copyright warning

[Jeff Donald]

How the record companies pay royalties to their artists is irrelevant to copyright statutes and this discussion.

Wedding video guys and gals would be happy to pay reasonable royalties to the artists in questions but the artists/record company's agents can't be bothered.

The key phrase is reasonable royalties. The royalty payment system and process is in place and while wedding videographers may feel the fees are too high, they are what they are. You may feel the fees are too high, but that doesn't give you the legal right to take what doesn't belong to you. By that logic, if I don't like the price of Wal*Marts TV's I should just take it. After all their price isn't reasonable to me.

Rick, all I'm saying is I have an ethics problem with using the law to protect my work and then thwarting the same law to appease a client.

[Paul Tauger]

1. It is legal for a couple to hire a videographer to shoot and edit a wedding. Assume no music is on the video.

2. It is also legal for a couple to copy music they purchased for private listening onto a CD.

3. It is legal for the couple to watch the wedding video on a vcr or dvd player while playing that music on a CD player in the background.

4. It is however illegal if that music is copied onto the video itself.

It may not be illegal for _the couple_ to copy the music onto the video -- the AHRA permits some species of "personal use" music copying, though it's not clear whether it would extend to copying the music to video. It is not legal for the videographer/editor to copy the music, however.

[Rick Spilman]

Jeff,

At least read the thread.

A previous exchange between myself and Paul Tauger:

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For all intents and purposes there is no reasonable means for a wedding videographer to be "legal" - to pay the royalties and fees on copyrighted music so that he/she can put the music his/her client asks for in the video.
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I'm well aware of that....

There is no mechanism for a wedding videographer to pay royalties, so be so kind as to stop accusing honest hard working folks of theft akin to stealing TVs from Walmart.

[Paul Tauger]

The problem, though, isn't the law, but the fact that technological advances have resulted in situations that the law never anticipated. It's Congress' job to remedy these situations -- they did so with the AHRA, which had the result of turning millions of college students from potential felons to mere collectors. In my opinion, they made things infinitely worse with the DMCA (though, fortunately, there is evidently some movement towards revising it to make it less weighted towards the major content publisher/distributors.

The law isn't a static thing -- it grows and adapts as society changes. With the explosive growth in increased accessibility to video production that has taken place in the last decade or so, copyright law will simply have to change.

There is, I think, a wedding videographers association. That organization should invest some money in lobbying Congress to pass a "small commercial use" compulsory license fee, which would solve everything.

[Rick Spilman]

As I understand it, the foundation of current copyright statutes is based on laws enacted to protect the rights of piano roll producers for player pianos. Obviously times and technologies have changed.

In my, no doubt, highly biased view the record industry has succeeded in progressively accumulating rights that it has no right to, exceeding comparable protections in the publishing industry. Its attempts to block new technolgies and extort royalties from those that it could not block has been reprehensible. (The RIAA's recent attempts to claim royalties on used CDs strikes me as merely bizarre.) I certainly agree about the DMCA. I am not sure how one can reconcile the DMCA with the First Amendment.

I suspect WEVA, the wedding videographer's group, has just decided to lay low and muddle on. Attempting to lobby against RIAA is probably a losing battle under any circumstances. I think WEVA prefers to try to stay under the radar. I am told that there are competitions for best video and so forth at yearly WEVA conventions. I've never been but I am told that every one of the competitors invariably use copyrighted music.

[Paul Tauger]

As I understand it, the foundation of current copyright statutes is based on laws enacted to protect the rights of piano roll producers for player pianos.

Not true at all. The codification of copyright began in Britain with the Statute of Anne, several hundred years ago. The U.S. implementation of copyright law was based on Britain's version, and was authorized by Article I, Section 8 of the U.S. Constitution. I don't recall when the first copyright statute was enacted, but the US had common-law copyright protection dating back to beginning of this country (common-law copyright was eliminated in 1978 -- it's all statutory now). Congress tinkers with copyright law constantly, and there have been numerous revisions and overhauls.

In my, no doubt, highly biased view the record industry has succeeded in progressively accumulating rights that it has no right to, exceeding comparable protections in the publishing industry.

I agree, though they're not the only villains in the piece. All the corporate content producer/distributors are equally responsible. It was the movie studios, and, particularly, Disney, that lobbied successfully to have the copyright term extend to, I think, ridiculous lengths. You can also blame them, along with the cable and satellite TV companies, for the onerous provisions of the DMCA.

(The RIAA's recent attempts to claim royalties on used CDs strikes me as merely bizarre.)

I haven't heard about this, but I don't see any way they can succeed. First Sale Doctrine generally trumps any of these, "I didn't sell you expression, I only licensed it to you" schemes.

I am not sure how one can reconcile the DMCA with the First Amendment.

The DMCA's only relationship to the First Amendment is in the context of Fair Use doctrine, with which it clearly is in conflict. It is also in conflict with the AHRA. The changes to the DMCA that I alluded to earlier are, evidently, intended to resolve the conflicts.

Attempting to lobby against RIAA is probably a losing battle under any circumstances.

It's Congress, and not the RIAA, that must be lobbied. A compulsory license is a creature of statute, and would provide a simple means of letting someone who wants to use protected expression in a specific context do so simply by paying a set royalty to the designated body -- no permission from the copyright owner required.

I think WEVA prefers to try to stay under the radar. I am told that there are competitions for best video and so forth at yearly WEVA conventions. I've never been but I am told that every one of the competitors invariably use copyrighted music.

Well, you can't have it both ways. Either continue to wink at the law by copying music illegally, or call the attention of the lawmakers to the problem (and they might be receptive -- most of them got married, or had children who got or are getting married, and they all would like a wedding video with their favorite song on it). If WEVA chooses the former course, though, it is simply disingenuous to complain about the state of the law.

[Rick Spilman]

I wrote that sentence very badly. Of course the copyright statutes predate the founding of our country. I was referring (very unclearly) to the Supreme Court ruling of 1908 in favor of White-Smith Music Publishing Company against Apollo Co., maker of player piano scrolls, opining that piano scrolls were not copies and therefore did not infringe, which the Congress reacted to by amending the Copyright Act to include the "new" technologies such as piano rolls and sound recordings. Appropriate that what initiated the changes to the law were "new" technologies.

As far as WEVA goes, I am not a member and I can't speak for it. Lobbying Congress against the likely opposition of the RIAA hordes, seems to me like a bad bet. To my knowledge, WEVA is entirely silent on the issue of copyrighted music in wedding videos.

[Jeff Donald]

Rick, when I owned my production company I frequently purchased what was called "Sync Rights". I purchased them upon the advice of my intellectual property attorney. These rights are owned by the music publishers and are paid directly to them. I typically paid between $25 and $100. If the work was for a non-profit or I was donating my services (which I frequently do) many times the fee was waived. These rights allowed me to use an existing recording and synchronize visual images to them and onto another medium.

To the best of my knowledge these rights still exist and represent a reasonable way to pay the necessary fees. I always paid for them over the phone (with credit card) or they would invoice me.

I haven't had to purchase Sync Rights in over 8 years. I know there have been several revisions of the copyright laws since then. Paul, would these be applicable to wedding videographers producing tapes with images synced to music? Does anyone know what the going rate for Sync Rights is?

[Paul Tauger]

I haven't had to purchase Sync Rights in over 8 years. I know there have been several revisions of the copyright laws since then. Paul, would these be applicable to wedding videographers producing tapes with images synced to music? Does anyone know what the going rate for Sync Rights is?

Synchronization rights would be applicable to wedding videographers but, as I recall, are only half of the picture (it's been a long, long time since I was involved in this aspect of IP law). Sync rights are exactly what they sound like -- they permit a recording to be synced to a motion picture or video. However, if I remember this right, you still need to obtain rights to the underlying work it self. Since it's the music publishers who generally own them, you probably got everything all at once.

[Annie Cheatham]

How about this situaion.... When I'm filming a wedding there is always music in the background - usually popular music that the DJ is playing. So its fine (legal) to have the music playing that was recorded on the actual video, but not legal to substitute the same background music for a more clear (copied from the CD) version?

Annie C

[Paul Tauger]

So its fine (legal) to have the music playing that was recorded on the actual video

Umm, no, it's not. Please read what I wrote about incidental reproduction _in_this_thread.

[Annie Cheatham]

But theres no way to take the original background music out of the video without taking out whatever is being said at the time... If that is also a violation of copyright there is nothing most of us are going to be able to do about it.

I sure am learning alot about the subject though...

Annie C

[Rick Spilman]

If I am not mistaken you also need a mechanical license in order to "publish" the tape or DVD. I think this is where it all breaks down. Harry Fox sells licenses for no less than 500 copies which covers the music publisher, then there is BMI or ASCAP who represents the peformers and basically can't be bothered.

If this has changed or there is a new and easy way to do this I would love to hear it.

[Paul Tauger]

But theres no way to take the original background music out of the video without taking out whatever is being said at the time... If that is also a violation of copyright there is nothing most of us are going to be able to do about it.

The law varies from jurisdiction to jurisdiction, and is by no means clear. However, generally, where the incidental copying occurs because of what is essentially a reportorial activity (this comes up most often in news), and only sections of the piece are recorded, it is not deemed copyright infringement. In other words, it is likely that, if a wedding videographer tapes the bride's dance with her father, and the entire song isn't used, it would not violate the law. If, on the other hand, a wedding videographer records an entire song played by the band or DJ with his/her video camera, then uses it as a sound-track, doing insert edits of other scenes, that would incur liability.

Note this, though: I'm not anyone's lawyer here, and none of this is legal advice. Particularly with respect to copyright law in the context of incidental reproduction, there is certainly no bright-line rule. In fact, there are very few reported cases that deal with this at all.

Since no one wanted to go to Google and see what I've already written on this, I've copied my post below:

. . . to the question, "Is it infringement if my video contains music played by the band at a wedding?"

Unfortunately, the answer isn't exactly definitive (and somebody owes me a beer! ;) ).

First, a disclaimer:

NONE OF YOU ARE MY CLIENTS. I AM NOT YOUR ATTORNEY. THIS IS NOT LEGAL ADVICE. I AM DISCUSSING AN ABSTRACT PRINCIPLE OF LAW THAT IS OF GENERAL INTEREST. NOTHING IN THIS POST IS A LEGAL OPINION. DON'T RELY ON ANYTHING
I'VE WRITTEN. CONSULT YOUR OWN ATTORNEY IF YOU HAVE A QUESTION ABOUT POTENTIAL LIABILITY.

Okay, with that said, (and please, read and heed!):

The particular legal doctrine at issue here is called "Incidental
Reproduction." Incidental reproduction occurs when, as the name implies, copyright-protected material is reproduced as an incident to another activity, for example, in a motion picture, an actor is shown reading a Time magazine or, as is of interest to everyone here, when a wedding videographer tapes the couple's "first dance" and, in doing so, records the music played
by the band or DJ.

When Congress codified the equitable doctrine of fair use, it gave some examples (which are not part of the statute, but are part of the legislative history, which is considered "persuasive" when construing the statute) when the fair use defense would apply. These examples included: "incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being recorded.' " 1975 Senate Report 61-62; 1976 House Report 65, U.S.Code Cong. & Admin.News 1976, p. 5678.

Unfortunately, there aren't a whole lot of decisions which deal with this subject, and they aren't consistent.

I've found two cases, Italian Book Corp. v. American Broadcasting Co., 458 F.Supp. 65 (S.D.N.Y. 1978) and US v. ASCAP, 1993 WL 187863 (S.D.N.Y. 1993), that come close to being on point. Italian Book involved a plaintiff songwriter who sued a television crew that videotaped a parade at which plaintiff's song was played. The Italian Book court held the parade videotape to fall within the "incidental and fortuitous" fair use exception. The ASCAP case which, apparently, dealt with royalty allocation and
collection by ASCAP, includes a reference to another unpublished decision in the same matter in which a magistrate judge held that fair uses, which included "ambient music incidentally picked up during news and sports broadcast" should trigger either a full-program ASCAP fee, and should not be included in ASCAP's incidental-fee category.

However, at least one court has rejected Italian Book, denying fair use when an entire song was broadcast, not as a news event, but as live coverage of a festival. See Schumann v. Albuquerque Corp., 664 F.Supp. 473, 477 (D.N.M. 1987).

Nimmer, a legal treatise on copyright which can be cited as persuasive authority in American courts, characterizes application of fair use doctrine in this context as "spotty." Also, bear in mind that Italian Book is a NY district court case, and isn't binding anywhere. ASCAP is also a New York district court case, but it is an unpublished decision, which renders it even less persuasive. Schumann is a New Mexico district court case and it, too, is not controlling authority anywhere.

So, where does that leave us?

Well, unfortunately, with very little guidance from the courts. Wedding videos are funny things -- on the one hand, they can be considered analogous to news, in that they report an actual event. On the other hand, the public interest in allowing greater lattitude to news organizations isn't present (or, at least, not to the same degree) for wedding videos. It's simply impossible to predict which way any given court might go -- the focus might
be on the commercial, non-news aspect of a wedding video, resulting in infringement liability, or it might find the fact of limited distribution and impact on the commercial market for the underlying work does, in fact, constitute fair use.

Remember that fair use is an _equitable_ doctrine which is a _defense_ to infringement. The "equitable" part means that it is a fact-specific doctrine; different courts may come to different conclusions based on seemingly minor factual variations. The "defense" part means, you won't know whether you're liable or not until you're actually sued and a court rules.

If I were advising a client, I'd probably recommend the following:

1. Get an express, i.e. written, non-infringement opinion from an attorney. A proper non-infringement opinion from competent counsel is, for all intents and purposes, prima facie evidence that infringement was _non-intentional_. This is important, both in terms of limiting liability if you are sued, and for number 2, below.

2. Get a policy of general liability business insurance which includes an "advertising injury" provision that is sufficiently broad as to provide coverage for an infringement action predicated upon inadvertent inclusion of copyright-protected material in the video. Note, though, that whether or not a given policy will protect someone in such instance is, in itself, a difficult question to answer, and the answer should be provided by an attorney (or, better still, by the insurance agent, _in writing_). Number
1, above, is important because these insurance policies only protect against _negligent_ infringements; intentional infringement are outside the scope of coverage.

3. It would seem from the case law that, the less use made of the protected original, the more likely it is to be found fair use incidental reproduction. Therefore, it's probably a good idea to avoid using entire songs. I can think of other ramifications as well. For example, if you do an L- or J-cut, the "incidental music" would be functioning more as a soundtrack than as an incidently and fortuitously recorded background to a specific event, so I'd limit use of "incidental" music to the actual event it accompanies.

I can't (and won't) tell anyone in this group what they should do. It is important to realize that this particular factual pattern, i.e. incidental reproduction of music in a wedding video, is far from settled at law; I'm not sure anyone can give a dispositive answer at this point. My personal inclination is that incidental music in a wedding video probably should be considered a "fair use." However, I don't sit on any appellate courts, so my personal inclination doesn't count for much. That is, however, the defense that I would raise if one of my clients were sued in this context.

Finally, remember that what I've written here is the product of about 10 minutes of very hasty research. I would NEVER counsel a client based on such a skimpy review of the law. This is a complex question that requires more than just a passing review before an informed opinion can be provided.

Now, who's going to buy me that beer? ;)

[Jeff Donald]

My understanding, from 15 years ago, was the Sync Rights covered subsequent copies. This may have changed and maybe Paul or someone else can comment on the validity of my comments. The example my attorney used was Sync Rights purchased for a scene in a motion picture. The rights extended to the copies used for showing the movies in theatres. Rights for reproduction to rental tapes or DVD's might be separate, I don't know.

If copies of the wedding tape are not included, then it would be up to the B & G to make copies for personal use.

My understanding of the mechanical license was that would be needed if I wanted to produce a CD of music. The Harry Fox Agency is actually the ones that suggested Sync Rights as applicable to my usage. A producer of mine contacted them to obtain rights to a song. They informed her to use Sync Rights and to contact the publisher. At that point I contacted my IP attorney and he advised me to buy the Sync Rights. But again, this was some years ago.