As Ron Lindeboom (the sometimes bull-headed head bull of the Creative Cow) has pointed out numerous times, copyright infringment can be very perilous to those doing the work for producers willing to take the risk, because ignorance of the law is no sheild, nor is following the instructions of an employer or higher-up.

David

David Roth Weiss
Director/Editor
David Weiss Productions, Inc.
Los Angeles

POST-PRODUCTION WITHOUT THE USUAL INSANITY

A forum host of Creative COW's Business & Marketing, and Indie Film & Documentary forums.





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cowcowcow
Del Holford
Re: Commercial Music Usage Background Information Please
on Jul 30, 2007 at 8:35:12 pm

Since we are covered by PBS' agreement with ASCAP and BMI we can use whatever with mechanical and reproduction rights. But what does copyright law say about non-commercial use of commercial music? If the end user is non-broadcast how does he report? I'm not saying a user shouldn't pay their due because I'm a strong advocate for paying the artist's what they're owed. Douglas Spotted Eagle recently did a paper on copyright law. I'll dig that out and see if it addresses the issue.


Del
fire*, smoke*, photoshopCS3
Charlotte Public Television


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Del Holford
Re: Commercial Music Usage Background Information Please
on Jul 30, 2007 at 8:36:24 pm

http://www.videouniversity.com/copyright.htm
Here's the article. HTH

Del
fire*, smoke*, photoshopCS3
Charlotte Public Television


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cow
RocklinDave
Re: Commercial Music Usage Background Information Please
on Jul 30, 2007 at 11:50:45 pm

Many thanks for this link. It answers many of the questions I had. It (and other sources) is still a bit vague on a few fair use issues, but all in all very helpful.


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cowcowcow
walter biscardi
Re: Commercial Music Usage Background Information Please
on Jul 31, 2007 at 12:08:19 am

[RocklinDave] "It (and other sources) is still a bit vague on a few fair use issues, but all in all very helpful."

Fair use really only applies to news stories and documentaries that are about the music itself, the composer or the singer. Even there, it's not a black and white "yes you can use it for this story." I remember at CNN very often we avoided music by Michael Jackson for example, even though we were doing a story about him and his music. We would ONLY use the music videos as they were released to us by the record label.

Wanting to use music in the background of a corporate video requires permission from a whole host of people from the artist, to the record label to the composer and often others. You have done the correct thing to protest this issue.

If this client insists on using this music, I would insist that they sign a release taking full responsibility for any legal action that occurs as a result of the use of said music and I would even float it by their supervisor if there is one. This document would show that you have raised the issue of improper use of the music and if any legal action was taken against your group, you could at least have written proof of this. It's not failsafe, but it's better that saying "I told them not to use that music" after the fact.

Walter Biscardi, Jr.
http://www.biscardicreative.com
HD Editorial & Animation for Broadcast and independent productions.

All Things Apple Podcast! http://cowcast.creativecow.net/all_things_apple/index.html

Read my blog! http://blogs.creativecow.net/WalterBiscardi


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cowcowcowcow
Mark Suszko
Re: Commercial Music Usage Background Information Please
on Jul 31, 2007 at 12:22:47 am

I work in a very similar government video job, and often have to deal with this kind of thing from first-time clients. They however completely understand once we explain things to them, and point out our huge library of cleared music on CD plus SmartSound and Several other music synthesis programs for generating original music. For the type of person who is especially persistent, I often volunteer to find or compose a "sound-alike" tune with a similar chord structure but enough variance to make it a separate and distinctive work. If all those steps fail, usually referring the person to their own agency's legal affairs office to get a "permission slip" assures they never come back. :-)


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cow
RocklinDave
Re: Commercial Music Usage Background Information Please
on Jul 31, 2007 at 12:42:55 am

Thanks for the suggestion.

To clarify: We own a good music library, and the client was informed of the possible legal issues, but told us "we've done this for years, and the developmentally disabled kids really need current songs with lyrics that they relate to them". I understand their argument on an emotional level, but completely disagree on a legal level. We will be sending out 50 or 60 copies of this after a group presentation. Unfortunately, I am not in a position to have made the call, but I did make my position very clear before-the-fact. I probably should have put it in writing as well!


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cowcowcow
Doug
Re: Commercial Music Usage Background Information Please
by
on Jul 31, 2007 at 4:20:00 pm



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cowcowcowcow
Arniepix
Re: Commercial Music Usage Background Information Please
on Jul 31, 2007 at 7:39:33 pm

[RocklinDave] "...the developmentally disabled kids really need current songs with lyrics that they relate to them"

To which the answer should be, "Then you should buy the proper cleances for these songs."

This is why there are 'needle drop' services, which often have cleared versions of popular songs available.

Arnie

Now in post: Peristroika, a film by Slava Tsukerman

http://www.arniepix.com/blog


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cowcowcow
RocklinDave
Re: Commercial Music Usage Background Information Please
on Jul 31, 2007 at 7:57:34 pm

I'm interested in this needle-drop clearance route. Are we talking hundreds, or thousands of dollars per song for 50 disk copies? Is there a one-stop shop for this, or a number of places? Thanks.

Dave


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cowcowcowcowcow
Tim Wilson
Fair Use resources
on Jul 31, 2007 at 10:31:54 am

[walter biscardi] "Fair use really only applies to news stories and documentaries that are about the music itself, the composer or the singer. Even there, it's not a black and white "yes you can use it for this story.""


Since the issues come up here all the dang time, from various perspectives, here are some of my very favorite web resources.

The Stanford Copyright and Fair Use Center has a heavily scholarly orientation, maybe moreso than you'll find useful. But the coverage here is certainly exhaustive. http://fairuse.stanford.edu/

One of the coolest things about it is a free, digitized version of Stanford's Lawrence Lessig, called Free Culture. He's been a pioneer on rights in the electronic age from pretty much the beginning, and has fought vigorously against the rapidly diminishing rights that we have, both as creators and consumers of media. Gotta love this:

As more and more culture becomes digitized, more and more becomes controllable, even as laws are being toughened at the behest of the big media groups. What's at stake is our freedom--freedom to create, freedom to build, and ultimately, freedom to imagine.

Like I said, you can download a free copy of the book with rights to reuse and remix for non-commercial purposes, so he's putting his money where his mouth is.

If you're going to get into a fight about rights, definitely better to know the real lay of the land. Even if you're not a scholar, definitely a site worth checking out.

More oriented toward practice than legal underpinnings or broad social examples, the Center for Social Media at American University is amazing. They offer what they call "Fair Use and Free Speech Resources." Note that they, like Lessig, equate the two. There's a goodly pile of articles to support documentary filmmakig in particular, as well as one on "participatory video." Again, well worth checking out. http://www.centerforsocialmedia.org/resources/fair_use/

Those who *do* want to use music in a fair use context should note that there's not a lot of leeway here.


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cowcowcowcow
Todd at Fantastic Plastic
Re: Fair Use resources
on Jul 31, 2007 at 3:06:25 pm

"If this client insists on using this music, I would insist that they sign a release taking full responsibility for any legal action that occurs as a result of the use of said music and I would even float it by their supervisor if there is one."

That's a good idea in theory, but in practicality (if someone took you to court) it won't hold up. It might show "good faith" but it does not actually release the producer from any liability. It'd be a bit akin to shoplifting, getting caught, but telling the cop "My buddy said it's ok, he signed a note taking the blame."

In some instances a signed "waiver" like that might actually hurt, because you can no longer "play dumb"... you now basically have paperwork saying that you fully know you shouldn't be using the music.



T2

__________________________________
Todd Terry
Creative Director
Fantastic Plastic Entertainment, Inc.
fantasticplastic.com






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cowcowcowcowcow
David Roth Weiss
Re: Fair Use resources
on Jul 31, 2007 at 5:45:43 pm

[Todd at Fantastic Plastic] "In some instances a signed "waiver" like that might actually hurt, because you can no longer "play dumb"... you now basically have paperwork saying that you fully know you shouldn't be using the music."

Absolutely true!!! Knowing that its wrong beforehand constitutes a willfull act. As you will see below, in the eyes of the law a willful act of copyright infringement carries penalties that are indeed much more severe.

The law reads as follows: "In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200."

David Roth Weiss
Director/Editor
David Weiss Productions, Inc.
Los Angeles

POST-PRODUCTION WITHOUT THE USUAL INSANITY

A forum host of Creative COW's Business & Marketing, and Indie Film & Documentary forums.





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cowcowcowcow
grinner
Re: Fair Use resources
on Jul 31, 2007 at 6:43:19 pm

It's best to just not wallow with pigs. You will get dirty.
I once had a boss that loved to pirate not only music but movie content. Didn't bat an eye at it. I knew if/when push came to shove, he'd certainly throw me, the person that pushed the red button under the bus. No thanks.
heck, I had a client try to get me to pirate a freakin FBI warning.
lol
There is alot of money in compromising principals but not much pride involved.



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cowcowcowcow
Ron Lindeboom
Re: Fair Use resources
on Jul 31, 2007 at 8:12:40 pm

[grinner] "I once had a boss that loved to pirate not only music but movie content. Didn't bat an eye at it. I knew if/when push came to shove, he'd certainly throw me, the person that pushed the red button under the bus."

Great point, Grinner.

Some people believe that they can get a release signed absolving oneself of liability in these matters. It is simply not the case. You cannot in any court of law I am aware of, get a release signed that allows you to break a law and assign the responsibility to someone else -- not when you are the one who is doing the work.

Beware of red buttons that place oneself in front of buses,

Ron Lindeboom


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Steve Wargo
Re: Commercial Music Usage Background Information Please
on Jul 31, 2007 at 11:27:32 pm

For a free consultation:

http://www.bzrights.com/

More info:

http://www.bzrights.com/101.htm

This is who we use. They are right on the money.

Steve Wargo
Tempe, Arizona
It's a dry heat!

Sony HDCAM F-900 & HDW-2000/1 deck
5 Final Cut Pro systems
Sony HVR-M25 HDV deck


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Kerry Brown
Re: Commercial Music Usage Background Information Please
on Aug 1, 2007 at 12:47:20 am

Check out "ZOOM"
http://www.zoomlicense.com/

KB


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cowcowcowcow
tony salgado
Re: Commercial Music Usage Background Information Please
on Jul 31, 2007 at 8:30:32 pm



Can you get a release for any other crime such as murder, robbery or other?


So why would you think a release for a federal copyright infringement would be any different?

The fact is clear the client is asking you to become a party to a crime and you want no part in it.


Plain and simple "do not pass go".


Tell them you can do all the other work which is legal but any violations of established federal or state laws you will be forced to comply with.



Tony Salgado


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cow
beenyweenies
Re: Commercial Music Usage Background Information Please
on Aug 1, 2007 at 12:30:08 am

I know this issue has been hammered about already, but I just wanted to weigh in briefly. Here are the four benchmarks used to evaluate Fair Use:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.



In short, you could use a popular song in an internal-use corporate video because:


1. It is not commercial in nature - the work is for private use

2. The song does not make up a substantial portion of the work you have created. If the work was little more than the song with a blank screen, that might be different but the song is more supportive than substantive

3. The work is not being resold to the public, so the copyright holder could not claim damage to market value or lost revenue.



If the government agency you are doing the work for is planning to sell the video, it is illegal. If they are merely showing it to people or even giving it away, that is non-commercial in nature, and the plaintiff could not prove damages since no profit was made.



Brendan Coots

Splitvision Digital

http://www.splitvisiondigital.com


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cowcowcowcowcow
Mark Suszko
Re: Commercial Music Usage Background Information Please
on Aug 1, 2007 at 1:24:51 am

Fair Use does you no good up front.

It only comes into play as your DEFENSE when you are hauled into COURT to defend yorself against a claim of a copyright violation. It may or may not protect you; that's up to a judge. But tell me, WHY would you open yourself and your clients up to costly litigation in the first place? Can you afford the weeks or months the case will take to work itself thru? Do you want to spend production funds or profits on attorney fees and court costs, just to prove your point? Do you think this would make you look good to future clients? Even if you win, you lose.

Fair Use is not some miraculous fairy forcefield around your project, or a magic incantation to make lawyers turn tail and run away. Your noble intentions in the program are no defense at all. You should consider it the last life preserver after all other strategies have been exhausted, because music companies have deep pockets for their legal teams to work from. You on the other hand, may have a small business with loans secured against your personal property. Is this guy's need to hear "Somewhere Over The Rainbow" on his touching kid's video for free, worth you losing your studio, car, house, everything? Because worst case, it could happen. Likely? Can't say. Possible? Most definitely.

Go ahead with this and you are playing Russian Roulette and the "boss" is handing you extra bullets each time you spin the chamber. Some day the gun will go off.





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beenyweenies
Re: Commercial Music Usage Background Information Please
on Aug 1, 2007 at 4:55:48 pm

I admit that I'm no lawyer, but I would disagree here. If someone hires me to create a video with copyrighted material, as a for-hire artist I am not violating the law by including that song. THEY are violating the law by distributing the work. It's not against the law to mix a song into a video, it's illegal to distribute that work in a commercial capacity, which the production company is not doing in this case since they are merely creating a video at the request of the client as a for-hire artist. Remember the four benchmarks against which these issues are weighed - commercial use, affect on market value etc. None of these issues are raised when creating a video for a single entity - what they do with it is another matter and is not your legal concern.

I would also add that a good contract should make it very clear that copyrighted material will only be used at the client's request, and as such they assume all legal responsibility for the inclusion of such materials. While contracts do not provide legal cover for violating the law, such inclusions do show that it is the client, not you, that has chosen to use the material.

To me the bottom line is quite simple - in copyright violation cases the copyright owner will be going after whoever distributes the work, not the person who created it, simply because there isn't sufficient cause to pursue a for-hire artist, nor sufficient damages to justify a lawsuit. In terms of your aversion to even risk it, I agree that it is better to be safe than sorry, but this is one issue I think should be weighed on a case-by-case basis, not an absolute rule.

Brendan Coots

Splitvision Digital

http://www.splitvisiondigital.com


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Mark Suszko
Re: Commercial Music Usage Background Information Please
on Aug 1, 2007 at 6:08:17 pm

Quote: " I admit that I'm no lawyer, but I would disagree here. If someone hires me to create a video with copyrighted material, as a for-hire artist I am not violating the law by including that song."

This sentence is about 50% correct.:-)

The fine point missed is, you took money to perform that work. That kicks it into a different arena. A home hobbyist making video mix tapes and sharing them with family with no exchange of money is different from a guy who charges money to take known copyrighted material and incorporate all or part of it into another creative work without a rights clearance.

If you have a family depending on your income, you should be careful in the risks you expose yourself to. As I said, likely? Probably not. Safe? Absolutely not.


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Nick Griffin
Re: Commercial Music Usage Background Information Please
on Aug 1, 2007 at 8:19:44 pm

Mark is completely correct on this Brendan and those of us with things to lose (houses, bank accounts, etc.) are best to avoid any activities which put them at risk. Even when you prevail in our legal system, once legal fees and lost productivity are factored in you can still be a HUGE loser.

What I ESPECIALLY think is brilliant is Mark's idea: "... referring the person to their own agency's legal affairs office to get a "permission slip" assures they never come back. :-) Not just in governmental organizations like Marks, this should work in corporate, too. Just say, "Sure, no problem. Just get me a note from your lawyer saying that this is OK."

Of course some of us who are in business would prefer that the client does come back and not off on an endless search for the ever illusive legal "permission slip."


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David Roth Weiss
Re: Commercial Music Usage Background Information Please
on Aug 1, 2007 at 10:24:00 pm

[beenyweenies] "If someone hires me to create a video with copyrighted material, as a for-hire artist I am not violating the law by including that song."

If being hired to perform illegal jobs offered protection from the law, there'd be fewer people in jail. "I'm just following orders" didn't work at Nuremberg, nor does it work today.

David Roth Weiss
Director/Editor
David Weiss Productions, Inc.
Los Angeles

POST-PRODUCTION WITHOUT THE USUAL INSANITY

A forum host of Creative COW's Business & Marketing, and Indie Film & Documentary forums.





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beenyweenies
Re: Commercial Music Usage Background Information Please
on Aug 1, 2007 at 11:22:30 pm

I think I've been misunderstood here. What I've been saying is that, based on the poster's definition of how the work will be used, it technically falls under the Fair Use rules:

#1 - Purpose and character of use. The courts are most likely to find fair use where the use is for noncommercial purposes. Scholarly work is fair use, use in a classroom is fair use.

#2 - Effect on the potential market for or value of the protected work. The courts are most likely to find fair use where the new work is not a substitute for the copyrighted work. If it can be shown that the public is not only confusing your work with the original, but also buying yours instead because it is less expensive you have a real problem.

Given that the work will, as I understand it, be used in an educational manner, it falls under Fair Use guidelines. Since copyright cases go through Federal courts, it is highly unlikely that a company/individual would pursue such a complex and costly case that is so unlikely to end in their favor. Sure, be safe rather than sorry, I almost never allow clients to use copyrighted works. But the poster didn't ask what was the safest option (because that's pretty obvious) he asked what the LAW was.

Copyright law is definitely murky, but that doesn't mean people should scaremonger with talk of a studio owner's assets getting seized and the like unless you can cite examples of studios being shut down for using a copyrighted song at the client's request. In the case the poster describes, the copyright holder would have almost no legal recourse against the studio (other than a cease and desist perhaps). Since the client is requesting specific music, the studio is merely assembling various components per the client request, they are NOT passing it off as though the song were their own work and selling it as such.

Brendan Coots

Splitvision Digital

http://www.splitvisiondigital.com


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