Shaun - can you do one thing for the board.

On Monday phone the RIAA in New York. Tell them you want to license music for a wedding video.

Why would I do that? Number one I live in Canada and any response the RIAA gave me would not represent my situation and number two, I have no interest in producing wedding videos. Instead, I will defer to what knowledgeable professionals like Paul and MY lawyer have said.

I wish or hope Canada comes up with a similar license fee as Australia, I know Djs through AVLA pay a one year license fee. Would love to pay a one year fee. WEVA should start a campaign of some sort, I am sure thousands of videogs from the US and Canada would love to pay that fee.

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.

Shaun - can you do one thing for the board.

On Monday phone the RIAA in New York. Tell them you want to license music for a wedding video. I can't remember the reply verbatim - but two points were made when I made a similar call a couple years back.

1. You don't need a license
2. Many top attorneys and judges, including Supreme Court Justices have commissioned wedding videos.

If you could reserve judgment until you've made the call that would be great. Once you get an answer do let us know if it's changed from the ones that have given me and many others over the years.

For those who don't want to make the call themselves but still require incontrovertible advice - why not check out what NPR's Intellectual Property attorneys and NY Times ethicist think of it: "Could a wedding dance turn into a copyright infringement if it's videotaped?" -

Is Videotaping a Wedding Dance Illegal? : NPR (http://www.npr.org/templates/story/story.php?storyId=5060669)

Including copyright music in a wedding video is neither illegal or immoral. If you have a problem with that view - why not phone NPR? I'm sure they would be really interested in your viewpoint, although in the interview they are pretty scathing about people who hand out bogus legal info on the net.

On the other hand setting a montage/highlight reel to a piece original music without crediting the author is illegal. Hoping to secure some commercial advantage from that is immoral.And when you call NPR or RIAA, be sure to ask them if they'll indemnify you if you are sued. And be sure and get it writing.

And what was that you said about handing out bogus legal info on the net? Does that include non-lawyers?

Paul,

I stand corrected. I feel for JJ in this case and have read various cases, like the 8 year old (or so) girl that got sued a few years back. I don't know that I agree with all your points, but if you're a lawyer that deals with this you no doubt know what you're talking about.

Your reply and post was really informative and brought me up to date regarding this issue. And yes, you are right..this has nothing to do with the majority of those of us that think lawyers ruined this country.. that was indeed an incorrect statement.. the majority seems to fall on the ridiculous lawsuits over injuries and such.. so I apologize if I offended.

So it sounds like most of you that understand this do ok even tho you have to severely limit the selection of music you can use in a video. I am really curious tho.. when you recording sections of a wedding that have DJ music in it..I am guessing you have to edit out the sound completely (unless of course you had permission to play the music..which I would assume is almost never going to happen).

How do ya'll present your music list that you can use in a video then? For that matter, when you're making the videos.. do you choose the music for it, or do you let (or offer) the bride/groom the option then present a list and explain the copyright issues (not nearly as much as Paul did of course) and tell them you'll look up their choices to see if they can be used via one of the royalty free or yearly license sites?For what it's worth, my personal opinion, NOT my legal advice, is that using the bride's legally-acquired CD as a soundtrack for a wedding video SHOULD be fair use. I say "should" because I think standard fair use analysis, i.e. it's transformative, doesn't hurt the market for the original, etc., could apply. However, here is why I think it won't be held fair use, at least today:

Fair use is an equitable doctrine, meaning that it is committed to the discretion of the judge. Copyright cases can only be tried in federal court and in federal court all the judges are appointed by the president. Currently, something on the order of 80% of the federal bench was appointed by Republican presidents, and not just Republican presidents, but, specifically, Reagan, Bush senior and Bush junior. As a result, we have a very conservative, pro-business federal judiciary. Federal appellate justices are also appointed and drawn from the ranks of the federal district courts. As I'm sure everyone is aware, the Supreme Court is staffed by Presidential appointees. The present Supreme Court, which many regard as "liberal," is, in reality, the most conservative court since Herbert Hoover. Remember, this is the Supreme Court that held that government exercise of eminent domain so that the property so condemned could be turned over to a private developer did NOT violate the 5th Amendment and that the "limited time" of the monopoly grant for copyright in the Constitution could be 100 years+. This is not a slam against Republicans or conservatives -- it is just a fact of federal litigation that all of us who practice in federal court are aware of.

For this reason, I find it highly unlikely that fair use would be applied in such a way as to disadvantage copyright owners who, generally, are large corporate entities and NOT authors, musicians or, for that matter, film makers and, in fact, that has been the apparent trend of the relatively few recent fair use cases. One of the underlying principles of fair use doctrine is that ameliorates the tension between the First Amendment and the Article I, Section 8 grant of an exclusive monopoly in copyright. Unfortunately, wedding videography has virtually no claim to core value speech -- it is commercial and, at least with respect to using protected music, it is completely unrelated to the free commerce of ideas.

Nonetheless, I have previously indicated that, to the extent I am able (and this is a big qualifier -- it depends on my two employers consenting), I would try to make myself available to defend, on a pro bono basis, any wedding videographer who is sued for using the bride's favorite CD as a sound track. I can't make promises but I really am with all of you -- it SHOULD be legal. However, I don't make the law, I only explain it and, right now, the law is pretty clear.

Nonetheless, I have previously indicated that, to the extent I am able (and this is a big qualifier -- it depends on my two employers consenting), I would try to make myself available to defend, on a pro bono basis, any wedding videographer who is sued for using the bride's favorite CD as a sound track.

props to you paul.

Nonetheless, I have previously indicated that, to the extent I am able (and this is a big qualifier -- it depends on my two employers consenting), I would try to make myself available to defend, on a pro bono basis, any wedding videographer who is sued for using the bride's favorite CD as a sound track.

That's it. I'm moving to LA. d;-)

This thread reminded me of an interview we were showed in a uni course where a high profile music producer was being questioned on how the hip-hip industry was dealing with copyright infrignement through sampling. The interviewer played a very short snippet of a song - one syllable of one word, or about 1/4 of a second - and asked him how much that sound was worth and what it would cost for each sampling of that sound in a new work.

The interviewee replied very seriously, without barely even blinking, that it was worth about $7.

Music copywright may seem unfair but it is the very same laws that protect our video's and films as well... so i guess it's a double edged sword.

I am lucky enough to be in Australia where we have the licensing fee - I just found out about it last week during a job interview with a wedding production company. I've never done wedding's before and one of the main concerns I raised with them was music copyright - I was very pleased to hear the licensing fee took care of this!

I am lucky enough to be in Australia where we have the licensing fee


Does this Australian licensing fee cover only Australian music, or does it provide international coverage as well? If it does cover American music, does the fee go through BMI and ASCAP? Just curious.

Does this Australian licensing fee cover only Australian music, or does it provide international coverage as well? If it does cover American music, does the fee go through BMI and ASCAP? Just curious.

I was wondering the same thing. Thanks Paul for your support. Appreciated much.

Paul -
Thanks for weighing in, I appreciate your "eminent domain" reference, I consider myself conservative and that particular decision offended me greatly. You are correct in your analysis that individual rights are being outweighed more often than not at the expense of "corporate" or big business "rights". Personally I find this repugnant to the rights of the individual to "life, liberty, and the pursuit of happiness". This is after all America, and "we the people" still have a voice.

I think a short analysis of the typical "wedding" situations would be helpful.

Situation #1, you're "rolling" and a song is being played. (this is the NPR example). You have no control over what's being played, and it's "incidental" - your intent is not to capture a recording of the song and reproduce it for profit, your intent is to capture the moment, whatever music is being played. Videotaping is not illegal, and you're not trying to profit from or co-opt the original work - any profit is derived from memorializing the event, not copying someone else's IP. The "end user"/viewer is not playing the video back to listen to the song, but rather to watch the video of the event.

Sitation #2, as Paul has graciously offered to defend, you utilize a track from a legally purchased CD (or online, since this is more common now) as a "soundtrack" for the strictly limited use of a few copies of the wedding for the bride/family. Search "carterphone" on DVi and the web for a good example of how this sort of use of technology is not likely to be illegal - I've argued before that you could play the CD while editing, remove the soundtrack, then tell the bride to play the edited video along with the CD and achieve the exact same result... the fact that technology allows you to put both tracks together for personal uses shouldn't create an illegal act... This gets touchier because the song at least in theory has a special meaning, but the end user has a license to play that song back in one medium, by extension that license "should" provide for it being played back in a "shifted" medium. I have CD's, I have the right to rip them to MP3 and play them back via some other device... the medium itself is just a "container" for the IP.

Situation #3, DANGER WILL ROBINSON!!! This is a "logical extension" of situation #2 - you or the bride are proud of the final "wedding video" (it's really more of a highlight set to music, and this is where you run into problems as you ARE using someone else's IP for a derivative work and are in theory crossing into "sync rights" - something which may become outdated/obsolete over time due to technological progress IMO).

Since you or the bride are so proud of it... "someone" posts to UToob or other "open" video sharing site, it goes viral for some odd reason and now you've exposed the "borrowed" IP to a huge audience, let's say the IP holder isn't too happy about your video or thinks it reduces the value of his "work", or most likely you have "gained" from his work without his permission to use it and "distribute" it. You are now in the middle of a poo-storm extrordinaire, and likely at great risk even if you "won", and I don't think even a "liberal" reading of ANY copy-rights ANYWHERE will provide you protection, nor should it, IMO. Until there is a licensing system devised to allow for online use, it's really just painting a gigantic red circle on your posterior to do this!!


It's this third scenario that JJ tripped over, and given the reach and scope of the web, it's a HUGE potential problem area - ripe for litigation, and liability. Hopefully an agreement to "cease and desist"/mea culpa maxima can be worked out, that's the first thing I'd seek. If not, maybe some reasonable compensation can be worked out, but since the IP holder is already "vocal" about how much he spends on his attorney, I wouldn't hold my breath. I've worked with reasonable artists, and UNreasonable artists, same goes for attorneys, we can all hope for JJ's sake he finds everyone reasonable...



Hopefully that wasn't overly long, and perhaps can serve as a foundation for the "copyright" primer Chris, Paul and a number of the rest of us have discussed? I think it covers the scenarios wedding/event shooters are likely to encounter, if not, please throw out any others.

Paul -
Thanks for weighing in, I appreciate your "eminent domain" reference, I consider myself conservative and that particular decision offended me greatly. You are correct in your analysis that individual rights are being outweighed more often than not at the expense of "corporate" or big business "rights". Personally I find this repugnant to the rights of the individual to "life, liberty, and the pursuit of happiness". This is after all America, and "we the people" still have a voice. I don't want to turn this into a political thread, so I'll just say that I disagree with nothing you've written above.

I think a short analysis of the typical "wedding" situations would be helpful.Me. too. ;)

Situation #1, you're "rolling" and a song is being played. (this is the NPR example). You have no control over what's being played, and it's "incidental" - your intent is not to capture a recording of the song and reproduce it for profit, your intent is to capture the moment, whatever music is being played. Videotaping is not illegal, and you're not trying to profit from or co-opt the original work - any profit is derived from memorializing the event, not copying someone else's IP. The "end user"/viewer is not playing the video back to listen to the song, but rather to watch the video of the event.I'll provide the legal answer, only. This is an area called "incidental reproduction." There is very, very little law on this -- I've only found a couple of published decisions. Looking at the situation literally, you are making an unauthorized copy of the music that is played -- it's therefore copyright infringement. The question is, does fair use apply? The answer is, possibly, unless you want me to provide a binding legal opinion, in which case the answer is, "no.' ;)

There is no bright line rule for incidental reproduction. However, the decisions seem to suggest the following:

1. If only a portion of the entire musical number is used, it is more likely than less likely to be considered fair use.
2. If the purpose of the incidental reproduction is reportorial, as opposed to commercial, it is more likely than less likely to be considered fair use.

So what does this mean to a wedding videographer? When you're shooting the couple's first dance, don't use the entire song and definitely don't use it as a sound track, e.g. using it as underscore for other sections of the video. I think a good argument can be made that wedding videos are reportorial -- after all, their function is to document the wedding. However, this is a very, very gray area at the moment. It's been a couple of years since I've looked at it but my recollection is that there were only a couple of district court, i.e. non-precedential, decisions that addressed incidental reproduction and none involved wedding or event videography.

Sitation #2, as Paul has graciously offered to defend, you utilize a track from a legally purchased CD (or online, since this is more common now) as a "soundtrack" for the strictly limited use of a few copies of the wedding for the bride/family. Search "carterphone" on DVi and the web for a good example of how this sort of use of technology is not likely to be illegal - I've argued before that you could play the CD while editing, remove the soundtrack, then tell the bride to play the edited video along with the CD and achieve the exact same result... the fact that technology allows you to put both tracks together for personal uses shouldn't create an illegal act... This gets touchier because the song at least in theory has a special meaning, but the end user has a license to play that song back in one medium, by extension that license "should" provide for it being played back in a "shifted" medium. I have CD's, I have the right to rip them to MP3 and play them back via some other device... the medium itself is just a "container" for the IP.Here's the problem with your analysis. When the bride plays the CD along with the video, no copy has been created, so no reserved right has been infringed. Though, in practical terms, it should not make a difference whether the music is on a CD or transfered to an audio track on the video, the legal difference is profound: one is not an unauthorized copy, the other is. As I've said, I really think this should come within fair use, but I'm not prepared to bet the farm on saying that it would.

Also, note that using the CD for a sound track MAY be fair use. Putting up a trailer that uses it on a website to sell the videographer's services almost certainly would not.

Situation #3, DANGER WILL ROBINSON!!! This is a "logical extension" of situation #2 - you or the bride are proud of the final "wedding video" (it's really more of a highlight set to music, and this is where you run into problems as you ARE using someone else's IP for a derivative work and are in theory crossing into "sync rights" - something which may become outdated/obsolete over time due to technological progress IMO).

Since you or the bride are so proud of it... "someone" posts to UToob or other "open" video sharing site, it goes viral for some odd reason and now you've exposed the "borrowed" IP to a huge audience, let's say the IP holder isn't too happy about your video or thinks it reduces the value of his "work", or most likely you have "gained" from his work without his permission to use it and "distribute" it. You are now in the middle of a poo-storm extrordinaire, and likely at great risk even if you "won", and I don't think even a "liberal" reading of ANY copy-rights ANYWHERE will provide you protection, nor should it, IMO. Until there is a licensing system devised to allow for online use, it's really just painting a gigantic red circle on your posterior to do this!!Yep -- I agree with this.

It's this third scenario that JJ tripped over, and given the reach and scope of the web, it's a HUGE potential problem area - ripe for litigation, and liability. Hopefully an agreement to "cease and desist"/mea culpa maxima can be worked out, that's the first thing I'd seek. If not, maybe some reasonable compensation can be worked out, but since the IP holder is already "vocal" about how much he spends on his attorney, I wouldn't hold my breath. I've worked with reasonable artists, and UNreasonable artists, same goes for attorneys, we can all hope for JJ's sake he finds everyone reasonable...Speaking practically, which is something lawyers rarely do, JJ's problem was getting caught. As I noted, using unlicensed music in this way is not fair use and, what made it even worse, notifying the copyright owner via twitter that you're infringing is . . . well . . . not a good idea.

The reason animals herd is for safety -- predators pick off the weakest members at the fringes. There are an awful lot of wedding videographers using commercial CDs and the odds are that, eventually, someone on the fringes of the herd is going to get picked off.

For now, my legal advice is this: use royalty-free music or obtain a license to use the bride's favorite CD. Also, incorporate yourself as a limited liability corporation, observe all of the corporate formalities, obtain CGL, preferably with an intellectual property rider, and don't use your house as collateral for an equipment loan.

Just a note on the LLC thing.. for those of us that run small businesses..I think you can form S-Corp.. its easier, cheaper and provides the same protections as LLC for small businesses.. I think? Paul I am guessing could answer this best.

So as a conclusion to my thread :-)
Here is what I got from the musician's assistant this morning (while I was shooting a wedding):
"Dear JJ:

Using someone's copyrighted work to promote your own work is a violation of copyright law. Synchronization and master licenses are required. It's similar to someone using your creative product for their own self-promotion and financial gain without credit or compensation being given to you.

We are happy to license compositions for projects such as yours, but on a case-by-case basis. So we need to clean up the current situation first. Here's what xxxx recommended we do:

In lieu of a license fee, we'd like you to make a donation to a charity that we do a lot of work with, yyyzzzzyyyzzz (www.yyyzzzyyyyzzz.org). A donation of $150 ($50 per composition) would be appropriate. It can be made through their website via PayPal or credit card. You make good for the unauthorized use of the compositions below (1492, Magnetic Angels, Howard Sees the Sky) and it's a tax write-off for you or your company because they are a 501(c)3 non-profit organization. Just mark your donation "For urgent rescues/xxxxxxx License."

When you receive your receipt, or the thank-you note from the org's director, forward that along to us and we'll issue a license retroactively which will allow you to keep those trailers up on your website.

Best regards,

Zach G for xxxxxxxx"

I am very happy how it turned out... very.. very happy..
Thank you everyone for the support and advice, especially, Paul Tauger with very detailed infos, and I am not going to make same mistake ever again...(sigh)...
Have a great weekend, everyone..

Best,

JJ

WOWWWW...... GOOD ON YA JJ!!!

seriously its like watching a thriller movie with a happy ending.

we can now all proceed our way out of the theatre with warm feelings that there are still very very nice cool people in the world.

The charity bit really touched my heart. The fact that this guy doesn't want a penny from JJ but instead he still want JJ to contribute something for his license.. is magic..

Wooohooooooo!!!

Santo

Thank you, Susanto
I was extremely relieved when my wife called me while I was shooting a wedding this morning and gave me the news.
Not only I am going to buy the license from him but also will give him credit in the beginning (briefly) for the trailers, cause he does make beautiful music.
Again... thank you all and Susanto, your works are very impressive and your creativity is extraordinary.
Have good night, ya'll.

jj

Full marks to the "injured party" for playing this INCREDIBLY fairly!

J.J.

Even-though I didn't post and get caught up in the "great debate" earlier. I've been following this thread for the very beginning. I'm happy to hear that everything turned out well for you.

Steve

So as a conclusion to my thread :-)
Here is what I got from the musician's assistant this morning (while I was shooting a wedding):
"Dear JJ:

Using someone's copyrighted work to promote your own work is a violation of copyright law. Synchronization and master licenses are required. It's similar to someone using your creative product for their own self-promotion and financial gain without credit or compensation being given to you.

We are happy to license compositions for projects such as yours, but on a case-by-case basis. So we need to clean up the current situation first. Here's what xxxx recommended we do:

In lieu of a license fee, we'd like you to make a donation to a charity that we do a lot of work with, yyyzzzzyyyzzz (www.yyyzzzyyyyzzz.org). A donation of $150 ($50 per composition) would be appropriate. It can be made through their website via PayPal or credit card. You make good for the unauthorized use of the compositions below (1492, Magnetic Angels, Howard Sees the Sky) and it's a tax write-off for you or your company because they are a 501(c)3 non-profit organization. Just mark your donation "For urgent rescues/xxxxxxx License."

When you receive your receipt, or the thank-you note from the org's director, forward that along to us and we'll issue a license retroactively which will allow you to keep those trailers up on your website.

Best regards,

Zach G for xxxxxxxx"

I am very happy how it turned out... very.. very happy..
Thank you everyone for the support and advice, especially, Paul Tauger with very detailed infos, and I am not going to make same mistake ever again...(sigh)...
Have a great weekend, everyone..

Best,

JJ
That's a terrific outcome! I'll bet you'll sleep better tonight. :)

That's awesome news, J.J., and it really shows that there's hope for a revised system of some sort. Very amiable of them to offer you this resolution!

JJ -
Sounds like a good reasonable artist, glad to hear the result, lessons learned, and nice to know there are still some good decent people out there.


Paul -
I agree this isn't the place for politics, better a place for common sense!

On situation #1, I concur with your analysis, the lack of precedent is always worrisome, but I think your qualifiers are good (use portions not the whole, and regard the work as a "private documentary"), I suspect that one major photo studio moving into the video area has reached the same conclusions, based upon their position I've seen.

Situation #2, I'm using the analogy of the Carterphone case that Chris posted a while back elsewhere on the forum. The logical combination of the technologies involved (i.e. media shifting from a legitimately purchased CD/MP3 to the audio track of a DVD) shouldn't result in infringement.

While you are making a "copy", you can't as a practical matter play the original simultaneously with the copy, and you have the right to play the 1's and 0's of the original, arguably regardless of the "container" (media) - it's like if I copy a CD to my MP3 player - I've made a copy for my use and enjoyment, and I have the right to media shift that "copy" to a media most convenient and condusive to my personal enjoyment.

The rapid changes in digital media are stretching the boundaries - thus my comment on the probable obsolecense of "sync rights" as a concept. "Multimedia" inherently starts to "mix up" which 1's and 0's are which. "Art" and "business" are at a messy intersection in the "digital revolution". The fact that one can do things on your destop that would have taken a multimillion $$$ studio even a few short years ago is cool, but it opens up a big can of worms.


And of course openly thumbing your nose at the requirements of being a good citizen, well, just not a good plan. And good advice about protecting yourself even if you "keep your nose clean"!! One run-in with unethical attorneys can ruin quite a few days, as I've personally experienced (and unfortunately that continues...).

I think I hear a collective sigh of relief from people around the world who've been following this thread.

it was more like a horror movie than a thriller - I'm just glad it's over and I'm out of the theatre and I was only watching!

JJ that is great news. What's even better is you can even post the videos on Facebook coz you have the license to do so.

Thanks Bruce Patterson for the link. I'll contact them about licensing fees this Monday.

The logical combination of the technologies involved (i.e. media shifting from a legitimately purchased CD/MP3 to the audio track of a DVD) shouldn't result in infringement.


Dave, the only issue I see with this analogy is that is would require that the end user of the DVD retains it for themselves and DOESN'T make 10 copies for the relatives. To continue your analogy (which is a GOOD one IMHO), it would be just as illegal to send copies of the DVD to Aunt Ruth and her brood as it would be to purchase music CDs, burn copies and give them away as door prizes at your next social event - you've only bought the rights for your own personal copy (or copies, if you've chosen to archive the media OR encode for your MP3 player).

Shaun -
Your example is analogous to situation #3 -"someone" decides to copy/distribute/put online, and yes it is a risk. Technology once again opens doors to potential infringement, and it becomes incumbent on the owner/licensee to act appropriately.

Ever since it became possible to economically make a "copy" (tape, CD, Xerox, VCR, camera), the potential for "illegal" copies became a reality. BUT the purpose and capabilities of such devices (and the legal precedent) also allows for LEGAL uses. To borrow an analogy, "DVD burners don't infringe, people do..."

The cat's out of the bag as it were, it's possible to make copies and media shift, that's not going to change anytime soon. That's why I think we all struggle with what is legal, moral and ethical when something is POSSIBLE (and quite easy), but unclear as to what "the right thing" is. Common sense says once the 1's and 0's are purchased, personal use is allowed, including media shifting and copies. BUT...

That DOESN'T include copies for all your friends and relatives (though LENDING out your copy for them to listen to while you aren't isn't illegal... so there's some grey area here), or public posting, as that deprives the IP holder of compensation for the multiple uses. On the flip side, if you don't "share" a cool new tune, picture, video or whatever with your friends, the artists loses the benefit of "word of mouth", which inhibits THEIR ultimate success.

Much like software licenses which acknowledge that you may use the software on multiple machines within reason, there needs to be a defining standard allowing for "reasonable" use. I don't run a bunch of copies of "Word" simultaneously, but as my license allows, I have several installations for convenience. I can create documents for other people with that software too, even if they don't own "Word". And I don't have to pay every time I "use" the program... or pay on a sliding scale depending on whether I'm writing a note to myself or a book I intend to publish and sell a bazillion copies of. I've included those analogies to address the usual responses when "Copyright" comes up here. The analogy isn't perfect, obviously... but when you license something that inherently has multiple potential end uses (in the case of a music track, the buyer can listen at home, in the car, on an MP3 player, on a CD, or for the sake of argument on a DVD of their personal event), you need to acknowledge that those uses are foreseeable and reasonable. IMO the current "rights" system has a fundamental weakness in that it comes from a "phonographic reproduction" era and hasn't kept pace with the digital revolution.


Put on the IP holder shoes:
If you charge for DVD's, you most likely don't want a client purchasing one and making copies. I think a recent thread was mixed on this, but I personally don't want a disc out there that I didn't print (no "sharpie" copies please, except for the ones I clearly marked "demo" <wink>), and test. QC and all that. I'm not going to sue a client if they make a copy, but I'd rather make however many discs they need and keep an archival copy if they ever need more.

I think it probably would be a good idea to explain to the client that if they make copies or post online without authorization they are infringing (your work product as well as any media tracks).


AND... I think we may have stumbled across...

Situation #4, thanks to "web 2.0" - that would be if "someone" posts a "private" video (password protected, or only available to "authorized" "friends") . You've definitely opened the door to multiple viewers/users, yet you've restricted it to people who might watch it in your home, but due to distance or whatever would prefer to view on the web... it's "private" viewing, but if they can download the file and save a copy, you created a situation where infringement was easy. I think this opens the debate to the difference between "sharing", and allowing a copy to be made? And a slippery slope back to Situation #3, if it's "shared", but no copy can be made...

Oh the joys of the digital revolution...

Blogger sentenced for leaking G N'R album - Yahoo! News (http://news.yahoo.com/s/ap/20090714/ap_en_mu/us_blogger_arrested)

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?

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.

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.

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!

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.

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.

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

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...!")

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.

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?

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) (http://www.youtube.com/watch?v=kGUnrD_CluU&eurl=)

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... ;)

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...

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>!

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)

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

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?

Yes, no and maybe.

Yes, because you don't have the rights to 'sync' the music with video.

No, because it's perfectly legal for you to purchase music and give it away (provided you aren't keeping copies for yourself).

Maybe, because if you're making a copy of the music, even if you're destroying the original, it could be considered illegal simply because you're making a copy. It's splitting hairs at that point, though.

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



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,No, no, a thousand times no!

17 U.S.C. § 106 Exclusive rights in copyrighted works

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

Copyright law is most definitely NOT limited to 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.Oy. There's so much wrong with this. Where to begin? ;)

First, buying copies does NOT give you any right to use the underlying work for any purpose whatsoever. All you get are rights in the physical copies, and those rights are limited to what is provided by license and/or rights that are not reserved to the copyright owner in Section 106, above. First Sale Doctrine says that you can give your legally-acquired copy away, you can rent it, you can loan it, you can sell it, or you can destory it. You have absolutely no right to either copy it, prepare derivative works or distribute the derivative works. These are rights that exclusively reserved to the copyright owner.

Second, "media shifting" applies to Fair Use analysis. "Media shifting," per se, is not authorized at law, except with respect to the very limited circumstances identified in the Audio Home Recording Act, 17 U.S.C. § 1008. For point of reference, here it is:

No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.

As you see it does not remotely address commercial wedding videography.

Fair Use is codified at 17 U.S.C. § 107. It provides four non-dispositive factors that are considered in determining whether a given use is a fair use. I've discussed fair use before, but the important thing you have to know is this: fair use is a [b]defense[b] to copyright infringement. This means that whether a given use is a fair use will be determined in the context of a trial for copyright infringement. Now, there are certain uses in which it is settled law that use in a specific context is fair use. THIS ISN'T ONE OF THEM. To my knowledge, wedding video usage has never been litigated. Now, my personal view (NOT my legal opinion) is that wedding video use SHOULD be fair use. However, until someone gets sued, the case is litigated and then appealed and the Circuit Court of Appeal finds it to be fair use and THEN at least a couple of other Circuit Courts of Appeal make the same finding in other cases, it is not settled law.

So, I hope you have the $300-400,000 it costs to defend a copyright infringement if you want to go down this road (or, alternatively, I hope my employers consent to my pro bono representation of you in this matter AND you have the cash to cover non-fee related costs).

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)...Consider me to have chimed. ;)

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...!")I never give legal advice here. Well, that's not true -- I have on very, very rare occasion done so and, usually, it's along the lines of, "Here's my legal advice: consult a competent lawyer immediately and stop talking about what happened on internet websites." I'm usually pretty comfortable with that. ;)

Fair use is an equitable doctrine. As such its application cannot be limited by legislation. Attempts by Congress to codify fair use are completely illegitimate and are resisted aggressively by the judiciary.

to those with a legalistic frame of mind: US Supreme Court 1994 - majority opinion - obiter dicta 2 Live vs Roy Orbison (Pretty Woman)

FWIW - by the time the decision came down all the albums were recalled and the offending track had been removed at enormous expense, because even their own attorneys were advising 2LC that the case was hopeless.

Fair use is an equitable doctrine. As such its application cannot be limited by legislation. Attempts by Congress to codify fair use are completely illegitimate and are resisted aggressively by the judiciary.Sorry, but that's absolutely incorrect. Fair Use remains an equitable doctrine because the intent of Congress in codifying it was not to supplant it but to clarify it. Congress is completely within its powers under the Commerce Clause, as well as the Article I, Section 8 authorization for copyright, to address copyright in any way in which it chooses -- equitable doctrines are most certainly not "out of bounds."

So what you're saying is... I couldn't legally do that? ;)

Thanks for chiming in. Just thought I would ask. Looks like I'll be sticking with royalty free stuff (I have no desire to be the industry guinea pig...). And I appreciate the *very* thorough answer.

I've learned more in this thread than I did in all of high school and college regarding copyright, infringement, and just about most everything else.

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)

Sad, and oh so true... Right and wrong as most of us understand it disappear at the courtroom door, and as Paul points out, access to the Courts, while originally intended to be open to all, is a lofty thing financially - and the deeper pockets have a distinct advantage...


Paul -
A couple thoughts - while the copyright holder retains all rights, and is really only licensing the use of the IP, I believe it's been upheld that a legitimate purchaser MAY copy (for backup purposes at the least) or shift the media container of that IP for non-commercial personal use, without it being an infringement. The only flaw I see here is in "sync" of the IP with another work. It's the re-combination of the audio track with the images in a "derivative work" that in theory crosses the line, despite it being legal to play the audio while playing the video on two separate devices (mechanical sync if you will).

The one phrase that I see sticking out is "noncommercial use by a consumer of such a device or medium for making digital musical recordings" - and this raises the problematic question of "if the consumer can do it for themselves, at what point does it become illegal for someone to do it for them as (part of) a service"... I know the Kinko's case puts a kink in that line of reasoning, but the Carterphone example to me pushes it the other way...

I guess one could always mix the video to the audio, deliver a mixdown to the customer with basic instructions to use iMovie or Movie maker to combine with their choice of music - that wouldn't be illegal...

I guess one could always mix the video to the audio, deliver a mixdown to the customer with basic instructions to use iMovie or Movie maker to combine with their choice of music - that wouldn't be illegal...

True .. but good luck selling that to brides. d;-)

I've learned more in this thread than I did in all of high school and college regarding copyright, infringement, and just about most everything else.Glad to hear it. The final will be next week. ;)

Paul -
A couple thoughts - while the copyright holder retains all rights, and is really only licensing the use of the IP, I believe it's been upheld that a legitimate purchaser MAY copy (for backup purposes at the least) or shift the media container of that IP for non-commercial personal use, without it being an infringement.That's not correct, at least as far as I know. 17 U.S.C. § 117 provides for making backups of computer programs. As I've already mentioned, the AHRA prohibits infringement actions for copying audio for personal use. There are other provisions that allow libraries to make archival copies. There is no statutory authorization for making back-ups or for media-shifting. There have been cases that have found media shifting, e.g. CD to mp3, fair use.

The only flaw I see here is in "sync" of the IP with another work.Not exactly. Combining a pre-recorded audio track with a visual work results in a derivative work. There's no express provision for a "sync right" in the statute. It is the right to prepare derivative works that is implicated.

It's the re-combination of the audio track with the images in a "derivative work" that in theory crosses the line, despite it being legal to play the audio while playing the video on two separate devices (mechanical sync if you will). That's right.

The one phrase that I see sticking out is "noncommercial use by a consumer of such a device or medium for making digital musical recordings" - and this raises the problematic question of "if the consumer can do it for themselves, at what point does it become illegal for someone to do it for them as (part of) a service"... I know the Kinko's case puts a kink in that line of reasoning, but the Carterphone example to me pushes it the other way... What makes you think the consumer can do it themselves? The AHRA applies to copies of audio recordings, not to preparation of derivative works.

I guess one could always mix the video to the audio, deliver a mixdown to the customer with basic instructions to use iMovie or Movie maker to combine with their choice of music - that wouldn't be illegal...It might be contributory infringement.