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How do you bill for iTunes downloads?

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Milton Hockman
How do you bill for iTunes downloads?
on Nov 6, 2009 at 3:02:01 am

im working freelance for a production company and i had to download an iTunes song for the project. they told me to add it to my bill.

how do you all charge for that? should i only charge them $1? or should I mark it up?

if it matters, im working for a production company not directly with the client.

Owner
Plus More Media Group
Website Design - VA, Corporate Web Site Design - PlusMoreMedia.com
Marketing designs and videos that do more for your business!


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cowcowcowcowcow
Ron Lindeboom
Re: How do you bill for iTunes downloads?
on Nov 6, 2009 at 3:47:15 am

[Milton Hockman] "im working freelance for a production company and i had to download an iTunes song for the project. they told me to add it to my bill. how do you all charge for that? should i only charge them $1? or should I mark it up?"

If you are the "buyer of record" and that song ends up in a production, you are now what we call "totally hosed" and are legally responsible, and so is the production company you work for, when the copyright holders of that song come after you.

Copyright laws are there to give legal protection to the one that owns them, and they are there to act as The Hammer with which to pound, like nails, the ones who infringe upon those copyrights.

Ron Lindeboom


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cowcowcowcowcow
Brendan Coots
Re: How do you bill for iTunes downloads?
on Nov 6, 2009 at 5:40:37 am

Ignore this at your peril. Seriously, you CAN NOT just download songs from iTunes and use them in a commercial production of any kind, internal OR external. The owner of the copyright can (and will) sue you and the production company for loads of money if they ever find out. Even if they don't sue you, they will absolutely demand compensation that is probably 20X the total value of the job. It can be a career ender.

Sounds like maybe it's too late, you better just hope that it's a small internal project that never sees the light of day.

Brendan Coots

Splitvision Digital

http://www.splitvisiondigital.com


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Jeff Bonano
Re: How do you bill for iTunes downloads?
on Nov 6, 2009 at 4:55:11 pm

Basically what Ron and Brendan are saying is:

You can't bill them for it...


..and not to beat a dead horse, but an extra note for you to chew on is another important one.

If you did charge them for it, not only are you accepting responsibility, but you are adding fuel to the fire by making money from reselling someone else's music. It would be like you buying stock footage and then reselling it as your own.

I would seriously contact your client and ask them to destroy that project and go out and buy some royalty free music to replace that itunes music. It's still possible to save the project and your reputation!

Good luck!

Jeff Bonano
http://www.bonanoproductions.com

"I want to have a cool quote at the bottom of my signature, just like everyone else on the cow forum!" -Jeff Bonano


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Brendan Coots
Re: How do you bill for iTunes downloads?
on Nov 6, 2009 at 7:47:45 pm

Ah, good point on the resale factor, that would actually be viewed even worse in court than just using the music illegally because, at that point, they can prove damages and willful infringement.

Brendan Coots

Splitvision Digital

http://www.splitvisiondigital.com


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Richard Herd
Re: How do you bill for iTunes downloads?
on Nov 6, 2009 at 8:07:27 pm

§ 504. Remedies for infringement: Damages and profits3

(a) In General. — Except as otherwise provided by this title, an infringer of copyright is liable for either —

(1) the copyright owner's actual damages and any additional profits of the infringer, as provided by subsection (b); or

(2) statutory damages, as provided by subsection (c).

(b) Actual Damages and Profits. — The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer's profits, the copyright owner is required to present proof only of the infringer's gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.

http://www.copyright.gov/title17/92chap5.html


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Ron Lindeboom
Re: How do you bill for iTunes downloads?
on Nov 6, 2009 at 8:37:45 pm

Yes, and all you have to add to that is the cost of all your legal fees. Oh, and in some jurisdictions, the legal fees of the prevailing party if you lose. Some jurisdictions mandate the loser to pay.

Ron Lindeboom


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Richard Herd
Re: How do you bill for iTunes downloads?
on Nov 7, 2009 at 7:52:13 pm

Section C

(c) Statutory Damages. —

(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.

(2) 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. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; or (ii) a public broadcasting entity which or a person who, as a regular part of the nonprofit activities of a public broadcasting entity (as defined in subsection (g) of section 118) infringed by performing a published nondramatic literary work or by reproducing a transmission program embodying a performance of such a work.

(3) (A) In a case of infringement, it shall be a rebuttable presumption that the infringement was committed willfully for purposes of determining relief if the violator, or a person acting in concert with the violator, knowingly provided or knowingly caused to be provided materially false contact information to a domain name registrar, domain name registry, or other domain name registration authority in registering, maintaining, or renewing a domain name used in connection with the infringement.

(B) Nothing in this paragraph limits what may be considered willful infringement under this subsection.

(C) For purposes of this paragraph, the term “domain name” has the meaning given that term in section 45 of the Act entitled “An Act to provide for the registration and protection of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes” approved July 5, 1946 (commonly referred to as the “Trademark Act of 1946”; 15 U.S.C. 1127).

(d) Additional Damages in Certain Cases. — In any case in which the court finds that a defendant proprietor of an establishment who claims as a defense that its activities were exempt under section 110(5) did not have reasonable grounds to believe that its use of a copyrighted work was exempt under such section, the plaintiff shall be entitled to, in addition to any award of damages under this section, an additional award of two times the amount of the license fee that the proprietor of the establishment concerned should have paid the plaintiff for such use during the preceding period of up to 3 years.


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Ty Ford
Re: How do you bill for iTunes downloads?
on Nov 20, 2009 at 10:13:03 pm

Get the client sign a transfer of rights letter absolving you of liability and placing future use on them.

Write it up yourself. Doesn't have t be fancy.

Regards,

Ty Ford

Want better production audio?: Ty Ford's Audio Bootcamp Field Guide






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Craig Seeman
Re: How do you bill for iTunes downloads?
on Nov 20, 2009 at 10:59:38 pm

You can't transfer rights you don't own. I don't believe you can "resale" or transfer iTunes song ownership (private use). If you could then it shouldn't simultaneously exist on your computer to use.
If they own it and you use it, it's still illegal.



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Todd Terry
Re: How do you bill for iTunes downloads?
on Nov 21, 2009 at 12:03:39 am

[Ty Ford] "Get the client sign a transfer of rights letter absolving you of liability"

Yeah, as stated before that doesn't work. Just because someone else gives you "permission" to do something illegal doesn't make it any less so. They may say they are willing to take the heat for you, but it just doesn't work that way.

If it did, a hit man could knock people off left and right and never fear going to jail himself. "No, no... the lady told me I could kill her husband. See? Here's my copy of the receipt I gave her!"


T2

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






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Ty Ford
Re: How do you bill for iTunes downloads?
on Nov 21, 2009 at 1:58:52 am

Actually it's very common, among other places, with any kind of talent, ad agencies and clients.

The ad agency get the client to sign a transfer of rights from the agency to the client if and when the client wants to start doing their own time and space buying. The use of the talent is no longer under control of the original purchaser (the agency). As such, the client takes full responsibility for any fees due.

Happens often enough that AFTRA and SAG have standard transfer of rights forms. I have a blank one somewhere in my files.

Regards,

Ty Ford

Want better production audio?: Ty Ford's Audio Bootcamp Field Guide






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Craig Seeman
Re: How do you bill for iTunes downloads?
on Nov 21, 2009 at 2:17:08 am

[Ty Ford] "The ad agency get the client to sign a transfer of rights from the agency to the client if and when the client wants to start doing their own time and space buying. The use of the talent is no longer under control of the original purchaser (the agency). As such, the client takes full responsibility for any fees due. "

You can certainly transfer the rights if you actually own the rights you're transferring. That's generally not the case with iTunes downloads.



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Ty Ford
Re: How do you bill for iTunes downloads?
on Nov 21, 2009 at 2:26:45 am

It was not specified as to what was downloaded. I have at least one song on iTunes. If I cut a deal with someone and they wanted to download the tune from iTunes or SoundClick, the site where most of my stuff is, that would be fine. Not free, but the download is just a delivery method.

Ty Ford

Want better production audio?: Ty Ford's Audio Bootcamp Field Guide






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Craig Seeman
Re: How do you bill for iTunes downloads?
on Nov 21, 2009 at 6:51:18 am

I'd think you'd want to deliver AIF or WAV rather than have someone use a heavily compressed AAC file as an audio master.

I have been in the position where I was given permission to use material from the rights holder from a heavily compressed source. It also was from a recording artist who owned all their own material. In fact they had left a record label in part, because they wanted complete ownership and control. I asked for "master" quality and provided FTP for delivery.

AAC might be good for listening but I wouldn't want to run it through another round of compression after editing.



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Mike Cohen
Re: How do you bill for iTunes downloads?
on Nov 6, 2009 at 5:11:17 pm

Milton,
I checked out your website and see you have over 400 posts on the COW. Based upon what I have seen, you should know better.

But you're human, so this is your one allowed moment of weakness for the year.

How do you charge a client for an iTunes download? You "just say no."

If the client insists and say "oh, this is just for our sales meeting" then say no again. In-house projects for private viewing will wind up on YouTube within a day. Then you have XYZ company name and WXY song synced up for eternity. Then if the company gets sued or a cease and desist, they will blame you. It is, after all, your job as a vendor to tell the client what they need, and to dissuade them from doing anything you wouldn't.

As Peggy Olsen likes to say "the client doesn't always know what's best."

But you as a vendor do.

If you are as up the river and paddle-free as you appear to be, then you have to talk to the guy who sold you the raft or abandon ship and start dogpaddling.

Good luck.

Mike Cohen


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Craig Seeman
Re: How do you bill for iTunes downloads?
on Nov 6, 2009 at 8:50:27 pm

[Mike Cohen] "f the client insists and say "oh, this is just for our sales meeting" then say no again. In-house projects for private viewing will wind up on YouTube within a day. "

And it doesn't take YouTube either. I know someone who did this for a corporate video. The company "downsized" one of the viewers shortly after the video was made. Disgruntled former employee took video in hand to a family friend lawyer who new what path to take.



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cowcowcowcow
Richard Herd
Re: How do you bill for iTunes downloads?
on Nov 6, 2009 at 6:33:57 pm

Assuming permission is granted, it's not really worth marking up (unless your sales volume is pretty large).

Note: I do this a lot for the Summer Concert Series at Harveys Outdoor Arena and sometimes for the Harrah's Lake Tahoe South Shore Room, getting permission from the entertainers, and also I have vendors who do the same thing. It's just quicker-faster-cheaper to spend $1+ to download the songs rather than wait for the CD in the mail.


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Craig Seeman
Re: How do you bill for iTunes downloads?
on Nov 6, 2009 at 8:46:27 pm

The entertainer are often not the holders of the license for either the published music or the recording.

I know one group that actually left their record label over this and related reasons. They own the publishing and the recording rights. They sell less "units" (given the loss of major label marketing) but they actually make MORE MONEY since they own everything.



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Shane Ross
Re: How do you bill for iTunes downloads?
on Nov 6, 2009 at 11:46:13 pm

Well, to play devil's advocate here...let's assume that the said music will NOT be in the final. What you all mention is very very bad if the music that is downloaded is used in the final. Unless you license that music from BMI or ASCAP and pay the hundreds to thousands of dollars for it. In that case, YES, you bill them for that.

But what I tend to do with this music is use it as TEMP music. Something that will be replaced later by a composer, or some stock library music later down the road. Although, if it is going to be replaced with stock library music, I'd rather go for that FIRST, otherwise the client falls in love with the U2 track that you just laid in.

NO, I tend to download stuff like THE DARK KNIGHT or PIRATES OF THE CARRIBEAN and use that as temp music that is later replaced. In this case, the cost is eaten by me....for lunch. With crackers and a spot of tea.


Shane



GETTING ORGANIZED WITH FINAL CUT PRO DVD...don't miss it.
Read my blog, Little Frog in High Def


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cowcowcowcow
Jeff Bonano
Re: How do you bill for iTunes downloads?
on Nov 7, 2009 at 3:57:17 am

Well, we could consult the Magic 8 ball....

*shakes it and turns it over**

"Concentrate and ask again later"

Well that's no good...

*shakes it and turns it over...again**

"My sources say use royalty free music you have rights to and bill them for that to be placed in the project"

...
......

Ok, well....there you have it! The Magic 8 ball has spoken!

Jeff Bonano
http://www.bonanoproductions.com

"I want to have a cool quote at the bottom of my signature, just like everyone else on the cow forum!" -Jeff Bonano


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Ty Ford
Re: How do you bill for iTunes downloads?
on Nov 20, 2009 at 11:45:51 pm

What kind of music did you download? Was it cleared for your use?

Ty Ford

Want better production audio?: Ty Ford's Audio Bootcamp Field Guide






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