Music Legality for Slideshow Video at DVinfo.net

Evan Edstrom · January 27th, 2011, 05:39 PM

I know similar questions have been asked, but I haven't found quite what I am looking for. Hopefully you can help me.

Among other things, I produce slideshow videos with customer's photos and put them to music. It makes a great and entertaining video that people seem to love. My question is about the music for those. At the moment, I offer some royalty free music tracks as options to use in videos. I tend to like to do things the legal way. I have, however had several customers who are insistent on using their favorite song from itunes or a cd or something like that. I have unfortunately had to turn down due to the rights issue.

I understand how it isn't a huge issue for a small video like these. Maybe only one or two copies ever made, and it really doesn't get seen outside of the family. I know it probably isn't terribly likely I am going to get sued, but I still worry. I was explaining this to a potential customer and they offered to "take the blame" if you will, as they didn't seem too worried about it. That got me thinking. I quickly found some other companies from across the country that do the same kind of videos, and this seems to be the common theme I am getting from their terms of service. The following is taken off of one companies website:

Quote:

4. The CUSTOMER shall be solely responsible for their own slideshow video(s) and the consequences of sharing the created video(s) with others and/or posting or publishing them online. When submitting media materials for usage in a slideshow video, the customer affirms, represents and/or warrants that: (i) CUSTOMER owns, or has the necessary licenses, rights, consents, and permissions to use and authorize us to make a slideshow video; (ii) CUSTOMER has the written consent, release, and/or permission of each and every identifiable individual person in the submitted files to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the submitted files in the manner contemplated by the Website and these Terms of Service. When ordering a slideshow video, CUSTOMER agrees that CUSTOMER will not submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless CUSTOMER is the owner of such rights or have permission from their rightful owner to use the material. CUSTOMER will hold us harmless from any costs, fees, or expenses resulting from copyright infringement related to the CUSTOMER'S order.

I am wondering if this has any legal backing. Would this hold up in court? I would think the part about photos would. Now that I think about it, I never secure actor releases for every person in every photo. Supposedly some family could hire me to make a video, and sue me for using their photos without a signed release. If this clause in a terms of service could prevent that, how is music any different. Can I leave it up to the customer to secure rights to whatever song they want to do, and not worry about it?

Hopefully I asked that without rambling too much, and hopefully you can understand what I am getting at.
Thanks!

Pete Bauer · January 27th, 2011, 06:50 PM

Well, my NON-lawyerly but my inherently conservative spidey-sense says this is not fundamentally different from synching copyright music to video. You'd need to obtain those rights in addition to all the rest. I'd think that as the creator of the work and owner of the copyright of your work, you're at risk. LIkely, even if you managed somehow to construe this as "work for hire" you'd still be named in any suit the copyright.

But as is always said in these kind of threads, what you need is a competent IP attorney's assistance, not my off-the-cuff opinion.

Greg Fiske · January 27th, 2011, 07:40 PM

Regarding the pictures, from what I've read, if people are in public places you can use them. As an alternative to the license issue, how about turning to animoto in those cases people require licensed music, and then use stuff from their library? And with the laws being more lax in Europe, how does it work if you buy a license from say England, do you need to create the product in that country to be protected? From the post I've read, you can license music for 10$ in other countries. How does youtube get away with it?

Nigel Barker · January 28th, 2011, 05:52 AM

I am sure that the customer agreeing to take the rap for your copyright infringement would never stand up in court.

You could off-shore your slideshow production to the UK as we have a simple & cheap licensing scheme available for just such projects. The caveat is that the DVD (it has to be a physical product so no web distribution) is licensed for manufacture in the UK & distribution in the European Union. Limited Manufacture Licence (LM)

Evan Edstrom · January 28th, 2011, 06:55 PM

Okay, but how does a company like the one I mentioned get away with it then? Why do they bother to include a part of their contract like the one I quoted above in the first place? It has to have some purpose.

Steve House · January 29th, 2011, 06:51 AM

You are the person actually making the copy of the music, synchonizing it to the images and incorporating it into a new copyrightable work, thus you are responsible for the infringement. Your customer cannot assume that liability for you. What you can have them do is sign a contract that says they will indemnify you against loss so that when you are sued by the copyright owner (if they discover your infringment) and when you lose (which you will) your customer will reimburse you for your out-of-pocket losses and legal expenses. Lots of luck actually collecting on that! And when you sue them after they refuse to pay (and they will refuse), you'll find your case will be tossed out of court on the doctrine of "clean hands." Just like you can't sue someone to return your money if you give them cash to buy you some weed and they fail to deliver - you have made a deal to commit an illegal act at the request of your client and the courts won't enforce you receiving your benefits from that deal. For the court to enforce a contract you have to come before them with clean hands, having done no wrong, violated no law, anywhere in the transaction.

As for worrying whether or not you'll get sued if you use the music requiested, the fact that it isn't likely to be discovered is irrelevant. An act is not made right or wrong based on the chances of getting caught. It's just plain unethical for you to take someone else's property and use it without permission ... period, end of story. The fact you can probably get away with it is no excuse. What you are describing is fundamentally no different from someone coming to you with a CD they like and asking you to copy it so they can give copies to their family without having to buy more CDs at the full retail price. And if you're wondering, the argument that you are only providing the service to make the copy and are not responsible for what is being copied or whether it's legal to copy it was tested in the Kinko case a number of years ago ... Kinkos lost.

As for the photos, that's not to worry. The person in the photos is the person requesting you put together the show, permission would be implicit. What they do with it after you deliver it is their business. But if you yourself post one of the shows in public, say as advertising for your business, without securing releases from everyone in the pictures, you'll open the door to a lawsuit since you're using the images for a purpose other than that which the client originally intended when he gave that permission - you have exceeded the boundaries of the original agreement,.

David Barnett · January 30th, 2011, 03:30 PM

Quote:

Originally Posted by Evan Edstrom

Okay, but how does a company like the one I mentioned get away with it then? Why do they bother to include a part of their contract like the one I quoted above in the first place? It has to have some purpose.

The same way people download movies, songs & software off Napster, Limewire, & Pirate Bay all these years. Law of averages. Like you said, it's unlikely the label for Lady Gaga or Stone Temple Pilots is going to come across Jenny's Sweet 16 Birthday montage.. so they make dozens of them a year or whatever and feel safe having the customers sign the form to make themselves feel better at night. Howeer, now with Youtube imho I'd be more worried as it seems they have detection software. It's possible in the near future a customer of theirs might put the video on youtube and a major Label look to make an example of people to eliminate pirating and file suit. The fact the producers of the video MADE the customer sign a waiver only proves their negligance and would probably backfire in a courtroom, since it is simply in writing proving they knew what they were doing was wrong. IMHO at least.

Someone asked how Youtube gets away with it. I'm sure the money making discussions have been in place all along, and now I believe there is usually a link to buy the song at iTunes.

It's really the same old discussion, many people insert songs onto wedding videos etc unlicensed. Probably almost all have gotten away with it (out of curiousity had there been any cases of prosecution or suit over usage in a wedding video?). A waiver imho will serve no benefit in a courtroom, as the prosecution is looking to prove you were negligent in you actions & knew what you were doing was wrong. Written documentation would likely benefit them, not your defense. As always, not a lawyer.

Jeff Emery · February 2nd, 2011, 09:54 PM

Copyright violation is copyright violation, whether for money or for free, whether 1 copy or 1000.

You already know that. Claiming someone "told" you to do it isn't going to cut it. Having them sign a paper saying they told you to do it isn't going to cut it either.

Now if you're small time and you produce a video for a "family" event, like a wedding, reunion, birthday party, or funeral, you will likely never be caught. For a small time, private-showing type slideshow, you can treat it sort of like speeding. Sure, it's illegal. But it happens all the time. Someone, somewhere may get caught and maybe even have to pay a hefty fine. You run the risk, by your action, of being that someone. But if you keep a low profile and don't draw attention to your willful violation, you will likely get away scott-free.

You're on the right track to use royalty free tracks where you can. But sometimes, the customer wants what the customer wants. Give 'em what they want. Just don't put your name on it anywhere and don't use it for advertising.

J

Chris Davis · February 3rd, 2011, 09:30 AM

Quote:

Originally Posted by David Barnett

out of curiousity had there been any cases of prosecution or suit over usage in a wedding video

Yeah, right here on this forum. A couple years ago some wedding videographer was contacted by an artist who found his music on a wedding video. It was kind of nerve-wracking for the videographer for a few days as lawyers were involved. Fortunately, the artist determined that a donation to charity was enough to forgive the offense.

Ah, here's the thread: http://www.dvinfo.net/forum/wedding-...stupid-me.html

Greg Fiske · February 3rd, 2011, 10:26 AM

Maybe use the workaround that dj's use, mix 30 second clips throughout the video.

Chris Luker · February 3rd, 2011, 05:34 PM

Nope, still copyright infringement no matter how long the sample.

Steve House · February 3rd, 2011, 05:45 PM

Quote:

Originally Posted by Jeff Emery

...
You're on the right track to use royalty free tracks where you can. But sometimes, the customer wants what the customer wants. Give 'em what they want. Just don't put your name on it anywhere and don't use it for advertising.

J

No customer is so important as to violate fundamental ethics and commit theft in order to make them happy. That's a customer no one needs, send them packing.

Chris Davis · February 3rd, 2011, 06:11 PM

Quote:

Originally Posted by Greg Fiske

Maybe use the workaround that dj's use, mix 30 second clips throughout the video.

Urban legend.

David Barnett · February 3rd, 2011, 06:14 PM

Thanks Chris, I actually do recall that thread. Seemed a strange coincidence too, as I believe the artist was somewhat less known. I was wondering if more a firm was shipping out videos with Leanne Rhymes & Black Eyed Peas or something, and got busted.

Quote:

Originally Posted by Greg Fiske

Maybe use the workaround that dj's use, mix 30 second clips throughout the video.

That's nowhere near legal nor helpful. Honestly, if you're going to use 30 seconds you might as well use the whole song. There's little to no difference in penalty I'm sure. To go with the speeding analogy that'd be like speeding only 1 out of every 5 minutes.

Chris Davis · February 3rd, 2011, 07:24 PM

Quote:

Originally Posted by David Barnett

Thanks Chris, I actually do recall that thread. Seemed a strange coincidence too, as I believe the artist was somewhat less known. I was wondering if more a firm was shipping out videos with Leanne Rhymes & Black Eyed Peas or something, and got busted.

That's where this becomes nothing more than an academic discussion. Big-time labels have no interest in small-fry wedding videographers. I've even read anecdotal stories of guys calling up the licensing department of big labels and inquiring about licensing and were told "just go ahead, we don't care." I'm sure in those cases, they were getting the unofficial comment of an individual that didn't want to deal with it, and not the company policy of Big Media.

YouTube is a good example of how major publishers deal with copyright infringement. They basically have three choices, pull the audio off, leave the audio and add a link, or ignore it. Most choose one of the latter two, virtually condoning infringement.

However, because they choose to turn a blind eye does not mean I'll do something I know is wrong.

January 27th, 2011, 06:50 PM	#2
Pete Bauer Wrangler Join Date: May 2003 Location: Eagle River, AK Posts: 4,100	Well, my NON-lawyerly but my inherently conservative spidey-sense says this is not fundamentally different from synching copyright music to video. You'd need to obtain those rights in addition to all the rest. I'd think that as the creator of the work and owner of the copyright of your work, you're at risk. LIkely, even if you managed somehow to construe this as "work for hire" you'd still be named in any suit the copyright. But as is always said in these kind of threads, what you need is a competent IP attorney's assistance, not my off-the-cuff opinion. __________________ Pete Bauer The most beautiful thing we can experience is the mysterious. It is the source of all true art and science. Albert Einstein Trying to solve a DV mystery? You may find the answer behind the SEARCH function ... or be able to join a discussion already in progress!

January 29th, 2011, 06:51 AM	#6
Steve House Inner Circle Join Date: Mar 2005 Location: Hamilton, Ontario, Canada Posts: 5,742	You are the person actually making the copy of the music, synchonizing it to the images and incorporating it into a new copyrightable work, thus you are responsible for the infringement. Your customer cannot assume that liability for you. What you can have them do is sign a contract that says they will indemnify you against loss so that when you are sued by the copyright owner (if they discover your infringment) and when you lose (which you will) your customer will reimburse you for your out-of-pocket losses and legal expenses. Lots of luck actually collecting on that! And when you sue them after they refuse to pay (and they will refuse), you'll find your case will be tossed out of court on the doctrine of "clean hands." Just like you can't sue someone to return your money if you give them cash to buy you some weed and they fail to deliver - you have made a deal to commit an illegal act at the request of your client and the courts won't enforce you receiving your benefits from that deal. For the court to enforce a contract you have to come before them with clean hands, having done no wrong, violated no law, anywhere in the transaction. As for worrying whether or not you'll get sued if you use the music requiested, the fact that it isn't likely to be discovered is irrelevant. An act is not made right or wrong based on the chances of getting caught. It's just plain unethical for you to take someone else's property and use it without permission ... period, end of story. The fact you can probably get away with it is no excuse. What you are describing is fundamentally no different from someone coming to you with a CD they like and asking you to copy it so they can give copies to their family without having to buy more CDs at the full retail price. And if you're wondering, the argument that you are only providing the service to make the copy and are not responsible for what is being copied or whether it's legal to copy it was tested in the Kinko case a number of years ago ... Kinkos lost. As for the photos, that's not to worry. The person in the photos is the person requesting you put together the show, permission would be implicit. What they do with it after you deliver it is their business. But if you yourself post one of the shows in public, say as advertising for your business, without securing releases from everyone in the pictures, you'll open the door to a lawsuit since you're using the images for a purpose other than that which the client originally intended when he gave that permission - you have exceeded the boundaries of the original agreement,. __________________ Good news, Cousins! This week's chocolate ration is 15 grams!

January 27th, 2011, 07:40 PM	#3
Greg Fiske Major Player Join Date: Nov 2010 Location: Santa Ana, CA Posts: 499	Regarding the pictures, from what I've read, if people are in public places you can use them. As an alternative to the license issue, how about turning to animoto in those cases people require licensed music, and then use stuff from their library? And with the laws being more lax in Europe, how does it work if you buy a license from say England, do you need to create the product in that country to be protected? From the post I've read, you can license music for 10$ in other countries. How does youtube get away with it?

January 28th, 2011, 05:52 AM	#4
Nigel Barker Inner Circle Join Date: Feb 2009 Location: Norwich, Norfolk, UK Posts: 3,531	I am sure that the customer agreeing to take the rap for your copyright infringement would never stand up in court. You could off-shore your slideshow production to the UK as we have a simple & cheap licensing scheme available for just such projects. The caveat is that the DVD (it has to be a physical product so no web distribution) is licensed for manufacture in the UK & distribution in the European Union. Limited Manufacture Licence (LM)

January 28th, 2011, 06:55 PM	#5
Evan Edstrom Tourist Join Date: Jan 2011 Location: Spokane, WA Posts: 2	Okay, but how does a company like the one I mentioned get away with it then? Why do they bother to include a part of their contract like the one I quoted above in the first place? It has to have some purpose.

February 2nd, 2011, 09:54 PM	#8
Jeff Emery Major Player Join Date: Oct 2005 Location: Ohio USA Posts: 222	Copyright violation is copyright violation, whether for money or for free, whether 1 copy or 1000. You already know that. Claiming someone "told" you to do it isn't going to cut it. Having them sign a paper saying they told you to do it isn't going to cut it either. Now if you're small time and you produce a video for a "family" event, like a wedding, reunion, birthday party, or funeral, you will likely never be caught. For a small time, private-showing type slideshow, you can treat it sort of like speeding. Sure, it's illegal. But it happens all the time. Someone, somewhere may get caught and maybe even have to pay a hefty fine. You run the risk, by your action, of being that someone. But if you keep a low profile and don't draw attention to your willful violation, you will likely get away scott-free. You're on the right track to use royalty free tracks where you can. But sometimes, the customer wants what the customer wants. Give 'em what they want. Just don't put your name on it anywhere and don't use it for advertising. J

February 3rd, 2011, 10:26 AM	#10
Greg Fiske Major Player Join Date: Nov 2010 Location: Santa Ana, CA Posts: 499	Maybe use the workaround that dj's use, mix 30 second clips throughout the video.

February 3rd, 2011, 05:34 PM	#11
Chris Luker Major Player Join Date: Oct 2005 Location: Woods Cross, Utah Posts: 310	Nope, still copyright infringement no matter how long the sample.