Can this doc "bypass" music copyright issue for editors?? (help frm Mr. Tauger?) at DVinfo.net

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Old July 14th, 2011, 07:12 PM   #1
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Can this doc "bypass" music copyright issue for editors?? (help frm Mr. Tauger?)

Hello everyone (and Mr Paul Tauger if you're reading this). I have read through forums where I've found some helpful answers to copyright DV questions (especially answers by Mr Tauger who seems quite generous with his time), though I have not yet come accross an answer regarding this in particular, so here goes...

It seems most editors avoid the whole issue of copyrighted music altogether by just purchasing their own generic catalogs.
I would like to know if an agreement form (scroll dwn) like this, included with the order sheet I'd have clients fill out, would be a good enough safety net for someone like myself to use so that I can legally provide the option for people to use their OWN music (at no extra charge), which they themselves bought, as an alternative to using a track from my very limited generic free-use collection. Any suggestions would be greatly appreciated!

So basically, I would not carry a catalog of copyrighted music. I am trying to position myself as merely the middle-man giving them the option to personalize it in this way with THEIR own music they purchased which they would have to physically hand to me (if that makes a difference). This would be at no extra charge. I'd only charge for the editing work itself, length, # of photos, etc, not the audio track used (incl in price).

Also in addition to what's currently written in this agreement (if it makes a difference):
I would maybe require proof of their purchase of that track/CD.
I would emphasize no ownership attachment to the final product other than maybe "Edited by [my own name or business name]"


THE AGREEMENT:
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
An edited Photo/Video Montage is a work done by artisans. The editor's results are a combination of talent, technology and creativity. [Co name] retains the rights of creativity and style in producing any montage, excluding any and all copyrighted material. [Co name] does NOT guarantee the use or exclusion of any specific visual effect or production technique. It is agreed that rights to exclusive use of all NON-copyrighted video tape footage, audio tracks, music tracks and reproductions there from are reserved by and for [Co name] whether for production, promotional use or otherwise. We encourage you to choose your own music. It is a violation of copyright law for us to provide music that we do not own the rights to. Therefore if you wish to use any copyrighted music you will need to provide us with the original CD or a burned CD copy of the music. Make sure that each CD you submit is in its case. Any music we provide will be instrumental music we possess the rights to. Contracting Party (CP) assumes all responsibility and liability for the legal use of all material, copyrighted or otherwise, to be incorporated in the video; and hereby grants permission for [Co name] to use all materials provided by the client in the production of the Photo/Video Montage ordered herein. CP hereby declares that the purpose of this video is non-commercial and for In Home Use only. Any expectations CP has concerning content, quality, editing, or any other aspect of your montage video must be delineated in writing, attached to this form, and given in advance of production for our review. Your requests will be given all consideration but NO requests are guaranteed to be fulfilled due to the nature of the production process.

We understand and accept, as stated, the conditions and limitations described herein.


Full Name______________________________________

Contracting Party (signed) ___________________________________________ Date ______________

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

This way, I'm only profiting off of the video editing services and not the music.


Is there ANYTHING at all I can do to make this work, either as a SP or LLC/LLLC?

Sorry I know this is alot of questions. Hope someone can help me out with this. Thanks in advance for any help anyone can offer :)

Background:
I am setting up a small, discounted memorial montage video editing service for people on a budget who've lost their beloved pets and also for animal-related non profit organizations (I assume I cannot use copyrighted music for those projects period as that would be "commercial use"?).

I will be sub-contracting out work with video editing STUDENTS for these relatively simple projects to keep prices down and provide a positive work reference for students trying to get a foothold in the workplace. I'm also seeking to partner up with other SMALL, local production companies for additional "premium" service offerings. Starting out as an SP for now, then incorporating into I guess an LLC or LLLC later on.


GA
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Old July 14th, 2011, 07:41 PM   #2
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Re: Can this doc "bypass" music copyright issue for editors?? (help frm Mr. Tauger?)

That is a good thought but won't work. As the producer of the work you are responsible for getting the proper licenses to use the music. You can't push that off onto anyone else.

One way to pass the buck might be to do the editing but deliver the cut piece to the client sans music and have the client insert the music themselves. That could move the issue off your plate and on to theirs. This assumes the client as the technical ability and equipment to insert the music.

Others may have better answers but my understanding is that you can't do that.
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Old July 14th, 2011, 08:29 PM   #3
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Re: Can this doc "bypass" music copyright issue for editors?? (help frm Mr. Tauger?)

It's always amazing how everyone thinks their copyright issue is unique.

Copyright is simple; "If it's not yours and you (or your client) don't have permission to use it then you can't use it."

Buy library music - middle man or not, theft is theft. You're still liable when the lawsuit arrives.
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Last edited by Rick L. Allen; July 15th, 2011 at 02:18 PM.
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Old July 15th, 2011, 05:46 AM   #4
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Re: Can this doc "bypass" music copyright issue for editors?? (help frm Mr. Tauger?)

Echoing the others ... when you produce a video program YOU are the creator of a copyrightable work, NOT your client. The client is a customer to whom you are subsequently selling that work. But the work is your creation. If it incorporates within it other copyrighted materials YOU are the one copying those materials and as the producer it is your obligation to insure all proper licenses have been obtained. Having your client sign an agreement to obtain them on your behalf does not absolve you of that obligation. The very best such an agreement might do for you is, after the music owner sues YOU for copyright infringment and wins (and he WILL win), you can turn around and sue the client in hopes you can recover your losses. You might or might not be successful in such a suit - the court might hold the agreement applies but it could also hold that since you are the original wrong-doer in the infringment, you can't pass off your punishment to a third party even if they have agreed to step up to the plate for you and so the agreement is void. It is kind of like getting an agreement from your friend that says you're going to rob a bank and you'll give them half them money if they agree to go to jail on your behalf if you're caught.

The fact the client (or you) purchases a CD of music DOES NOT convey any rights beyond listening to the CD. You may not copy it, you may not broadcast it, you may not play it as music in your bar or office or other public place, you may not act as a DJ and play it at a wedding reception, you may not incorporate it into a video or film, nada. All your purchase licenses is the right to play the CD and listen to the music for your own personal enjoyment (unless you obtain additional licenses and pay the rquired royalties etc). So the fact you have made sure the client owns the CD of the music they want you to use means nothing. Whether it's you or the client who actually buys the disk, any use in the video you're producing requires a valid license ... actually several licenses - a sync license from the music's composers and publisher and a master use license from the record label that published the CD ... and it's your duty to obtain them.

addendum
----------------------
"Commercial Use" doesn't matter .. inclusion of copyrighted music without license is infringment regardles of the disposition of the resulting video, whether it's sold or given away doesn't makes any difference.
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Last edited by Steve House; July 15th, 2011 at 09:43 AM.
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Old July 15th, 2011, 07:03 AM   #5
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Re: Can this doc "bypass" music copyright issue for editors?? (help frm Mr. Tauger?)

Agreed. Long story short, no that contract absolutely would not work. If anything, you're just documenting the fact that you know what you're doing is negligent, and if it came to trial would probably be worse than someone who shows up & pleads "Oops, sorry I didn't know". So there really seems no reason to use it. It won't protect you, and it'll just annoy or scare off potential customers anyway, and one more thing for you to ask they sign. On the other hand, use it if you want I suppose, but I don't think it serves any purpose.

Last edited by David Barnett; July 15th, 2011 at 07:45 AM.
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Old July 15th, 2011, 07:56 AM   #6
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Re: Can this doc "bypass" music copyright issue for editors?? (help frm Mr. Tauger?)

I just stick to Royalty Free buyout music like SmartSounds, Digital Juice, Music Bakery etc. It's a lot simpler. If you look around online long enough, you can find legitimate sources of music that will work with most any type of project. As for top 40 hits, forget about it.

Also, don't go shoving a lot of documents at a potential client, unless you want to run them off. Keep your paperwork to a minimum, just the essentials.
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Old July 15th, 2011, 01:52 PM   #7
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Re: Can this doc "bypass" music copyright issue for editors?? (help frm Mr. Tauger?)

I'll guess OP has read some of the long discussions on this (I'm recalling one in particular ages ago with "Mr. Tauger") and is trying to figure out a way to sneak through the one "possible" loophole that Paul said he'd defend, the Carterphone case Chris posted about suggests, and I contend is viable as an "affirmative defense" in a VERY limited set of circumstances... with the attendant risks.

First, it's not a great idea to "document" this in a contract, nor would it prevent you potentially being part of an expensive defense if the poo hit the rotary oscillator. Of course now you've posted it a public forum, so "ignorance is no excuse", and the cat's out of the bag. Now you try to work the possible loophole at your own risk...

Second, most clients are not going to understand the "agreement", even though (presuming they don't publicly post the end product 15 minutes after you provide it... DOH...) they may de facto abide by it, since most people are going to be using your contemplated product for "private personal use", nothing more, and ideally might like to listen to it simultaneously with some meaningful to them "soundtrack" of music they already have purchased for thier listening pleasure. (Chris touches on this, and it's analogous to the "Carterphone".)

Third, you need to read a recent thread about the potential emotional effects of attaching a specific piece of "audio" to a "visual" playback and contemplate it carefully, particularly in the arena you are thinking of producing...

The problem with trying to "get around" the copyright is that you're still using someone else's end product, and they may or may not find your "use" innocuous or inoffensive... or "non-commercial" if you start making a "big" profit. You haven't "discovered" a way around anything, although you apparently have absorbed the gist of the conversations here, remember there's a strong disagreement as to the conclusions, creating "precedent" (as in case law) is VERY expensive, and you move forward at your on risk...
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Old July 15th, 2011, 04:22 PM   #8
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Re: Can this doc "bypass" music copyright issue for editors?? (help frm Mr. Tauger?)

Quote:
Originally Posted by Roger Van Duyn View Post
I just stick to Royalty Free buyout music like SmartSounds, Digital Juice, Music Bakery etc. It's a lot simpler. If you look around online long enough, you can find legitimate sources of music that will work with most any type of project. As for top 40 hits, forget about it.

Also, don't go shoving a lot of documents at a potential client, unless you want to run them off. Keep your paperwork to a minimum, just the essentials.
thanks for the tips :)
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Old July 15th, 2011, 04:38 PM   #9
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Re: Can this doc "bypass" music copyright issue for editors?? (help frm Mr. Tauger?)

I failed to mention in my post that there is a company that's been around for several years and is using this agreement as we speak. That's where I copied it from. That's the only reason I was thinking to myself "hmm, well if THIS guy is doing it, maybe he knows something the other folks don't!". But apparently he/she knows much less :(

In response to a couple replies, I wasn't intent on doing anything illegal, so the fact that I posted this wouldn't have made a difference either way if it (hypothetically) were a legit, legal agreement.

Anyway, I had a feeling this would be the answer. It was worth a shot right? right? Well, worth it to me, since I have virtually nothing to work with in terms of music for getting started in my work.

Oh well, guess I'll continue my endless search looking for free/cheap, nice, non-cheesy, royalty-free music for my projects :-/
*cue sad royalty-free violin music*

GA
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Old July 15th, 2011, 05:22 PM   #10
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Re: Can this doc "bypass" music copyright issue for editors?? (help frm Mr. Tauger?)

Quote:
Originally Posted by Gregory Alexander View Post
I failed to mention in my post that there is a company that's been around for several years and is using this agreement as we speak. That's where I copied it from. That's the only reason I was thinking to myself "hmm, well if THIS guy is doing it, maybe he knows something the other folks don't!". But apparently he/she knows much less :(

In response to a couple replies, I wasn't intent on doing anything illegal, so the fact that I posted this wouldn't have made a difference either way if it (hypothetically) were a legit, legal agreement.

Anyway, I had a feeling this would be the answer. It was worth a shot right? right? Well, worth it to me, since I have virtually nothing to work with in terms of music for getting started in my work.

Oh well, guess I'll continue my endless search looking for free/cheap, nice, non-cheesy, royalty-free music for my projects :-/
*cue sad royalty-free violin music*

GA
The SmartSounds library is pretty much non-cheesy (unless you actually WANT cheesy) and IMHO is very reasonably priced. You can audition tracks online and only purchase licenses you need. Each track is about $20 if purchased as singles and once you buy it you can use it in as many projects as you like going forward - it's a 'buy-out' library, not a 'needle-drop' library. So you build ithe cost of licensing the new music tracks you use in each new project into your rate structure and let your clients pay for the tracks you purchase as you build your library. Once you have the license, you can use the same track in any and all future projects you may do for any of your clients without additional fees, the music is licensed to you, the producer, rather than to the individual project.

Another good source of buy-out music is Magnatunes. A variety of genres and definitely NOT cheesy. Want a medaeval lute track? They're your source.
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Old July 15th, 2011, 05:44 PM   #11
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Re: Can this doc "bypass" music copyright issue for editors?? (help frm Mr. Tauger?)

Thanks Steve! that really helps, since from what I've found there seems to often be some kind or another of little invisible strings attached to those music libraries (well, invisible to me anyway). I will definitely take a serious look at those! :)
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Old July 15th, 2011, 07:35 PM   #12
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Re: Can this doc "bypass" music copyright issue for editors?? (help frm Mr. Tauger?)

Stock20.com is similar. Has some good instrumentals imho. I gotta check out this smartsounds though too. I'm looking for some classic rock style songs for a project if anyone has some pointers. FWIW after you buy a couple songs in a library you can pretty much repeat them in other weddings, so it's a high start up costs that pays off over time. There's an all-piano songs there that's really good.


And I know what you mean about other people doing it, I second shot for a guy near me who I met with & was discussing his business & giving some pointers. He said the same exact policy (They must bring him the cd's) and spoke to me like it was a true law. Even would not begin editing until the bride brought him the cd's, sometimes delaying it for weeks. I wanted to laugh in his face & tell him it's completely illegal anyway so he might as well rip the songs off piratebay anyway but just let it go.
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Old July 15th, 2011, 10:38 PM   #13
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Re: Can this doc "bypass" music copyright issue for editors?? (help frm Mr. Tauger?)

I got an ad for VASST "trakpaks", not sure whether they are any good, but are currently half price, say you can build your own tracks with little or no talent (well, they put it more tactfully...). Just an FYI, I know their infinicam software has worked great for me, so I don't mind mentioning them!
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Old July 17th, 2011, 02:50 AM   #14
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Re: Can this doc "bypass" music copyright issue for editors?? (help frm Mr. Tauger?)

We use Smartsound whenever we want royalty-free music & not only is the music non-cheesey but it sounds like real musicians rather than a computer. It's more than just regular royalty-free music as you can customise the mix, length, bpm etc of the track to match it to your video. Royalty Free Music for Productions Now that you can purchase music by the track instead of a whole album at a time it's even better value.
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Old July 17th, 2011, 03:44 AM   #15
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Re: Can this doc "bypass" music copyright issue for editors?? (help frm Mr. Tauger?)

Although if you check the Smartsound license they mention it being considered royalty free in US & Canada, which does raise the question about the other territories.
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