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Taking Care of Business
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Old August 24th, 2005, 02:18 AM   #1
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What's right, and what's legal

I'm doing photo montages for funerals, weddings etc.
People request or supply certain music that is meaningful to them. The contract says it's for personal use only.
I could also order it from itunes.

1. What's legal in this situation?
2. What's right? I certainly would not want to steal from an artist and would be unable to afford some kind of high royalty.
3. If I use a particular photo montage on my website as a demo to show people, does it then become promotional and require payment of a fee?
4. I also could not afford a lawyer at this point but may be able to retain legal counsel down the road.

Thanks
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Old August 24th, 2005, 07:06 AM   #2
 
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Any copyrighted music you use without proper licensing is illegal--you've broken the copyright laws, whether or not you get caught, and it is stealing.

If you post any clips with that copyrighted music on your web site, you increase the chances of being caught and prosecuted for copyright infringement.

If you post a clip without copyrighted music, you don't owe anyone anything. It would be good, however, to get permission from the client to use their project, because they do own it. Ninety-nine times out of a hundred they'll say it's fine. Just get it in writing.

At this point, you don't need an attorney. Use copyrighted music without licensing and you'll run the risk of paying far more than attorney's fees!

If you are a moral person, and it sounds like you are, simply explain to your clients that using such music is illegal. They'll understand. There are hundreds, if not thousands, of hours of royalty free music out there to choose from.

Jay
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Old August 24th, 2005, 07:17 AM   #3
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Quote:
Originally Posted by Kell Smith
If I use a particular photo montage on my website as a demo to show people, does it then become promotional and require payment of a fee?
If you put it on your website then you are re-distributing copyrighted music to the entire world without a license. Such an infringement is basically begging for a punitive action against you. Consider doing a sample montage with a piece of royalty-free music that you can easily and legally obtain, and put that on the web instead.
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Old August 25th, 2005, 02:07 AM   #4
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Well if I buy it from itunes on their behalf, and it's for their private use, that isn't legal? What if they supply the music, and I basically provide an editing service? And I have a line in the contract that says, this is for private use? This is what I'm not clear on.
I certainly would not want to steal the song.
Royalty free music? That's very expensive and not very good, isn't it? Either that or old classical music or similar? Where would I start, looking for some.
What do most wedding videographers do in this case? Don't a lot of them do a montage to a song the couple chooses?
The family I just did a montage for did consent to it being used as a demo; however that could bring a lot of complications putting it on the website so I probably won't now.
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Old August 25th, 2005, 08:25 AM   #5
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Kell,

SEARCH is your friend. Every question you have asked, has been answered, debated and answered again.
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Old August 25th, 2005, 10:06 AM   #6
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Quote:
Originally Posted by Kell Smith
Well if I buy it from itunes on their behalf, and it's for their private use, that isn't legal? What if they supply the music, and I basically provide an editing service? And I have a line in the contract that says, this is for private use? This is what I'm not clear on.
I certainly would not want to steal the song.
Royalty free music? That's very expensive and not very good, isn't it? Either that or old classical music or similar? Where would I start, looking for some.
What do most wedding videographers do in this case? Don't a lot of them do a montage to a song the couple chooses?
The family I just did a montage for did consent to it being used as a demo; however that could bring a lot of complications putting it on the website so I probably won't now.
As I understand the law, ANY use of any music without formal clearance of the rights is illegal, period, end of story. They buy the CD and you as the editor put a song from it on the soundtrack of a video you're doing for them? You've broken the law. Buy a tune from iTunes and incorporate it? You've broken the law. Take a recording of a 500 year-old traditional song and incorporate it? You've broken the law. (The song may be in the public domain but the arrangement, the publication, the performance of the recording artists, and the recording itself are not!)

The only possible way I can think of you might be able to be the one doing the editing and use music without proper clearances without being held personally liable might be if you're a full time, permanent employee and you are doing so at the direction of your boss - then he or she would be the one on the hook.

The long and short of it is no matter how many copies are made (even just one copy), who it is for, where it is going to be used, or whether for commercial sale, gifts, or whatever, your options as a producer are:

You locate the legal owners of the various rights to ALL the music you use and you secure (and pay whatever they demand) all licenses required;

You compose the music yourself and either perform it yourself or hire someone to perform it for you;

You hire composers and performers to create and perform the music as your employees;

You hire performers to arrange and perform music from the public domain (but careful, Beethoven's 9th Symphony or Mendelson's Wedding March are public domain but the arrangement and sheet music a performer might use probably aren't unless you happen to find a 100 year-old or so copy in an antique store somewhere!);

You use buy-out libraries and purchase the licenses they require.

That's it - AFAIK there are no other legal options to use any music in any way shape or manner in any production that will ever be seen by anyone except yourself. There are no workarounds or exceptions other than the specific "fair-use" exemptions defined in the law.
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Old August 25th, 2005, 10:37 AM   #7
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This is one of the tougher questions to deal with, as I know full well that it is nearly impossible to explain to a client why they can't legally have the music of their choice on their video (whether it be wedding, event, sport, etc...)
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Old August 27th, 2005, 12:57 AM   #8
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It would be nearly impossible in the turnaround time for a funeral to be able to track down the correct contacts to get info re: legal rights.
I have seen other companies doing this, who say right on their literature that in order to comply with copyright restrictions, they need to order from itunes. So I assumed it was legal.
Doesn't using it for someone's personal use, such as a wedding or funeral if the song is meaningful to them, fall under fair use?
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Old August 27th, 2005, 01:41 AM   #9
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Hey everyone,

I admit up front that I know s____ about the law but how bout this? Couldn't you add a line somehwere that stipulates that the use of the music is for private use only and any duplication or distribution is prohibited?

Just wondering.....

Steph
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Old August 27th, 2005, 02:11 AM   #10
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Quote:
Originally Posted by Stephanie Wilson
Hey everyone,

I admit up front that I know s____ about the law but how bout this? Couldn't you add a line somehwere that stipulates that the use of the music is for private use only and any duplication or distribution is prohibited?
You could, but it wouldn't make any difference as you are the one creating the unauthorized copy (and derivative work), thereby incurring liability for copyright infringement.

Quote:
Just wondering.....

Steph
Wonder no more.
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Old August 27th, 2005, 07:22 AM   #11
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Quote:
Originally Posted by Stephanie Wilson
Hey everyone,

I admit up front that I know s____ about the law but how bout this? Couldn't you add a line somehwere that stipulates that the use of the music is for private use only and any duplication or distribution is prohibited?

Just wondering.....

Steph
Adding to Paul - you have already violated that same stipulation made by the owner of the original music that you're using when you copied it yourself over onto the program you're creating for your client. The "copying" that is prohibited under the copyright laws is not you or your client making further copies of the final program tape or DVD. It is the copy YOU make in taking the music from the source through which you obtained it - CD or download or whatever - or the capturing of the sound of the music yourself into a recording if you have someone perform it for you, and then incorporating it into another production of your own making. It doesn't matter if you copy a rendition of "Happy Birthday" off of a CD, have someone sing it for you so you can record it, or even shoot the kids gathered around the birthday cake singing it, if it is in the production you're creating, whether for yourself or for a client and regardless of the intended use of that production - you must license it and pay royalties. Period. There are no workarounds or exceptions or loopholes other than the specific fair-use exemptions spelled out in the copyright laws. If you are using it in any way shape or manner for any purpose whatsoever and you, your client, or an employee didn't personally create it and perform it, to be legal you must license it.

For every question that begins "Couldn't I use it if I ..." unless what follows is "... license the rights from the copyright owner?" the answer is always going to be a resounding "No!" It doesn't matter if it's shown in public or privately, offered for sale or given as a gift, 1 copy or a million, commercial or non-commerical, for the private use of the client or for public showing, done for a client or used in a personal demo reel, the client owns a copy of the CD already or you do or you purchase one and give it to them along with your program, the answer is always "No!"

I agree that it should be more flexible. Unfortunately it's not and the law is a mandatory compliance, zero option game - not just a suggestion.
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Old August 27th, 2005, 11:47 AM   #12
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I wonder if I could compile a list of songs, then contact the companies that own the songs and try to get permission. I wonder what they would charge to authorize the use of them.
Also I'll need to research fair use and see specifically what it says.
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Old August 27th, 2005, 11:51 AM   #13
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Quote:
Originally Posted by Kell Smith
I wonder if I could compile a list of songs, then contact the companies that own the songs and try to get permission. I wonder what they would charge to authorize the use of them.
Also I'll need to research fair use and see specifically what it says.
Kell, this has been discussed at great length here. Spending a little time with the search function will save you a lot of unnecessary work.
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Old August 27th, 2005, 12:44 PM   #14
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Quote:
Originally Posted by Kell Smith
I wonder if I could compile a list of songs, then contact the companies that own the songs and try to get permission. I wonder what they would charge to authorize the use of them.
Also I'll need to research fair use and see specifically what it says.
It's called a cue sheet, is standard operating practice and contacting the copyright owners (or having your attorney do it) is exactly how you go about it. Price varies all over the place - I've heard "Happy Birthday" is something like $25 a pop. The "Theme to Titanic", or "Music of the Night" from Phantom of the Opera is going to cost you big bucks and there's nothing that says they have to license it to you at all if they don't like your production or intended audience. For exampe the owners of a lot of music that you could otherwise license for standard industrial or broadcast uses (assuming you can afford it), even including tracks licensed from some buy-out and needle-drop libraries, expressly forbid its use in adult entertainment productions.

"Fair use" essentially says you make a single backup of recordings you own for archiving purposes only, you can transfer a recording from one medium to another in your possession in order to listen to it (so it's legal for you to copy a CD you own over to your MP3 player for your private personal listening) and also you can use (very) brief excerpts for criticism and educational purposes. Libraries and the government have a few other exemptions. Other than that, any other use whatsoever requires owning the rights yourself or securing a license to use it from whoever does own them. I think one could safely say that it's less than a one-in-a-million long-shot chance that whatever use anyone hanging out in this forum might want to put some music to would be allowed under "fair use" doctrines.
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Old August 27th, 2005, 02:17 PM   #15
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Quote:
Originally Posted by Steve House
"Fair use" essentially says you make a single backup of recordings you own for archiving purposes only
Sorry, but that's wrong. Fair use does not permit making backups of anything. You can freely copy audio for personal use under the AHRA, and can also make an archive copy of computer software pursuant to 17 U.S.C. 117. Libraries are authorized to make backup copies pursuant to 17 U.S.C. 108.

Quote:
you can transfer a recording from one medium to another in your possession in order to listen to it (so it's legal for you to copy a CD you own over to your MP3 player for your private personal listening) and also you can use (very) brief excerpts for criticism and educational purposes.
Note that the "educational purposes" fair use exception is rather arcane and very specific.
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