Hi, Peter. Where is your practice?

Actually, Doug, it does. With the exception of fair use, and one or two other statutory exceptions, the copyright owner has the _absolute_ right to say, "I don't want anyone performing, copying or distributing my protected expression." It doesn't matter whether, as in your Fridays example, the economic impact is minimal (notwithstanding fair use exceptions) or the use is de minimus.
Family members singing in public would probably come within fair use. Waiters singing at your table, less so. I'm not aware of any opinions on the subject. If you'd like to share a cite, I'll take a look at it.
Lack of harm to the copyright holder is not a defense to infringement, except in a fair use context, and in that respect, one of the tests is harm to the market for the work. However, none of the tests are dispositive, nor are the four enumerated tests in the statute exclusive.
In your article, you said:

"If the music is only ancillary and incidental, and not heard as part of the video, but merely ‘noise’ in the background, you are probably OK."

That's wrong, as a matter of law. Someone who does this is not "probably ok." They might be okay depending on what jurisdictions they are in, but in others they most certainly will not be okay.

Um, yes, that's quite clear.
In my opinion, its due to too many special interest groups telling legislators what they think, and legislators listening. The recent copyright term extensions and the DMCA are proof of that.

I have no idea what you mean by this, but fair use is fair use, i.e. an equitable doctrine, subsequently codified, that tries to balance First Amendment and equitable considerations against the absolute right granted by copyright.
As a matter of fact, there isn't a lot of precedent with respect to incidental reproduction, which is one of the problems. Of the cases which address it, most of them hold that news use won't constitute infringement. There are other cases which hold other uses are infringing. Do a search here on name and "incidental reproduction" if you want the case cites.

And now its been vetted by another IP attorney. As I said, it's an excellent article and quite accurate, with the two minor exceptions I mentioned.

Paul N. Tauger, Esq.
California State Bar No. 160552

If you want to know the firm in which I'm an IP partner, you'll have to do a google search. I don't speak for them here.

Nope, that's not the test, though it's a common misconception that's often repeated here. As a practical matter, most copyright holders won't sue for de minimus infringements, or where there is little prospect of recovering damages. However, I bring suits for my clients _all the time_ for what might seem to someone a de minimus infringement. The test, for my clients, is whether it makes business sense to bring the law suit. Often, the answer is, "yes," even when damages can't be collected, for a number of reasons, including sending a message to other potential infringers. However, the _legal_ test for copyright infringement is this, and only this: Does the plaintiff own a valid copyright in the expression at issue, and did the Defendant copy it. Fair use is a defense to infringement. Whether it applies or not is something that will be determined by the court, and only after a law suit has placed a specific use at issue. Whether there has been economic harm (and note that there other judicially-cognizable forms of harm beside economic injury) is one of four enumerated fair use factors, but it is not dispositive and there are others besides those in the statute which are considered.

Different take on "Poor Man's Copyright"?
 

The exceptions I was referring to are indeed Fair Use. While it's definitely an area that folks have a hard time with, hence my exceptionally small explanation of Fair Use, it's one that many, many videographers turn to when they use their "10 seconds" or whatever their buddy told them they could use. I didn't realize you were an attorney, or I would have better explained what I meant by "not by a long shot."
Fair Use and Public Domain have both come back to bite me in the butt. Disney once used some of my music, citing it as Public Domain because they thought that indigenous music falls into the public domain. It wasn't my performance, they had someone else perform my copyrighted melody. I also have had experience where someone sampled my music for a drum loop in a commercial recording. We lost that initially, and the decision was set aside on appeal.
Peter, thanks for the clarification. Paul, thanks for the additional education. Again, not realizing that you (or anyone else here) is an attorney, I tried to keep my response basic. I don't dare do specific, I'm not an attorney. :-) By being basic about a specific subject has now caused me to look more than a little foolish. (I think for instance by my citations in the article, you probably recognize that I realize there is more than economic harm as being one of the tests)
I agree, special interest groups have controlled far too much of the dialog on this issue, hence my comments that WE, as non-special interest groups, have said too little. There needs to be a manner in which common man can license copyrighted materials for use in videography and like commercial pursuits where a specific number of licenses may be issued for a particular purpose. I'm not talking about the $10.00 per song in a small replication product or whatever that a lot of people wish for, admin costs alone wouldn't be covered, let alone royalties for the artist, mechanicals or otherwise.
FWIW, as a full-time artist whose primary income is based in creative pursuits, I'm a big fan of copyrights, and as the tone of my article implies, I'm more interested in educating folks than pursuing them for copyright violations. I appreciate the caution on incidental. The citations I'm aware of involved American Express and a documenary film maker, and they prevailed over the concert promoter and band whose music was in the background. The test, as it was explained to me, was "was the intent of the videographer to make the background/incidental music perceptable, or was it indeed incidental?" Perhaps I misunderstood the explanation. I'll amend my article for future readers.
Regardless, thanks for the dialog, and I'll try to look less foolish in the future.

Heh, I'm thinking we should probably give Paul a custom title, such as "Attorney at Law" or some such, so that our readers can readily identify him as a qualified and experienced lawyer. He definitely knows his business, especially regarding media law. We're fortunate to have him, as well as a gifted musician and respected audio guru, together on our boards here. Cheers,

Doug, believe me, you don't look foolish. You have a very good understanding of copyright and your article is one of the best explanations of the subject I've seen on the web. I wouldn't hesitate to recommend to anyone here with questions.

I agree with you that there should be some mechanism that would allow reasonable licensing of copyright material. I've spoken, informally, with BMI's counsel about a "videographers license," that would allow, for example, wedding videographers to use the bride's favorite song in a wedding video. Unfortunately, there was little interest on BMI's part. This is probably not surprising, since BMI probably doesn't see much potential income from such a license, though they might be surprised.

With respect to incidental reproduction, I suspect that, ultimately, it will be deemed a fair use. Unfortunately, the decisions to date are inconsistent and, until a couple of appellate courts rule, it will remain an open question and subject to the whims of whatever district court judge this question comes before. There is, as yet, no clearly-defined test -- it varies from jurisdiction to jurisdiction.

I'm only an amateur videographer, but I'm going to try to sell my travel videos on the internet; incidental reproduction is something I'm very concerned about, as the issue comes up in what I shoot fairly often. For now, I'm careful about what I include. My first "commercial" release, which is about India, only uses field recordings of itinerent musicians playing traditional folk music (and, after hearing of your experience -- I'm glad you prevailed, by the way -- I'm going to review what I'm using), and I've avoided using an incidental recordings.

Discussion w/RIAA
 

Paul,
It's gonna take a collective with the RIAA and the MPA to create this sort of movement. I'd love to see an on-line access for people wanting to make say....fewer than 1000 copies and a license fee of a couple hundred bucks, like a Harry Fox online, with stipulations as to how the music is used, almost like a performance royalty but with an attached sync license. Mechanicals are compulsory, so that's a non-issue as far as I'm concerned.
it's not fair that an honest videographer isn't capable of competing with a dishonest one who will risk his business by using copyrighted works. It's also not fair, IMO, that a wedded couple can't have their favorite love song on their wedding video that they hand out to their 10 friends or whatever.
I also am adamant that copyright holders should be paid for their work. Finding that middle ground will make someone very, very rich if they can put the effort into getting publishers to come together and make this possible. Can you imagine an iTunes type interface where videographers could order up a pop song for 25.00 or so with a restricted use sync license?
that would be so wonderful for everyone. A total win for every one.

Isn't this sort of the direction that things might be going with the whole "Creative Commons" thing?

http://creativecommons.org/

For example, there's http://www.magnatune.com which is attempting to follow the Creative Commons guidelines, and allow you to select a song, the 'Territory' for distribution, and then instantly spit out a licensing agreement based on your choices.

They wish.
Creative Commons is for artists who don't have publishers, record deals, studio deals. For instance, due to my publishing deal, even if a record is never released I can't do a Creative Commons deal. And frankly, why should I? Who handles admin? The artist does. So...is the artist now an artist AND a publishing admin? Who tracks the use?
No, Creative Commons is a completely different subject in a different light. You'll never see a Celine Dion or Garth Brooks or Whitney Houston, etc be a part of a common copyright agreement.
C/C is a brilliant concept, for folks that are in a different arena than 'big names' and frankly, the big theft of music is from the big names, not the folks that are using C/C at this time.
Eventually, this will change, I think. But probably not for a decade at the least, and much longer than that, I believe.
One day, artists will not sign to a label, they'll sell everything direct and have to employ their own sales, marketing, yadayadayada. It's too bad that lay people don't understand how the industry really works. People don't realize that when I create a song, I literally employ a hundred plus people in the pursuit of making that song happen. I don't pay them, but they all get a piece of the pie. And as an artist, I don't disagree with that. My job is making music. Not tracking, administering, selling, packaging, shipping, designing covers, etc etc.

Doug,
I would be extremely in favor of compulsory licensing for music recordings. But I suspect it will require a change in the law to happen, that RIAA will never agree.

As someone who is fortunate (?) enough to be married to an IP Attorney,(One who was deeply involved in RIAA litigation) I can definately state that the board is lucky to have Paul weigh in occasionally on Trademark/Copyright matters. Having Paul on the board is the next best thing to being married to one! (Mmmm, let me think about that for a minute.)

Yes Peter, I agree, the RIAA will never go for this concept at any near future. What might happen in several years though, is that musicians will begin to flee their labels and the Holy Grail of musicianship..."Our Label Contract" and at some point the members of the RIAA might be forced to consider such a drastic change. Annie Lennox set the industry on it's butt by what she's done, and with Madonna, Janet Jackson, Garth Brooks, Evanescence, Thursday, and other bands all striking their own P&D deals....I'd say the writing is on the wall. In effect, Apple is going to become a label of sorts because the iStore/iTunes will be a huge reseller of music. Of course, it would be sensible if there were a compulsory attached in a second "Buy Me" column for those that might want to use the song for more than just listening to. Wait a minute...That would be sensible. Therefore it will never happen. :-)

This makes me think of a very interesting article I read on a similar topic just recently. Written by a NY subway musician who is a journalist by day (and makes more money down there than above ground).

http://www.washingtonmonthly.com/fea....thompson.html

Not a bad write, thanks for the link. But at the same time, it's written by someone whose sole income isn't based on his music. I don't think it matters whether he sells his CD's or not, after listening to his music on his website, it explains why he's not got a label deal. (Michael Hedges wannabe) He doesn't even know how to upload his media correctly but he chides labels for not 'getting it." I agree they don't, but not in the way he suggests. File sharing is NOTHING like being a subway musician. File sharing is like cloning that subway musician and putting him/her in every home in America WHETHER HE WANTS TO BE THERE OR NOT! That's the problem with file sharing, the creative has lost every concept of control of their works. That....is a violation of their constitutional rights.
While I don't point this at you Imran, the one thing I get so damn sick of is reading how "people have a right to listen to whatever they want wherever they want however they want it....for free" The world has gotten so used to having a soundtrack playing behind their lives that they expect that soundtrack to play for free. Wrong. Someone paid the cost of recording that soundtrack, it's theirs to control and be remunerated for. I challenge any street musician that has a day job to be a street musician full-time, and at the same time, maintain a decent quality of life. Only the IP related industries have people conspiring to steal their products 24/7. If any other industry saw this sort of behavior, we'd be living in a complete police state, IMO. If you steal a snickers bar right now, today, you are more heavily prosecuted than if you steal a song from a CD and replicate on Kazaa/Gnutella, Morpheus, whatever. That is so offensive it makes me sick to consider. No one has a right to music in their life unless they pay for it at some level. Even ancient Rome recognized this, so did England. And so did the founding fathers of this country. So if folks can't see the morality in it, then they need to at the least see the law in it.

Oh, I'm definitely not one to do the free downloading thing. I've downloaded in the past when it was a new thing, but as an artist of a different type myself (writer, primarily), I value the work of another artist enough to respect the fact that they created it with the desire to earn a living. It's their right. For a while now I've refused to download anything the artist hasn't given permission for, and I urge friends to do the same.

Heck, songs are only 99c a pop now on iTunes or whatever, and you can listen to them before you buy them. The only complaint I ever saw in file sharing that rang true to me is that record companies tend to bamboozle you a bit by shoving 11 crap tracks into a cd with 1 good track that they market in the most profitable way, regardless of the style or genre of the other 11 tracks. That's almost the textbook definition of bamboozle.

But iTunes and services like it have changed that. You buy what you like, when you like it. No force, no waste of your own money. And if you want a whole CD, it's usually only 9.99 - often cheaper than 99c a song. Or there's Virgin Music, where you can scan a CD and listen to every track in the store before buying.

I look at it this way - with every bad thing, comes good results (i.e., the fix). The thing the Internet has ultimately given people is the ability to really force change in generally unchangable corporate interests. It's a form of competition, though illegal it may be. Ultimately it caused companies like Apple to address the real issues of convenience, price, value, etc., and boom, they're raking in the bucks.

Now, like you mentioned Douglas, we just need an iTunes for video and film licensing. I agree that the Creative Commons thing will take a while to catch on, but in the past year or so, it's been popping up everywhere. I do think that while it will be hard to address the needs of currently established artists, I daresay that as time progresses, new artists will take it (or an evolution of it) to heart. Eventually, after all, U2 or Madonna surely HAVE to stop singing. But then again, there's the Rolling Stones, who absolutely refuse to stop, and will all probably die while on stage.

I do have high hopes for the next few years. I think, right now, for all types of media, we are experiencing the growing pains of a Distribution Renaissance.