music licensing again...a tricky one though. at DVinfo.net

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Old December 11th, 2008, 02:13 PM   #1
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music licensing again...a tricky one though.

We are 2/3rds of the way through an edit and a chunk of footage we plan to use is of a school orchestra performing some well known music.

Firstly, whilst none of us in the office can identify the music (although we recognise it) we are at a loss as to whether we have to seek permission to use it in the film, which will be published internally within the clients firm (it was one of their schools we filmed in on this occasion).

I'm assuming we need to

a: Identify the music
b: Seek permission from the orchestra (no problem there)
c: Get permission from the original composer / label (budget already run out!)

Does this sound fair or is this incidental music that does not require license? The subject of the film is Arts in education, so we were filming in a school and they had a school orchestra!

Anyone help guide us on this one?
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Old December 11th, 2008, 05:06 PM   #2
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Laws very all over the place. While the general tone of the law is similar in virtually every country that is a signatory of the Berne Convention, the details can be quite different. You need to check with an attorney there in Germany familiar with both German and EU laws to get a definitive answer.

I'm not an attorney but from what I understand, for it to be considered "incidental" here in North America, it would have to have been something like a situation where the band is playing in the background while you interview the football coach or something like that. In other words, the band just happened to be there in the background purely by coincidence while you were shooting your primary subject. But if the subject of the shot IS the band playing, then it's not incidental and you'd need to clear the music. I would bet that since the subject of the film is Arts in Education, you'd have a hard time convincing a judge that footage of students doing Arts is just coincidence.
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Old December 12th, 2008, 01:50 AM   #3
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Basically you are correct.

The school should be able to identify the music as they played it.

Then you contact the copyright licensing body in your country and declare what you are doing.

If the video is non-commercial, it *may* be possible to get a general licence for this (I think you can do this in the UK).

I hpe this helps.
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Old December 13th, 2008, 12:04 PM   #4
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thank you both for your input. We were having a debate here in the office and had no luck coming up with a definitive answer other than that we should play safe.

We are a bit tight for time on this project so chasing around finding the song, copyright holder and gaining permission will probably be unrealistic (especially as the budget is gone on this one).

Normally things are a bit more easy to sort out but it got me thinking about how difficult this subject can be and how easily you could find yourself in trouble!

Normally it's easy. You use music you get permission and pay or buy royalty free. But there are always instances when it's not so clear!

Is there any definitive guide for using music in production on a continental law basis perhaps? It would be very useful!

Thanks again.
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Old December 13th, 2008, 03:27 PM   #5
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...
We are a bit tight for time on this project so chasing around finding the song, copyright holder and gaining permission will probably be unrealistic (especially as the budget is gone on this one).

....
OTOH, NOT clearing the song only to be sued later could cost not just the rest of this budget but the production company's entire assets. Bite the bullet.

It shouldn't be that hard ... Contact the band director and ask him to look at the sheet music. There's bound to be a publisher's name and copyright notice on it. Call 'em up. Chasing down the copyright shouldn't be any more complicated than those two phone calls. Record labels, etc, won't enter into it since you're not seeking any master use rights to a recording.
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Old December 13th, 2008, 09:00 PM   #6
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One more log on the fire, here in the U.S., if you were creating this film for instructional use it might (*might!) come under "fair use" provisions of the copyright law. IF it did qualify in this way, there might be no need to research copyright ownership. Of course the situation could be quite different in Germany.
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Old December 15th, 2008, 04:59 AM   #7
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Steve,

Don't worry. I value my company too much to take risks like that! A definite No No! I've put someone on the case to spend a day chasing down the song etc. We've re-cut a 2nd version with a paid up music bed (meant ditching the whole band section as obviously kids playing instruments to a corporate bed looks......ugh....bad!) and it's really to the detriment of the film.

If we strike lucky on the music we'll go for version 1. Fingers crossed.

My business is fairly new and as a cameraman for donkeys years before hand I just used to hand the tapes over at the end of the day and think nothing else of it. Now we are having to learn all about rights, usage etc we are sure that there must be a market out there for a beginners guide to using music in video/film production the legal way!

if I had the time I'd do it for sure!

Any takers perhaps?

Seth, the fair usage provision is indeed an interesting thought. This is 'technically' an instructional information video for in house use only so I'll look into that. Many thanks.

I think realistically it's time to contact a lawyer and find out the proper way.

Many thanks guys for your help.
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Old December 15th, 2008, 12:51 PM   #8
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Quote:
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Seth, the fair usage provision is indeed an interesting thought. This is 'technically' an instructional information video for in house use only so I'll look into that. Many thanks.

I think realistically it's time to contact a lawyer and find out the proper way.

...
Do a Google search for "music clearance" and "music rights clearance" ... there are companies that specialize in that sort of thing.

As for fair use as an instructional work, probably not likely. This side of the pond, "instructional use" is pretty much limited to in-classroom teaching uses conducted in an accredited school system, academic educational institution, or university. In-house and corporate training programs, private career colleges and business schools, etc, do not qualify. Nor do uses outside the classroom even by recognized schools and educational institutions count - incorporating music into productions that are to be used for fund raising, promotion, student orientation, etc, for example, does not come under the fair use provisions and it still must be properly licensed.
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Last edited by Steve House; December 16th, 2008 at 04:44 AM.
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Old December 15th, 2008, 09:15 PM   #9
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Steve,
I think realistically it's time to contact a lawyer and find out the proper way.
Many thanks guys for your help.
I'm not sure how it is over there, but Warner owns the rights to "Happy Birthday (to you)"

They paid $25 Million Dollars for it a few years back.
snopes.com: Happy Birthday Copyright

Regards,

Ty Ford
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