Suggestion for FAQ Update - Use of Copyrighted Music at DVinfo.net

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Old August 23rd, 2004, 04:09 AM   #1
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Suggestion for FAQ Update - Use of Copyrighted Music

I have a suggested change to the Business Forum FAQ:
http://www.dvinfo.net/conf/showthrea...&threadid=8725

It concerns the 2nd question in the Music Acquisition section:
Q: I'm editing a wedding video, the bride and groom want me to use certain music, what are the laws concerning doing this?

The answer provides a link to the below thread. However, the thread is long and winding, and it’s hard to determine the “final answer”.

It seems to me that the “final answer” to this question was posted by Sam Houchins II (see below quote).

I propose the following be adopted as the answer presented in the FAQ:

============================================
For ten or fewer copies of the same video, NO license is required IF the clients (bride and groom) provide the song from their own purchased copy of the song. If you provide the song from your own pool of music, you need a sync. license. This is based on a statement from Harry Fox Agency. You may want to consult with your attorney before using any copyrighted music. This is NOT a legal opinion – use at your own risk. For more information see the following:

DVInfo thread discussing copyright issues:
http://www.dvinfo.net/conf/showthrea...0920#post80920

Harry Fox Agency
http://www.harryfox.com/
==============================================


Here is the actual post by Sam:
http://www.dvinfo.net/conf/showthrea...0920#post80920

Quote:
Sorry if everyone's tired of this subject, but I thought the recent phone call I finally had with a human at Harry Fox's client relations division (where i'd been directed to inquire about obtaining a sync license) was the break in the case needed. Summarized, he explained:

>Mechanical license is not required. Mechanical license only applies to music-only copies of recordings like making / distributing CD's, tapes, records, etc.
>Synchronization is what applies here, syncing music/song to video/images.
>Sync licenses are only obtained through direct negotiations with the publisher(s). There are no fee structures, they can charge anything they want. There can even be four publishers involved for one song. All have to be contacted, all have to agree. One can say $1 per tape, another $40 each, another say $1000 flat fee, another can say no. It also takes alot of lead time to get any answer.
>Here's the kicker... he says that for ten or fewer copies of the same video, NO license is required IF the clients (bride and groom) provide the song from their own purchased copy of the song. If you provide the song from your own pool of music, you need a sync. license.
>Showing a love story synched with the client's music at the reception is ok, no license req'd.
>He agrees this has not been proven in courts nor written in stone, but is generally accepted as the standard. He says it is an oft asked question.
>He even likened it to compiling a cd for someone else. Charging for time and material to do that is also legal as long as the client provides the music and that music's been legally obtained (purchased and owned, not "shared" from downloading, etc.) and is for that client's use. He gave as example companies (in general, not specific names) that provide that very service (music only) operating in legal parameters without mechanical licenses, applying the fair use (personal) concept.
This forum is full of threads on this subject. And in many, if not most, of them, long time forum member and attorney Paul Tauger presents a clear argument that the law as it stands today does NOT allow copyrighted music to be used in wedding videos without a proper license.

However, it seems that the Harry Fox Agency has granted a waiver concerning this. If this seems to be the consensus in this forum, then we could help clarify this long-standing, confusing issue by updating the FAQ. It may even warrant a separate sticky thread.
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Old August 23rd, 2004, 09:48 PM   #2
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Good point. I'll make the change shortly, just got a pile of other stuff to get out of the way. If I haven't got it done by Friday, I could use a friendly reminder. :)
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Old August 23rd, 2004, 10:01 PM   #3
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Dylan

While I don't question the validity of Sam's post, personally I would recommend trying to get a Harry Fox rep to post this advice here (or allow their name to be attached to a post here) before adopting it as the "final answer." I think we could say from experience that not everything that "is the consensus" among dvinfo.net members is always the right answer. Not that we're not a savvy bunch, but we can't always be right...

Just my 2-cents
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Old August 23rd, 2004, 10:04 PM   #4
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John, in copyright matters there is rarely a "final answer/last word", at least, not without a judge... :)

I'll make it a healthy blend of advice. Interesting point about a Harry Fox rep. Might do a little research on that.
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Old August 23rd, 2004, 10:12 PM   #5
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You are correct about copyright matters, Dylan; my "final answer" comment was simply a reference to Jim's original post. I think Jim has a good idea, but I think it would be better to try to get a first-hand response from Harry Fox...
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Old August 23rd, 2004, 10:24 PM   #6
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"He agrees this has not been proven in courts nor written in stone, but is generally accepted as the standard. He says it is an oft asked question."

That right there is the problem. I could be mistaken, but I believe Harry Fox has absolutely nothing to do with commercial recordings. That's the whole reason they can't give you sync rights. It's up to the individual music label, or RIAA, and with those guys suing customers left and right I certainly wouldn't trust them with something like this.

The "final answer" is don't use copyrighted music recordings in your business without permission or without consulting with an attorney to determine if fair use applies.

That's what your FAQ ought to say.
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Old August 23rd, 2004, 10:37 PM   #7
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<<<-- Originally posted by Peter Moore :

The "final answer" is don't use copyrighted music recordings in your business without permission or without consulting with an attorney to determine if fair use applies.

That's what your FAQ ought to say. -->>>

Do you know how much bandwidth that would save the forum if people read that before posting new threads? Chris Hurd would probably have enough left over for that DVinfo Viper.

:)
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Old August 25th, 2004, 01:31 PM   #8
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<<<-- Originally posted by Dylan Couper : Good point. I'll make the change shortly, just got a pile of other stuff to get out of the way. If I haven't got it done by Friday, I could use a friendly reminder. :) -->>>

Well, hang on one second. The Harry Fox Agency policy is just that -- a policy. It is _not_ the law (though the descriptions re: sync licenses are). The Fox Agency policies apply only to clients that they represent.

Also, as I've said a number of times, my personal feeling is that this kind of use probably would come within fair use doctrine. However, no court has ever decided this issue and, as such, the easiest response is that unauthorized copying, of any kind, constitutes illegal copyright infringement.
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Old August 25th, 2004, 02:47 PM   #9
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I think the "final word" is not to get your legal advice off the internet. Consult an attorney. The views expressed here are just opinions and should not be taken as a "final word" or a legal advice.
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Old August 25th, 2004, 03:12 PM   #10
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Though I don't provide legal advice to non-clients, I am an attorney -- an intellectual property litigator.
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Old August 25th, 2004, 04:35 PM   #11
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Well, I had hoped that the posting from the Harry Fox Agency would help us all, and those who would ask this question in the future. It's a question that gets asked again and again, and the threads tend to be long and winding with a lot of debate.

Without doubt, the best approach is to consult your attorney on any legal issue, this one included. As I stated in my original post here, "this is NOT a legal opinion."

Having said all that, the question is, is there anything we can do to address this issue in a succinct manner that will be of help to future videographers?

There will always be the extreme views, on both sides of the issue:
1. The only answer is to consult your attorney
2. The Harry Fox Agency has answered the question

Can we craft a reasonable FAQ on this issue?

Perhaps something like this:

===============================================
First, you are advised to consult your attorney on this and all legal matters.

Be aware however, that it has been reported unofficially that the Harry Fox Agency has stated that for ten or fewer copies of the same video, NO license is required IF the clients (bride and groom) provide the song from their own purchased copy of the song. If you provide the song from your own pool of music, you need a sync. license.

Neither the Harry Fox Agency statement nor this FAQ is a legal opinion. If you use any information in this FAQ, you do so at your own risk.

This question has been asked many, many times on this forum. This FAQ is the studied result of these posts. Please don't waste our valuable resources (people and bandwidth) by asking again.
===================================================

So, fire away! Your comments please.
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Old August 25th, 2004, 05:20 PM   #12
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Jim,

I'm with the attorneys on this one. NO USE is the only "safe answer". Harry Fox Agency does not represent all musicians, and the statement as written emplies they do.

DISCLAIMER: I am married to a copyright/trademark attorney, and hear enough about both sides of the issue to steer clear of it.
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Old August 25th, 2004, 05:36 PM   #13
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NO SAFE ANSWER

Richard,

Interesting, I almost used the term "safe" in my last post.

Then I realized there is NO SAFE legal approach. Anyone can sue you for anything anytime, with or without cause. Even if it is frivolous claim, you still have to spend a lot of money defending yourself.

As I stated, there will always be the extreme positions on this, and probably any, legal issue.

I'm just trying to think of something that will be of practical use. If you just say "Consult your attorney", you're still going to get a lot of posts on this issue either disagreeing, or complaining.

I would think one could take the Harry Fox statement to one's attorney, and say, check this out please. At least this is a starting point.
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Old August 25th, 2004, 05:48 PM   #14
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Quote:
<<<-- Originally posted by Jim Underwood : Well, I had hoped that the posting from the Harry Fox Agency would help us all, and those who would ask this question in the future. It's a question that gets asked again and again, and the threads tend to be long and winding with a lot of debate.

Without doubt, the best approach is to consult your attorney on any legal issue, this one included. As I stated in my original post here, "this is NOT a legal opinion."

Having said all that, the question is, is there anything we can do to address this issue in a succinct manner that will be of help to future videographers?

There will always be the extreme views, on both sides of the issue:
1. The only answer is to consult your attorney
2. The Harry Fox Agency has answered the question

Can we craft a reasonable FAQ on this issue?

Perhaps something like this:

===============================================
First, you are advised to consult your attorney on this and all legal matters.

Be aware however, that it has been reported unofficially that the Harry Fox Agency has stated that for ten or fewer copies of the same video, NO license is required IF the clients (bride and groom) provide the song from their own purchased copy of the song. If you provide the song from your own pool of music, you need a sync. license.

Neither the Harry Fox Agency statement nor this FAQ is a legal opinion. If you use any information in this FAQ, you do so at your own risk.

This question has been asked many, many times on this forum. This FAQ is the studied result of these posts. Please don't waste our valuable resources (people and bandwidth) by asking again.
===================================================

So, fire away! Your comments please. -->>>
Jim, the Harry Fox Agency policy applies to only their clients. They did not say it is the law, nor is it the law. The problem is, even though HFA may permit this, anyone wishing to use a CD will have to determine whether HFA represents the copyright owner or not.

And, though I do not give legal opinions to non-clients, I will make an exception this time:

United States statutory copyright law does not contain an express "wedding videographers exception" which permits syncing a CD to video provided fewer than 10 copies are distributed. No court has provided a judicial gloss on fair use that has resulted in a bright line rule such as stated above.

Paul N. Tauger, Esq.
[see my bio at www.schnader.com]

This isn't a question of differing opinions on copyright law, but on a misunderstanding of just what it was that HFA said. I haven't seen their statement, but the reproduction of it here makes it appear that HFA will allow this kind use, but is not providing (and cannot provide) a legal opinion as to whether the law permits this kind of use. Note, too, that only licensed attorneys may provide legal opinions as a matter of law.
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Old August 25th, 2004, 06:12 PM   #15
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You can probably consult 3 lawyers and get 3 different answers. Let's ask this, anyone every hear of a wedding videographer or couple going to court over their wedding video songs in a private video? Perhaps that is why there is no 'court decision' If no one get sued, no precedent to set over the legal interpretations of Fair use.

I think as much protection as possible, including only bride and groom owned CD's, limited distribution home use only video's will help keep most of us out of court. There is risk even if you do consult an attorney. You will never know the answer, until you blow your family fortune defending your video's in court, and hear what the judge decides. The safest choice is always to use licensed or royalty free music, or you ride the risk that maybe just maybe no one will ever care enough to sue you over what music you use in your video's. The risk is yours to take.
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