Section 110 of the Copyright law says this is not infringement - Page 2 at DVinfo.net

Go Back   DV Info Net > And Now, For Something Completely Different... > Taking Care of Business

Taking Care of Business
The pen and paper aspects of DV -- put it in writing!


Reply
 
Thread Tools Search this Thread
Old January 11th, 2006, 11:14 PM   #16
Regular Crew
 
Join Date: Sep 2004
Posts: 143
CCLI has licensing agreements your church should pay for that permit certain instances of broadcast and re-distribution of copyrighted works.

I do not recall the specifics, but it is definitely not free, unlimited use.
Brian Wells is offline   Reply With Quote
Old January 12th, 2006, 12:29 AM   #17
Inner Circle
 
Join Date: Jun 2003
Location: Toronto, Canada
Posts: 4,750
Quote:
I'm unfamiliar with what you're referring to. Reverse engineering is not illegal. Trademark infringement is, and I routinely sue companies a lot bigger than Behringer when my clients' marks are infringed. Infringement actions are usually tried in federal court where, depending on jurisdiction, a case can take from 12 to 24 months to come to trial. The length of time is dependent on the court's docket, not on "lawyers [who] will tie up the case."
Behringer got into lawsuits with Aphex (Aphex won) and with Mackie (Behringer won, but settled out of court too I believe [may be because Mackie was going to pursue further action against Behringer, not sure]).

The Aphex case supposedly took six years, although that's based off what someone from Aphex said (see http://www.dvinfo.net/conf/showpost....92&postcount=2).

Behringer's products look similar to many other company's products, in particular:
http://www.record-producer.com/prepa...ble-tester.cfm
http://www.sweetwater.com/store/closeup/SwizzArmy--Main
Behringer, to me, looks like they copied the cable tester down to the silk screening. Ebtech has supposedly not sued Behringer because it's not worth it. Behringer is a German company.

2- Wedding videographers never being sued: I have no way of knowing for sure if a wedding videographer has ever been sued for using copyright music. However, WEVA's position on it is as follows:
Quote:
March 5 2003

WEVA OFFICIAL POSITION ON
COPYRIGHT ISSUE

Wedding videographers CAN clear music. Copyrighted material can be officially
cleared and "legally" used (by obtaining written permission) for wedding
productions. It is generally a tedious and laborious process because it must
be done on case-by-case, song-by-song basis, as here in the US there is no
music publishers "clearing house" that is able to grant "blanket recording
rights." ASCAP and BMI do not have the authority to grant recording rights.

WEVA International takes the position that it is up to each individual
wedding videographer (or their clients, per their contract terms) to secure
any permits that may be necessary for material used in a wedding video.
Regarding the music publishers: it is up to them, and not WEVA, to determine
what is of concern to them and their interests. They, of course, are fully
capable of speaking for themselves and initiating action on their behalf to
protect their own interests. Wedding videos containing copyrighted
(non-cleared) music have been produced for more than 20 years. The music
industry is obviously aware of this situation. Presently, we are not aware of
any litigation involving the use of music on a wedding video.

The 1976 Copyright Act (US Code, Title 17-Copyrights), is the governing
instrument for copyright protection. It discusses the matter of
"infringement" in great detail --what is (and is NOT) infringement and
establishes the remedies for infringements. Unfortunately, there is no
section or amendment specifically pertaining to "wedding videography."
Consequently, a definitive resolution in this area is ultimately subject to
Congressional review and judicial evaluation.

If infringement is occurring with respect to wedding videography it may be of
very minor concern to copyright holders (akin to going 22 mph in a 20 mph
zone) and not considered to be a case of substantial "wrongdoing" or an
"actionable" offense.

On the other hand, there are many who believe that certain provisions of the
Act may mean that music used for individual "home use," as opposed to use for
commercial distribution, does not constitute infringement. For example,
Section 107 (paragraph 1) of the Copyright Act says "...the fair use of a
copyrighted work, including such use by reproduction in copies or
phonorecords or by any other means specified...is not an infringement of
copyright." The Act states that several factors are used to determine "fair
use." One is "the purpose and character of the use," another factor cited is
"the effect of the use upon the potential market for or value of the
copyrighted work" (Section 107 paragraph 2). Other related matters may come
into play here as well, specifically the "Betamax decision" of the late of
70s which "legalized" taping of copyrighted works for home use.

In light of these and other factors, once again, it would be wrong for WEVA
to automatically assume that wedding videographers are "violators" or even
that the music industry is upset by this matter.

In short, WEVA International believes that all of us should comply with the
copyright law and further assumes that its members agree. WEVA also
recognizes that the law is not as clear in this area as it should be, and it
is not clear how concepts such as "fair use" will apply to wedding
videography. We hope that the law will be clarified by Congress and the
courts in the future and we will continue our efforts to achieve such
clarification.

-------------------------------------------------------------------------------------------
3- Anyways, I'm not a lawyer and I'm wasting my time here.
Glenn Chan is offline   Reply With Quote
Old January 12th, 2006, 07:25 AM   #18
Inner Circle
 
Join Date: Jan 2004
Location: Boca Raton, FL
Posts: 2,979
Quote:
Originally Posted by Pete Bauer
Question 6 in the FAQ explicitly references use of copyright works in music videos, synching, and broadcasting. ... But a broadcast of same, a music video, or other such synching of copyright music to your own video would most definitely be infringement ...
Does that rewording take care of the lingering doubts?
The rewording sheds light. Recording, broadcasting, and music performance activities aren't separated in the FAQ. Seems it gives the illustrations of a "musical video presentation" and then talks about infringement based recording/broadcasting. Cleaning that up would improve the FAQ.

You mentioned performance of video synch'd to music as separate from performance of music and that it is infringement. I've read discussions that refer to synching but I haven't found anything about it (yet) in the Copyright law.

Does anyone know how performance of music with sync'd video (not recording or broadcast) is different from performance as defined in section 101 and therefore infringement when performance of just the music is not?
Les Wilson is offline   Reply With Quote
Old January 12th, 2006, 07:34 AM   #19
Inner Circle
 
Join Date: Sep 2002
Location: San Mateo, CA
Posts: 3,840
Glen,

It sounds like Behringer was tresspassing on "trade dress" and possibly patent infrengement. Either one will get your butt slapped pretty good.
Richard Alvarez is offline   Reply With Quote
Old January 12th, 2006, 10:01 AM   #20
Inner Circle
 
Join Date: Mar 2005
Location: Hamilton, Ontario, Canada
Posts: 5,742
Quote:
Originally Posted by Ernest House
...
Does anyone know how performance of music with sync'd video (not recording or broadcast) is different from performance as defined in section 101 and therefore infringement when performance of just the music is not?
The term "synching" does not mean playing music to accompany the display of a video or film such as the theatre organist did back in the silent movie days (although that's probably where the term originated). It means adding a recording of the music to the recording of the video so that the music becomes an integral part of the soundtrack of the completed work. The music is then said to have been synced to picture just like the dialog. You need a sync license to incorporate the music into the production in the first place and then a separate "mechanical" license to make and distribute copies of the completed work containing that music and a performance license to show it publically.
__________________
Good news, Cousins! This week's chocolate ration is 15 grams!
Steve House is offline   Reply With Quote
Old January 13th, 2006, 08:42 PM   #21
Inner Circle
 
Join Date: Jan 2004
Location: Boca Raton, FL
Posts: 2,979
In the interest of contributing toward improving the FAQ, and given what's been ferreted out here, I wrote/assembled the revamp of the answer to question 6 below. It isn't short but it is more precise and I hope it retains the intents and illustrations of the original.
-----snip-----
Regardless of whether money changes hands or not, donative, remunerative, or free, it is a violation of the law to broadcast copyrighted works**. Damages can be determined based on the impact of the use of the work. For instance, if a song from “Jars of Clay”* was used in the broadcast or web video of a Mormon service, and “Jars of Clay” didn’t want to be associated with the Mormon community and further it was found that the use of their song may have had negative impact on "Jars of Clay" record sales in the Christian community, the fines would be stiff and swift. It is worth noting that section 110 of the Copyright law gives churches and other institutions, rights relating to performance of a work under specific situations that are specified in that section. Making a video recording of a public performance, whether the underlying material is presented pursuant to license or is defined as non-infringing under Section 110, is still making an unauthorized copy, which is a separate reserved right. So while a public performance may be granted in section 110, it does not grant recording rights to do a broadcast or web transmission.**

Even under the conditions when performance of a musical work is allowed by section 110, synchronizing the work to a video so that the music becomes an integral part of the soundtrack of the completed work is infringement unless a sync license is acquired from the owner of the work. Additionally, a separate "mechanical" license is needed to make and distribute copies of the completed work containing that music. A public performance of a work outside the conditions granted in section 110 requires a performance license.

So if a Baptist church program synced Eminem’s* music to an anti-cursing video, or if a Satanic church synchronized the Mormon Tabernacle Choir* to visual hate messages, both would be infringing for synchronizing music to video. In addition to infringement, they could also be potentially found to be commercially impinging, not just technically damaging.

????Is this right????
Both individuals and organizations could incur stiff fines.
????Is this right????

I don't mean to be disrespectful, but many people seem to be of the opinion that if the work is for religious value, then 'no harm, no foul.' The law doesn't look at infringement that way. It grants specific rights to churches and other institutions to perform works under specific conditions.

* The use of any artists name in this article is not to suggest any knowledge of real or imagined circumstance. The names are used only for illustrative purposes and bear no resemblance to reality.

** In the Section 101 definition of "performance", it says:
"to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times." This would seem to imply broadcasting it is not infringement when done when allowed in section 110. This issue needs clarification.
----snip----
That untangles the things I found inconsistent with the FAQ, what I read in the Copyright law and what was distilled here. Thank you to those who read my long posts and gave thoughtful responses. You guys can do what you want with it. I have more questions now that this stuff is sinking in but I think I'll start another thread sometime when I have time.

Last edited by Les Wilson; January 13th, 2006 at 10:34 PM.
Les Wilson is offline   Reply With Quote
Old January 15th, 2006, 10:29 PM   #22
Trustee
 
Join Date: Feb 2004
Location: Suwanee, GA
Posts: 1,241
Ernest, that does not correctly address the FAQ though. You can make copies of copyrighted work as you describe with the proper permissions usually through a licensing agreement. If you license the work, usually with the assistance of an IP lawyer, a specialist who does synch rights, or directly with the rights holder, you can do it. It may take a bit of work though and may not be timely.
George Ellis is offline   Reply With Quote
Old January 16th, 2006, 07:57 AM   #23
Inner Circle
 
Join Date: Mar 2005
Location: Hamilton, Ontario, Canada
Posts: 5,742
Quote:
Originally Posted by Glenn Chan
...

2- Wedding videographers never being sued: I have no way of knowing for sure if a wedding videographer has ever been sued for using copyright music. However, WEVA's position on it is as follows:
In other words, their position is "don't ask, don't tell!" LOL

Quote:
On the other hand, there are many who believe that certain provisions of the
Act may mean that music used for individual "home use," as opposed to use for
commercial distribution, does not constitute infringement. ... <snip> ... Other related matters may come
into play here as well, specifically the "Betamax decision" of the late of ‘‘
70s which "legalized" taping of copyrighted works for home use.
It boggles my mind that the folks mentioned in that WEVA position statement can stretch the fair-use doctrine that allows someone to make a copy for their own personal use of a recording they own to try to also cover a business that is making copies of recordings the client perhaps already owns (or not), incorporating the copies as a component into their own product, and then selling the resulting product to their clients. I wonder how long a business would last before being sued that advertised "Why risk loss of your valuable CDs when you take them in your car? Bring 'em to us and we'll make copies for you to take on the road so you can leave the originals safe and sound at home!"
__________________
Good news, Cousins! This week's chocolate ration is 15 grams!
Steve House is offline   Reply With Quote
Old January 17th, 2006, 09:18 PM   #24
Inner Circle
 
Join Date: Jan 2004
Location: Boca Raton, FL
Posts: 2,979
Quote:
Originally Posted by George Ellis
Ernest, that does not correctly address the FAQ though. You can make copies of copyrighted work as you describe with the proper permissions usually through a licensing agreement. If you license the work, usually with the assistance of an IP lawyer, a specialist who does synch rights, or directly with the rights holder, you can do it. It may take a bit of work though and may not be timely.
I've stared at my post and can't connect this comment to it. I felt my revamp (while not comprehensive) hit on the same topics but improved on the lack of precision of the original FAQ answer. I found the original difficult to understand in it's ambiguity and apparent conflict (IMHO) with the copyright act. Maybe you are adding more precision, I don't know.

In retrospect, I think this thread illustrates how all the licensing surrounding music is excessive, unique in its over rigidity, made music accessible only by the rich and therefore ultimately stifles "the public good" which, if I read Paul Tauger correctly, is the balancing act of Copyright Law and the First Amendment.
Les Wilson is offline   Reply With Quote
Old January 18th, 2006, 06:59 AM   #25
Inner Circle
 
Join Date: Mar 2005
Location: Hamilton, Ontario, Canada
Posts: 5,742
Quote:
Originally Posted by Ernest House
I've stared at my post and can't connect this comment to it. I felt my revamp (while not comprehensive) hit on the same topics but improved on the lack of precision of the original FAQ answer. I found the original difficult to understand in it's ambiguity and apparent conflict (IMHO) with the copyright act. Maybe you are adding more precision, I don't know.

In retrospect, I think this thread illustrates how all the licensing surrounding music is excessive, unique in its over rigidity, made music accessible only by the rich and therefore ultimately stifles "the public good" which, if I read Paul Tauger correctly, is the balancing act of Copyright Law and the First Amendment.
But put yourself on the reverse side of the equation. You spent a lot of time and effort, years practicing to learn your craft, and perhaps a lot of money shooting a collection of scenic videos that are rare and magical. You are distributing them on DVD as part of a travelogue you have put together. A travel agency owner buys a copy of the DVD, lifts those clips from it, and uses them in a presentation for their travel agency at a Vacation and Travel Showcase sort of venue, without payment to you or attribution for your work. How would you feel? Do you think the laws that make that illegal and give you recourse to legal remedies are overly rigid and favouring of the rich? How does your scenic video differ from a song on a CD marketed by Sony? And finally, in terms of the religious "fair use" exceptions, how is it in any way different, in terms of fairness to you to you and respect for your efforts and rights, for the travel agent to use your video clips of Jerusalem without permission in a presentation to sell package tours versus a church using the same clips without permission in a presentation on "The Land the Jesus Walked" to be shown during a worship service (and would you feel any differently if the religious organization using them was diametrically in opposition to your own religious views)?
__________________
Good news, Cousins! This week's chocolate ration is 15 grams!
Steve House is offline   Reply With Quote
Old January 18th, 2006, 08:16 PM   #26
Inner Circle
 
Join Date: Jan 2004
Location: Boca Raton, FL
Posts: 2,979
I use those points myself when defending copyrights against those who think it's OK to steal music other copyrighted work. That isn't what I meant. I'll try again.

I started this thread trying to reconcile the FAQ answer to the copyright act. What ensued was much elaboration and clarification on the licenses required to use music in a video production which was what the question 6 illustrations used. Your posts were very helpful and you mentioned the licenses succinctly as:
Sync
Mechanical
Performance

Getting a performance license is a straight forward reasonably priced transaction from a place like ASCAP.

However, there is not such a process for getting a sync license for the same copyrighted work. It is not an easy online activity with an umbrella group like ASCAP, rather, from what I can tell, it is done only by the current owner of the work and as George Ellis put it, usually requires "the assistance of an IP lawyer, a specialist who does synch rights, or directly with the rights holder, you can do it. It may take a bit of work though and may not be timely."

As an experiment, I researched a couple of titles from my CD collection. Each one was a popular modern work and yet contacting the owner was going to have to be a snail mail or phone call contact. Even getting the mailing address was difficult. There were no websites for any of the owners. Asking around amongst some professional producer friends, I learned it could easily take thousands of dollars in attorneys fees, thousands of dollars for a license and not be done quickly. Just like George said.

It's the difficulty and expense for a sync license that I meant when I referred to the excessive licensing and rigidity around music. Thus my conclusion that the music video art form, done by the rules, is only accessible by the rich. I am not a copyright scholar but having the music video art form controlled by attorneys and accessible only to the rich didn't line up with other writings I'd read on how the system was supposed to work in terms of encouraging "derivative works" and "serving the public good". AFAIK, those principles are fundamental to the way copyright protection and the first amendment are supposed to interact. Paul Tauger referred to it as "tension" between the two.

So, over the years I've tackled lighting, mic'ing, editting, web, dvd, sports, comedy, and documentaries. It would appear for now, music video is out of reach for those learning the craft. Fortunately, there's no license required to use three-point lighting.
Les Wilson is offline   Reply With Quote
Old January 18th, 2006, 09:11 PM   #27
Inner Circle
 
Join Date: Sep 2002
Location: San Mateo, CA
Posts: 3,840
Ernest.

YOU WROTE:

"...Each one was a popular modern work and yet contacting the owner was going to have to be a snail mail or phone call contact. Even getting the mailing address was difficult. There were no websites for any of the owners. Asking around amongst some professional producer friends, I learned it could easily take thousands of dollars in attorneys fees, thousands of dollars for a license and not be done quickly. Just like George said. "


There is absolutely NOTHING to prevent someone from GIVING you the rights to their work for free.

Absolutely nothing.

It's just highly unlikely that anyone would want to. And why should they?

The costs incured to track down rights, don't HAVE to be high. They just take time.

Time costs money. It always does. If your time is not expensive, you can find out absolutely everything you want to know, simply by spending enough time on it.

There are HUGE numbers of bands out there, who aren't famous, who will be happy to license synch rights to their music. You just have to put in the BTU's to find them.

Here. Here's a great place to start. http://www.unsignedbandweb.com/

YOU WROTE: "It's the difficulty and expense for a sync license that I meant when I referred to the excessive licensing and rigidity around music."


You can get synch rights to nifty music for free in some cases, and small change in others. The internet makes for a GREAT place to find royalty free, needle drop and buy-out music. It's not hard or expensive or even time consuming to find these sites and buy the rights.

It's just that the music isn't already famous and popular.

You see, someone has already spent enormous ammounts of time and money making popular music... well, POPULAR.

They want to recoup that time and money. Funny how that works.

Complaining about how difficult it is to get the synch rights to POPULAR music,(and despite the lack of use of that word in your post, it IS the type of music you are looking for) is like complaining how difficult it is to get to spend time with a celebrity. It sure doesn't seem fair now, does it?
Richard Alvarez is offline   Reply With Quote
Old January 18th, 2006, 10:11 PM   #28
Inner Circle
 
Join Date: Jan 2004
Location: Boca Raton, FL
Posts: 2,979
Am I complaining? Didn't think I was. I get your points but I'm not sure you really got mine since you compare non-popular and popular works. Here it is spun a different way:

It costs 99 cents for a license to "own" a copy for listening to a POPULAR work. So even though, as you say, someone "has already spent enormous ammounts of time and money making popular music ...well popular", it's reasonably priced and easy to access.

It costs a few dollars, maybe a couple tens of dollars for a performance license of a POPULAR work. Again, reasonable priced and easy to access through one of a small number of umbrella organizations online even though someone "has already spent enormous ammounts of time and money making popular music ...well popular".

But, to sync video to the same work costs thousands in legal fees on top of thousands for a sync license.

Same POPULAR work but significantly more expensive and, as you say, lots more "BTUs".
Les Wilson is offline   Reply With Quote
Old January 18th, 2006, 10:56 PM   #29
Inner Circle
 
Join Date: Mar 2005
Location: Hamilton, Ontario, Canada
Posts: 5,742
Quote:
Originally Posted by Ernest House
A
...

It costs 99 cents for a license to "own" a copy for listening to a POPULAR work. So even though, as you say, someone "has already spent enormous ammounts of time and money making popular music ...well popular", it's reasonably priced and easy to access.

It costs a few dollars, maybe a couple tens of dollars for a performance license of a POPULAR work. ...

But, to sync video to the same work costs thousands in legal fees on top of thousands for a sync license.

Same POPULAR work but significantly more expensive and, as you say, lots more "BTUs".
True enough - but one could argue that a fair scheme is one that would result in the copyright owner getting paid some certain amount each time one individual hears one playing of the song. The purchase of the song for $0.99 is exposing the song to one individual listening to it a limited number of times. The few tens of dollars for a performance license is exposing the song to one listen by a few hundred individuals. But a sync license potentially exposes the song to "listens" by tens of thousands of purchasers or viewers of the final production. So in that sense, several thousands of dollars for a sync license to include a song in a video release is about the same cost, perhaps even a much LOWER cost, on a "per person, per listen" basis as the 99 cent download to your iPod from iMusic.
__________________
Good news, Cousins! This week's chocolate ration is 15 grams!
Steve House is offline   Reply With Quote
Old January 19th, 2006, 06:38 AM   #30
Inner Circle
 
Join Date: Jan 2004
Location: Boca Raton, FL
Posts: 2,979
I keep forgetting to mention how entertaining your tag line is. Always good for a smile.

Again, good analysis from the "House" department. :-) I think it's the fact that the whole licensing process shifts from "reasonable-online-automated-pricing grid" to "prohibitive-manual-attorney-expensive black hole" that strikes me as excessive and ultimately not "serving the public good". But, I'm a newbie to this whole scene. I would think some video-music works don't, by definition have a distribution of tens of thousands. The sync license pricing could reflect the number of ears and number of performances as part of the final license price. Thanks for putting up with my newbie questions and analysis.
Les Wilson is offline   Reply
Reply

DV Info Net refers all where-to-buy and where-to-rent questions exclusively to these trusted full line dealers and rental houses...

Professional Video
(800) 833-4801
Portland, OR

B&H Photo Video
(866) 521-7381
New York, NY

Z.G.C.
(973) 335-4460
Mountain Lakes, NJ

Abel Cine Tech
(888) 700-4416
N.Y. NY & L.A. CA

Precision Camera
(800) 677-1023
Austin, TX

DV Info Net also encourages you to support local businesses and buy from an authorized dealer in your neighborhood.
  You are here: DV Info Net > And Now, For Something Completely Different... > Taking Care of Business

Thread Tools Search this Thread
Search this Thread:

Advanced Search

 



Google
 

All times are GMT -6. The time now is 03:38 AM.


DV Info Net -- Real Names, Real People, Real Info!
1998-2017 The Digital Video Information Network