Copywritten Song performed Live in Documentary

[Dustin Whitaker]

Im shooting a documentary on various cultural aspects of my city. One is a ballet company who is performing a dance to Pink Floyd's Dark Side of the Moon. The music will be performed live by a cover band. I am still doing research but thought I'd come here to see if anyone can help me with the legal process to include the live performance of Pink Floyd's music in the documentary. My budget is my bank account unless I can gather a grant for finishing this documentary.

Specifically, I am hoping to use "The Great Gig in the Sky" and "Brain Damage"

I wanted to get as much info before going to the company with questions on their licencing powers since I'm sure they're paying something for the use.

Thanks.

[Adam Gold]

Couple of very active current threads on this issue. Here's one:

http://www.dvinfo.net/forum/wedding-...licensing.html

[Chris Luker]

You've got to get the sync rights from the original copyright owners (Pink Floyd probably) to be able to sync it with video. Even if it's a remake of the songs.

[Alan Yu]

One exception to proper music licensing is the notion of incidental capture within the fair use doctrine.

It doesn't seem too applicable in your case since you're very clearly choosing what to film and what not to film, but anyway incidental capture is the (now much more accepted than it used to be) recognition that if you're filming your subjects and a piece of copyrighted material somehow sneaks its way into the scene unexpectedly, as long as the scene is important to the film, you don't have to edit around it.

Let's say (similar to a situation we recently had with the doc we're shooting), in the middle of an important scene one of the people you're filming suddenly and without warning breaks into song, and that song is still under copyright. To edit around that moment (which shows something important about the character) would be to inaccurately portray the situation, and thus this exception is becoming more accepted. For more info on this, see the American University's best fair use practices for documentary filmmakers document.

[Don Litten]

Thank you Alan!
This has been an ongoing problem for me especially when filming in areas playing music that gets caught in a few seconds of a shot.

[Christopher Edmonds]

Originally Posted by Chris Luker

You've got to get the sync rights from the original copyright owners (Pink Floyd probably) to be able to sync it with video. Even if it's a remake of the songs.

In this case, you would need to seek a synchronization license from whoever owns or controls the copyright in the composition in question, which is usually a music publisher and not a band or artist.

The ASCAP and BMI databases are a great resource for this:

ASCAP ACE - Search Results

[Steve House]

A ballet peformance, as with other musical theatre, goes beyond just the sync rights to the music. You also need to be concerned with the so-called Grand Rights to both the music and the choreography (and perhaps even the costumes and sets). Does the ballet company even have the right to use the song in their peroformance? Such uses go beyond simple public performance rights cleared through ASCAP or BMI.

[Arnie Schlissel]

This is when it pays to hire a music supervisor, you're really about to dive into a quagmire of musical rights.

"Dark Side of the Moon" is one of the best selling albums of all time. If you think that Roger Waters doesn't have a lawyer on retainer just to keep track of those rights, you need to open up the windows and take a breath of fresh air from the real world.

Also, I'd be quite surprised to learn that both the ballet company & the cover band have secured the rights to use the music in advance. They may not be aware of their exposure to a lawsuit, but they would have to work out agreements on their own to secure rights to use and perform the music, then you will have to get released from them allowing you to use their performances.

Good luck!

[Steve House]

Originally Posted by Arnie Schlissel

...Also, I'd be quite surprised to learn that both the ballet company & the cover band have secured the rights to use the music in advance. They may not be aware of their exposure to a lawsuit, but they would have to work out agreements on their own to secure rights to use and perform the music, then you will have to get released from them allowing you to use their performances.

Good luck!

It's interesting and comes as a surprise to a lot of people, I think, that a cover band who performs the song as a piece of music in concert or in a bar simply pays (or rather, the venue pays) the normal performance royalty through their blanket ASCAP or whoever license and there's no other complications, but to use the same song, even performed by the same band, as a piece within a musical theatrical production or as the music for a ballet or other on-stage dance performance requires a whole separate set of rights that have to be negotiated directly with the music's publisher. The difference is the music is being incorporated as a material part of a separately copyrightable work. A Google on "Grand Rights" turns up some fascinating information.