Music License trouble... (stupid of me...)

Mike Harvey · July 14th, 2009, 09:47 PM

I have a theoretical situation for Dave... You shoot the wedding and make 10 DVD's. What if you purchased the song 10 times (one copy for each DVD), and upon handing over the DVD's, destroy or delete the song files? With $.99 downloads from a variety of sources, it's not exactly cost prohibitive. Since you purchased 10 copies of the song, and there are only 10 copies in existence... would this scenario run afoul of copyright law?

Jason Robinson · July 14th, 2009, 09:58 PM

Yes. that is still 100% illegal. Potentially more mentally justifiable, but still 100% illegal. UNLESS you purchased the song from a source that gave you synch and duplication rights with each copy you purchased.

Lets try and get this pounded into the collective heads of videographers in teh USA (all other nations can ignore this post as other rules apply)........

Purchasing a song is fine and dandy, but if you didn't purchase additional rights, all you can do is play the song to yourself in your own home or on your iPod (etc).

That does not involve the ability to do ANYTHING else with the song.

That is the state of copyright law as it exists today.

Your suggestion is mental gymnastics to get around the guilt of breaking the law. Many of us do exactly as you mentioned, but all are 100% illegal.

Mike Harvey · July 14th, 2009, 10:16 PM

Quote:

Originally Posted by Jason Robinson

Your suggestion is mental gymnastics to get around the guilt of breaking the law. Many of us do exactly as you mentioned, but all are 100% illegal.

No, it is not mental gymnastics... it is a legitimate question. If I was trying to "get around the guilt of breaking the law", I wouldn't have asked and just started doing it. Since this entire thread has been predicated on someone buying *one* copy and making multiple copies of the original and then using it on the web for public display, I was curious if buying a copy for every DVD and then deleting the originals once the DVD's were finished... thereby maintaining the same amount of copies in existence as the amount purchased... was staying within the bounds of the law.

It seems to me that most of these license you can buy were set up for large scale distribution. For a small scale (10 copies) distribution for private use, I would think that the license holder would make more money per copy that way. BUT, I didn't know if it was illegal or not. I am not a lawyer, let alone a copyright lawyer. Dave apparently is, so I asked him since he would know. That's not trying to play mental gymnastics, but trying to get clarification so as not to run afoul of the law or screw over the license holder.

Dave Blackhurst · July 15th, 2009, 02:32 AM

Actually Paul's the lawyer, I just spend more time than I'd like doing legal analysis... I'm a layperson, but I've got a pretty good understanding of how law "works" or at least how it should... truth be known, it doesn't all too many times... but that's the subject of a website I'll be launching soon. Law and sausages...

To clarify, I'm not an attorney, and I don't play one on TV or the internet... Even the attorneys who pop in won't give you any legal advice, particularly in an area this problematic. We can discuss these things civilly, but don't rely on it as anything other than intelligent, thought provoking discussion of a question.

I have done more than a fair amount of case law and statutory research, and as Paul notes, there just isn't a clear answer - I don't pretend there is (law is often fluid, and technological or societal change can make legal "illegal", and vice versa). We can do things with technology that were not conceivable or economical not too long ago - and that creates potential scenarios that will have to be resolved over time - I don't believe they have been adequately addressed as of yet.

Review my post about the 3 (or 4?) scenarios. I believe it's reasonably close to the "state of the law", keep in mind this area of law is not well defined, as the technologies simply haven't been around long enough for there to be a lot of precedent (read Pauls comments VERY carefully!)

I'm fairly sure "incidental" capture, with Paul's caveats is defensable, and I am aware of one studio moving into adding video that seems to concurr, and is willing to put it in their terms when hiring subcontractors. Then again, they may be whistling in the dark.

I believe that media shifting is a defensable concept and fairly soundly based in precedent, I believe Paul concurrs. BUT, until a case comes up that fits this VERY limited fact set, it's a theory. It relies to some extent on "sync rights" as currently defined not applying to a private, personal end use of the media in the same way as it would for a major studio using a song as part of a soundtrack for a major studio, wide distribution release. Would it hold in Court? No way of knowing, but the cost of finding out could be rather high.

Your approach of buying as many copies as required shows a clear intent to compensate the IP holder (thereby mitigating any damages, again in theory, presuming your video doesn't otherwise harm the artist or their image), making prosecuting you a little harder when the media shifting defense kicks in. I can buy 5 copies of a CD I like for friends and give them to them as presents, and I didn't break any laws, "media shifting" is legal, and the major studios are even adding digital files for portable use right on some DVD's I've seen... so IN THEORY you've got an affirmative defense.

It's not mental gymnastics, it's trying to find a viable approach that allows for reasonable use and compensation to the IP holder - it would be nice if such a system was in place, or there were contractual or legal precedent. Neither applies AFAIK, so the best I can say is proceed at your own informed risk. I don't think the risk is large, but when the RIAA attorneys started cracking grandmas knuckles... well, you have to decide your risk tolerance.

Keep in mind that these sorts of mental excercises are exactly how law gets formed and changed (more typically by lawyers and Judges than laypeople, but we're a smart lot around here...). It's good that this thread has remained on a high intellectual level for once, let's keep it that way.

The SAFE answer is to use royalty free or buyout or compose your own... or a friendly local musician...

The "practical" answer I suspect many use is to take the approach you suggest and keep a rabbit's foot handy... and don't walk under ladders... or break any mirrors... and avoid black cats...

PS- As for the genius who thought he was doing something cool in releasing the G'n'R tracks ON THE WEB... well, he sure got off easy... unless it was all part of a publicity stunt... sometimes things are not what they seem. I think his "infringement" got more press than the actual album release... leading to the question... if you infringe on a song no one even cares about, is it still infringement? <wink>

PPS - the answer is yes, because the ARTIST cares... but they might let you use it for free or a reasonable compensation if you show you care!

Doug Bennett · July 15th, 2009, 06:42 AM

The point in this case is not that the videographer broke some legal provision, the point is he behaved badly in attempting to gain competitive advantage by choosing to use copyrighted music without permission. Once he was caught the "everybody does it" bubble burst, guilt (in the moral sense) was undeniable.

If the bride had said "this is my favorite piece of music please use it for the montage" and the videographer had credited the artist correctly, then arguably, the legal situation may have been the same. But the ethical implications would have been very different.

Beware. A lot of the "wedding video is a crime" contingent are just wanting a smokescreen to sell elaborate music videos without regard for law or morals.

Noel Lising · July 15th, 2009, 07:19 AM

Quote:

Originally Posted by Dave Blackhurst

Review my post about the 3 (or 4?) scenarios. I believe it's reasonably close to the "state of the law", keep in mind this area of law is not well defined, as the technologies simply haven't been around long enough for there to be a lot of precedent (read Pauls comments VERY carefully!)

This has been the defense of the Microsoft Anti-trust lawsuit. Apparently the law only mentioned phone, electricity and no mention of Operating Systems/Computers with regards to monopoly. We all know how it went.

Mike Harvey · July 15th, 2009, 10:32 AM

Oops, sorry... didn't mean to get you and Paul confused, Dave. (It was one of those days)

Quote:

Originally Posted by Dave Blackhurst

The "practical" answer I suspect many use is to take the approach you suggest and keep a rabbit's foot handy... and don't walk under ladders... or break any mirrors... and avoid black cats...

My problem is that with my luck, I would drop the rabbits foot as I tripped over a black cat under a ladder and fell into a mirror... which is why I asked.

I had thought of this idea a few months back, but your scenarios reminded me of it. Since most of these laws seem to be written with, and aimed at, the idea of public display or mass distribution, I didn't know if simply buying enough copies for a very limited distribution for private viewing would satisfy the copyright (i.e. "media shifting") provided it never makes it to Youtube. Since a lawyer with copyright knowledge was on this thread, figured I should probably ask. I think I may wait for Paul to chime in before I attempt something like that (see my answer above about my luck)... with the full understanding that any answer Paul may give on an internet board probably wouldn't constitute "legal advice" in a court of law. ("But your honor, some guy claiming to be a lawyer on the internet said I could...!")

Jim Snow · July 15th, 2009, 11:24 AM

J.J., I believe your were very fortunate that you were involved with the musician directly who in the end showed that he wanted to be reasonable even though he was obviously irritated at what you did. I suspect you would have had a much more difficult time if you were dealing with the attorney for the estate of a deceased musician. I imagine some of these attorneys would be heartless. They aren't paid to be understanding; they are paid to grub as much money for the estate as possible.

Ethan Cooper · July 15th, 2009, 11:59 AM

Quote:

Originally Posted by Bruce Patterson

Canada DOES have an association that regulates and allows you to play commercial music in wedding films! Contact the CMRRA @ www.cmrra.ca for more information. There's a PDF which clearly outlines the fees and then you're good to go! Not sure what's going on in the US though.

I also remember reading somewhere that Australia has some type of fee structure for using commercial music. I'm no expert on the matter so don't take my word as gospel.

This idea hit me after lunch today, would it be possible (and legal) for me, doing business in the United States to incorporate my business in either Canada or Australia, pay the fees to legally use this music in my productions and sell them in the States? I figure that type of thing would get complicated and might get pricey with tax structures and whatnot but would it be legal?

David Barnett · July 15th, 2009, 12:54 PM

Quote:

Originally Posted by Ethan Cooper

This idea hit me after lunch today, would it be possible (and legal) for me, doing business in the United States to incorporate my business in either Canada or Australia, pay the fees to legally use this music in my productions and sell them in the States? I figure that type of thing would get complicated and might get pricey with tax structures and whatnot but would it be legal?

Probably not for all materials, but I suppose myb it depends what it's for & how your distributing it. If you shoot a movie, use it. No, you wouldn't likely be able to sell it in America because you'd violate distribution terms. If you shoot a commercial... right out. It couldn't air in broadcast TV. If you shot a wedding, that took place in Canada, and was edited in Canada, I suppose that's a fine line but my guess is anything violating US copyright infringement cannot be be imported nor shipped thru customs (Granted, a few wedding dvd's would surely make it thru). The point of sale would likely need to take place in Canada. I can't really think of any instances where it could be tolerated or considered much of a slippery slope.

PS. Blackhurst I'm a pretty big fan of the band, well the original band, and had to laugh at your comment about "if you infringe on a song no one even cares about, is it still infringement?". That pretty much summed up that last album.

YouTube - Don't Cry (gnr reunion version)

Kevin Zibart · July 15th, 2009, 01:18 PM

Dance and cheer competitions are likely also breaking the law in a similar fashion. Not only are they playing licensed music to an audience without permission, but they often hire videographers who sell DVDs of the performances to the dancers, or even put clips of the performances online. Many also prohibit personal photography and videography, which is frustrating especially when none of the photos are of my child, or the video is SD and simply a static, wide-angle shot of the entire stage. I think the next time I'm told I can't video my own child's performance, I'll ask them about their music licensing... ;)

Dave Blackhurst · July 15th, 2009, 01:26 PM

Quote:

Originally Posted by Noel Lising

This has been the defense of the Microsoft Anti-trust lawsuit. Apparently the law only mentioned phone, electricity and no mention of Operating Systems/Computers with regards to monopoly. We all know how it went.

Noel -
Not sure the connection other than... the law can swing any way, and you don't want to be in the path... and I guess what you're saying is that one of the problem of laws written in one "technological era" often don't contemplate "future tech", and thus have to be re-tried with a "new" set of "facts", despite obvious similarities (thus my commentary on the high cost of "proving" what would appear on the surface to be common sense). Much of copyright code (the actual legislated law, not the judicially decided case law) uses the reference to "phonographic reproduction", i.e. vinyl records, if memory serves... can you say "out of touch"?

Ethan -
Most typically, you would be in Court in the jurisdiction you do business, or where the contract was executed, so not very likely international licenses or incorporation would be of any help... unless you've got a multinational video business, and even there the general rule is "when in Rome" - you have to follow the local rules/customs/laws.

Jim -
You are correct that JJ was very lucky. I think we can all understand the artist not being too happy to have been "ripped off" - that's a bad feeling, period, I'd be ticked off too, fortunately JJ was a gentleman and found the same. Even if JJ "borrowed" the tunes because he thought the were awesome, he should have asked and gotten permission - in this case he was lucky when he asked forgiveness (there are still decent people out there, and we all make mistakes, a little understanding goes a long way). It's just common decency to respect other people's property, even when that property is "intellectual" and encapsulated in 1's ands 0's.

As you note, when attorneys show up to the party, things can get a lot more complicated and perhaps ugly. Not ALL attorneys are money grubbing, but SOME are, and it's not a place to play the odds. There are a fair number of "bad operators" in any industry, and attorneys have far more latittude to do things the average citizen can't do or would consider repugnant - it's an unfortunate requirement to a "guilty until proven innocent" legal system.

David -
I too was a fan "in the day" - grew up and was in the LA music business/scene in the 80's-90's. It's scary when you realize that your music tastes are now "classic"... and what the kids all listen to is "garbage"... ouch. And as a friend of mine once commented while walking around at the National Association of Music Merchants show... there's a time when you need to hang up the spandex... PLEASE...

Dave Blackhurst · July 15th, 2009, 01:34 PM

Quote:

Originally Posted by Kevin Zibart

Dance and cheer competitions are likely also breaking the law in a similar fashion. Not only are they playing licensed music to an audience without permission, but they often hire videographers who sell DVDs of the performances to the dancers, or even put clips of the performances online. Many also prohibit personal photography and videography, which is frustrating especially when none of the photos are of my child, or the video is SD and simply a static, wide-angle shot of the entire stage. I think the next time I'm told I can't video my own child's performance, I'll ask them about their music licensing... ;)

Oh boy - "event video", a whole other can of worms... and we thought wedding videographers were the only "criminals"...

I've shot a couple of events for friends, and after looking at the mess of clearance issues, would probably decline or only shoot as a "friend". Also looked into shooting school plays (would be doing it anyway for MY kids), as a fund raiser for the school in tight times...

Too many potential legal issues, and while I felt they could be addressed, educators and event promoters typically know absolutely nothing about the legal issues, and if they do they know only enough to be scared of running afoul of some crazy parent or "ambulance chaser" type...

I can guarantee you'll freak them out royally when you ask about licensing <wink>!

Shaun Roemich · July 15th, 2009, 01:36 PM

ULTIMATELY, right or wrong doesn't REALLY matter squat in a court of law: it's who can afford to litigate the longest. (The words of my former sister-in-law, a lawyer)

Ethan Cooper · July 15th, 2009, 01:40 PM

I didn't figure my idea would fly, just tossing it out there.

July 15th, 2009, 01:36 PM	#89
Shaun Roemich Inner Circle Join Date: Sep 2002 Location: Vancouver, British Columbia (formerly Winnipeg, Manitoba) Canada Posts: 4,088	ULTIMATELY, right or wrong doesn't REALLY matter squat in a court of law: it's who can afford to litigate the longest. (The words of my former sister-in-law, a lawyer) __________________ Shaun C. Roemich Road Dog Media - Vancouver, BC - Videographer - Webcaster www.roaddogmedia.ca Blog: http://roaddogmedia.wordpress.com/

July 15th, 2009, 01:40 PM	#90
Ethan Cooper Trustee Join Date: Dec 2003 Location: Houma, La. Posts: 1,400 Images: 5	I didn't figure my idea would fly, just tossing it out there. __________________ ∅ -Ethan Cooper

July 14th, 2009, 09:47 PM	#76
Mike Harvey Regular Crew Join Date: Dec 2004 Location: Renton, WA Posts: 43	I have a theoretical situation for Dave... You shoot the wedding and make 10 DVD's. What if you purchased the song 10 times (one copy for each DVD), and upon handing over the DVD's, destroy or delete the song files? With $.99 downloads from a variety of sources, it's not exactly cost prohibitive. Since you purchased 10 copies of the song, and there are only 10 copies in existence... would this scenario run afoul of copyright law?

July 14th, 2009, 09:58 PM	#77
Jason Robinson Trustee Join Date: Mar 2006 Location: Boise, Idaho Posts: 1,997	Yes. that is still 100% illegal. Potentially more mentally justifiable, but still 100% illegal. UNLESS you purchased the song from a source that gave you synch and duplication rights with each copy you purchased. Lets try and get this pounded into the collective heads of videographers in teh USA (all other nations can ignore this post as other rules apply)........ Purchasing a song is fine and dandy, but if you didn't purchase additional rights, all you can do is play the song to yourself in your own home or on your iPod (etc). That does not involve the ability to do ANYTHING else with the song. That is the state of copyright law as it exists today. Your suggestion is mental gymnastics to get around the guilt of breaking the law. Many of us do exactly as you mentioned, but all are 100% illegal.

July 15th, 2009, 02:32 AM	#79
Dave Blackhurst Inner Circle Join Date: Feb 2007 Location: Apple Valley CA Posts: 4,874	Actually Paul's the lawyer, I just spend more time than I'd like doing legal analysis... I'm a layperson, but I've got a pretty good understanding of how law "works" or at least how it should... truth be known, it doesn't all too many times... but that's the subject of a website I'll be launching soon. Law and sausages... To clarify, I'm not an attorney, and I don't play one on TV or the internet... Even the attorneys who pop in won't give you any legal advice, particularly in an area this problematic. We can discuss these things civilly, but don't rely on it as anything other than intelligent, thought provoking discussion of a question. I have done more than a fair amount of case law and statutory research, and as Paul notes, there just isn't a clear answer - I don't pretend there is (law is often fluid, and technological or societal change can make legal "illegal", and vice versa). We can do things with technology that were not conceivable or economical not too long ago - and that creates potential scenarios that will have to be resolved over time - I don't believe they have been adequately addressed as of yet. Review my post about the 3 (or 4?) scenarios. I believe it's reasonably close to the "state of the law", keep in mind this area of law is not well defined, as the technologies simply haven't been around long enough for there to be a lot of precedent (read Pauls comments VERY carefully!) I'm fairly sure "incidental" capture, with Paul's caveats is defensable, and I am aware of one studio moving into adding video that seems to concurr, and is willing to put it in their terms when hiring subcontractors. Then again, they may be whistling in the dark. I believe that media shifting is a defensable concept and fairly soundly based in precedent, I believe Paul concurrs. BUT, until a case comes up that fits this VERY limited fact set, it's a theory. It relies to some extent on "sync rights" as currently defined not applying to a private, personal end use of the media in the same way as it would for a major studio using a song as part of a soundtrack for a major studio, wide distribution release. Would it hold in Court? No way of knowing, but the cost of finding out could be rather high. Your approach of buying as many copies as required shows a clear intent to compensate the IP holder (thereby mitigating any damages, again in theory, presuming your video doesn't otherwise harm the artist or their image), making prosecuting you a little harder when the media shifting defense kicks in. I can buy 5 copies of a CD I like for friends and give them to them as presents, and I didn't break any laws, "media shifting" is legal, and the major studios are even adding digital files for portable use right on some DVD's I've seen... so IN THEORY you've got an affirmative defense. It's not mental gymnastics, it's trying to find a viable approach that allows for reasonable use and compensation to the IP holder - it would be nice if such a system was in place, or there were contractual or legal precedent. Neither applies AFAIK, so the best I can say is proceed at your own informed risk. I don't think the risk is large, but when the RIAA attorneys started cracking grandmas knuckles... well, you have to decide your risk tolerance. Keep in mind that these sorts of mental excercises are exactly how law gets formed and changed (more typically by lawyers and Judges than laypeople, but we're a smart lot around here...). It's good that this thread has remained on a high intellectual level for once, let's keep it that way. The SAFE answer is to use royalty free or buyout or compose your own... or a friendly local musician... The "practical" answer I suspect many use is to take the approach you suggest and keep a rabbit's foot handy... and don't walk under ladders... or break any mirrors... and avoid black cats... PS- As for the genius who thought he was doing something cool in releasing the G'n'R tracks ON THE WEB... well, he sure got off easy... unless it was all part of a publicity stunt... sometimes things are not what they seem. I think his "infringement" got more press than the actual album release... leading to the question... if you infringe on a song no one even cares about, is it still infringement? <wink> PPS - the answer is yes, because the ARTIST cares... but they might let you use it for free or a reasonable compensation if you show you care!

July 15th, 2009, 06:42 AM	#80
Doug Bennett Major Player Join Date: Oct 2004 Location: NYC Posts: 260	The point in this case is not that the videographer broke some legal provision, the point is he behaved badly in attempting to gain competitive advantage by choosing to use copyrighted music without permission. Once he was caught the "everybody does it" bubble burst, guilt (in the moral sense) was undeniable. If the bride had said "this is my favorite piece of music please use it for the montage" and the videographer had credited the artist correctly, then arguably, the legal situation may have been the same. But the ethical implications would have been very different. Beware. A lot of the "wedding video is a crime" contingent are just wanting a smokescreen to sell elaborate music videos without regard for law or morals.

July 15th, 2009, 11:24 AM	#83
Jim Snow Trustee Join Date: Mar 2009 Location: Santa Clara, CA Posts: 1,104	J.J., I believe your were very fortunate that you were involved with the musician directly who in the end showed that he wanted to be reasonable even though he was obviously irritated at what you did. I suspect you would have had a much more difficult time if you were dealing with the attorney for the estate of a deceased musician. I imagine some of these attorneys would be heartless. They aren't paid to be understanding; they are paid to grub as much money for the estate as possible.

July 15th, 2009, 01:18 PM	#86
Kevin Zibart Regular Crew Join Date: May 2009 Location: Louisville, KY Posts: 30	Dance and cheer competitions are likely also breaking the law in a similar fashion. Not only are they playing licensed music to an audience without permission, but they often hire videographers who sell DVDs of the performances to the dancers, or even put clips of the performances online. Many also prohibit personal photography and videography, which is frustrating especially when none of the photos are of my child, or the video is SD and simply a static, wide-angle shot of the entire stage. I think the next time I'm told I can't video my own child's performance, I'll ask them about their music licensing... ;)