Music rights question...again
 

Hi...I read the many responses to a thread about music in wedding videos, etc. Here's a related question. What if I simply want to put images or video on DVD and send it just to my folks or a few friends. No money involved, I own the CD, tape or whatever (purchased copies from the usual retail sources), no money being made off anything. Just fun stuff of the grandbaby, sharing photos with friends from story time at a local coffee shop, etc. I would like to put some current popular music on the DVD. Is that OK as far as copyright goes? If there is a limit as to how much of a song I can use...does anyone know what that limit is? Say for example could I use 3 out of 5 minutes from an Enya song? Thanks so much for your help. This site is awesome!!!

Wrong, wrong, wrong.

"I didn't make a profit," is _not_ a defense to copyright infringement liability.

The AHRA makes copying of music for personal use non-prosecutable. However, it is entirely unclear (particularly from the legislative history) whether or not it applies to synching music to video.

The odds of being caught may be small and, to be perfectly honest, I do it myself with my own videos. However, to say that it is, "no problem at all" is, to put it charitably, displays a rather stunning lack of knowledge of copyright law.

The basic, bottom line answer is that it isn't legal. Will anyone prosecute? Doubtful. However, I've been told it's illegal to make tapes and CDs to play in your home and car! But we all do it. You just have to let your conscience be your guide!

Just a related story, Roze - a restaurant owner in Charlotte (with German cuisine) used his own stereo, his own "polka(?)" records to play through his restaurant and an ASCAP rep was eating there, asked about releases/rights to the songs the owner was using and was eventually fined $5000! I'm sure the chances of him getting caught were minimal too!

I'm not saying to do it or not, just giving an opinion of what I think I know!

more pleeeeezzeee
 

Hey Paul & Mark...thanks for opinions. Yeah I definitely did not feel secure with the first response from Alex. He probably meant well but geeze...just seemed "too easy" ya know. My hubby is a pro-geek programmer. In their world depending on licensing law you are permitted for example to create a "back up CD" on most programs. But that's all. Programmers are pretty regularly copied by well meaning folks who truly do not understand authorship and by ...well...the usual litany(sp?) of 'cyber crooks' who know all too well how to copy what should not be copied. There are few exceptions I've found.

I was a copyright law teacher's assistant in Texas and seem to remember something about it is OK to make for example a dupe CD if you have already purchased a CD, paid for it legitimately and make a copy ONLY for yourself or for use in your own home, car, etc. So if I bought a copy of Nora Jone's latest CD...kept it in one car...made a copy CD for our other car and the ONLY place it lived was there or in the house (so we would always have a CD in each car and could take one in the house if wanted) ...I thought that this kind of dupe was OK. Is that a mistake? Would sure like to hear more discussion on this topic and more details. I know whenever we discuss production of any film in school or in the field the BIG sticking point is always music. More so than getting the right to reproduce a person's image.

There is an AWESOME doc called "High Lonesome" about Bluegrass music and the Blue Ridge area. Talked with the producer after a showing during a doc fest. WOW she had to go through sooooo much more work on the music than on any other facet of production. OK...give more info please! Y'all are terrific.

P.S. What is y'alls opinion on that Polka music story? Seems like ASCAP maybe went a little nuts. Is that common? Kind of militant regulations in a way it seems. The problem I really have is not with abiding by the rules...it's who truly gets to benefit from such stringent reg's. Do the artists really see any profit from this or is it mostly record companies, labels, producers, etc.? Just curious....

p.p.s. I'm the worlds' WORST speller. Please forgive errors.

I certainly am not the "end all " on this, as most of what I've said was given to me by friends, family and other filmmakers. No one was involved in copyright law!

However I was told the reason ASCAP came down on the restaurant owner was because he was using someone's music, without paying the royalties to better his establishment - ie: giving it an atmosphere that it normally would not have had.

And somewhere, there is a regulatin about using the radio for your business - as an asset, but I'm not sure what it is!

There has to be someone out there that is more knowledgeable than I am on this, as my opinion has been more heresay than fact, but it is what I go by until I hear/know anything better!

Sorry, but that's not the bottom line answer. The AHRA precludes infringement litigation for making copies of music for personal use. It is far from a settled question whether it extends to syncing CDs to home videos. I'm not aware of anything in the legislative history which indicates that Congress contemplated this kind of application, and I'm certainly not aware of the statute being tested in this context in the courts. The basic, bottom line answer is, "nobody knows."
That's a very different question than, "Is it legal?" Almost certainly no one would prosecute and, in fact, I do this for my own home videos.
You've been told wrong. This comes within the AHRA
Which is one of the reasons the AHRA was passed.

Well, no, it's not a mistake. As I mentioned in another post, the AHRA permits (or, more accurately, precludes prosecution) for copying music for personal use.

The restaurant owner infringed the public performance right by playing the radio/CD/tape so that it could be heard by his patrons. It had nothing to do with atmosphere. As I recall, there is some rule regarding the number of speakers -- exceed it and it becomes a public performance, stay under it and it's just a radio playing in the background.

I have to ask, What about the bar with ESPN, superbowl or NASCAR showing. What about the band at the local watering hole, what about the piped in music by telephone line into restaurants? The episode with the restaurant owner seems a little hard to believe, and please I am not disputing that it happened just that if you look at music and it's public display everyone is infringing on copyright. Has anyone ever given thought to an alternative that could be lucrative to the music industry, say a 25 dollar per song fee (no broadcast rights) with a non removable sticker that's placed on the end product. A 25 dollar fee is easily tucked into the cost of a wedding video or professional work. If people are doing it anyway why not make money. Purchase the songs on a CD, each purchased with a s/n thats recorded and the non-removable sticker placed on the DVD VHS or end product. Surely a lot of Sales would be generated.

I know a similar story... in college I worked part-time at a funky outdoor sports/hippie-folk cultural items store. They played the radio every day throughout the store...usually the local college radio station. One day an ASCAP came in and did his tough guy spiel. But I think they got around paying ASCAP a dime by stopping playing the radio and by starting to sell folk/new age music CDs and playing them in store "to advertise the product."

The thing is, the local college radio station played a lot of talented unknown local bands and musicians...and all the employees were into the eclectic playlist on the station. So, we paid attention to the name of the band and the song. You'd be surprised how many times customers came up to us asking "Who is this playing?" We'd tell them, and then we'd recommend a record store on the same block.

After we switched to the in-store elevator music...no more questions from customers, and no more recommendations by us to go pick up a CD and support a local group. So, the bottom line is that ASCAP, that self-professed defender of the musician, cut potential sales of lesser known artists on a college station for two reasons: (1) to make sure that not a single musical note is played in public without lining the record company executives wallets, and (2) ensuring as a byproduct that only the major acts get air time (thus lining the record company executives wallets).

Paul - thanks for the info and clearing up my 'heresays'! Very informative. If you don't mind, please tell me what the AHRA stands for?

Thanks.

AHRA American Home Recording Act.

As an artist myself, and someone married to an IP attorney... it's interesting to hear people complain about ASCAP and using the excuse "People do it all the time"

Yup, people do. ANd people SPEED all the time... the police only stop the fastest, and as you go by them, writing the tickets, you tend to slow down.

Is the music industry screwing the artist out of their fair share by taking such a HUGE cut? Sure they are...

Are people screwing the artists out of their fare share when they copy or play music without paying ANY royalty?

Sure they are.

As someone who copyrights his work, and faces the risk of having it stolen... I am glad for the laws as they exist. At least there's some recourse to compensation. As to the studios ripping off artists... "The times, they are a changing."

Thanks Richard. It's funny, but until I became interested in theatre and filmmaking two or three years ago, I probably would not have given royalties and the like another thought.

But I am also a strong supporter of the rights and laws of the artists and will not use anyone's music. I have an extensive royalty free library, have had musicians score for my short and have several acid-loops at my disposal.

I only wish I was talented enough to write my own music (just a crappy guitar player!).

Thanks for the answer.

I don't know about sports bars. I suspect there's some fair use rationale there. If you read Sony v. Universal, you'll see that there was some consideration given to advertisers, i.e. time-shifting benefited, rather than hurt, them.

ASCAP/BMI requires license fees in each of these situations. These fees are generally paid by the watering hole/restaurant.

Not really. Next time you're in a nice restaurant with music playing in the background, ask the manager if he pays a license fee for it. The answer will always be, "Yes."


I have previously spoken to BMI's in-house counsel about doing exactly this. Neither he, nor BMI, were interested.

Audio Home Recording Act. It's an amendment to the Copyright Act.

Paul, thanks very much for all of the useful information. It's been very informative and interesting!

Bottom line Roze, don't sweat it. What you suggest is not specifically illegal. (Granted, it is not specifically legal either.)

The intent of Congress in the AHRA , from the Congressional record, was:

Yes, it doesn't specifically include music applied to video for private use. There is case law that suggests that "format shifting" is covered by fair use. (RIAA vs Diamond Multimedia). In general using short clips for personal use has some coverage under "fair use".

http://www.eff.org/cafe/drmgame/doc105.html#FAIRUSE


And the real reason not to worry is that no one would ever sue you. The civil and criminal penalties are either too low or are not applicable. It just isn't worth their time.

I really need to put together a FAQ, or something. ;)

Fair use is an equitable doctrine, codified in the Copyright Statute. The four factors listed in the statute are non-dispositive, meaning simply trying to analyze a specific use by applying the factors will _not_ result in an accurate prediction as to whether it constitutes a fair use as a matter of law. Fair use law is _judge-made_ law and fact specific. The former means that the only way to get a sense for how a court may rule is to look at the cases which decided similar fact patterns; analyzing a situation solely in the context of the statute is pointless. The latter means that, even given relatively similar fact patterns, the result may still be different due to other factors which are not in the statute and have not been previously addressed by the courts.

Using a CD as a soundtrack for a video is very different from what was contemplated by the AHRA. As I recall the format-shifting cases, addressed only protected expression that was translated to other formats and NOT situations in which it was mixed with other expression to result in an entirely new derivative work.

As for liability for copyright infringement, damages are measured in two ways -- the plaintiff may elect actual damages, i.e. lost sales or infringer's profits less cost of sales, OR, statutory damages which require no proof of loss. Statutory damages for non-intentional infringement are provided in 17 U.S.C. Sec. 504(c)(1), and specified as, "a sum not less than $750 or more than $30,000." Statutory damages for intentional infringement are specified in 17 U.S.C. Sec. 504(c)(2) as a sum of not more than $150,000.

As for whether someone would be sued or not, I've said this many times: I have brought actions on behalf of my clients against relatively minor infringers where there was NO hope of recovery. Each time, my client elected to pursue the suit for the sound business reason of making an example of the infringer so as to discourage what we saw as a potential for pervasive infringements. I recently won a $3.4 million judgment against a relatively small infringer (this was a trademark action) which, I have no doubt, will precipitate a bankruptcy filing on the defendant's part.

Obviously it's a personal choice whether or not to risk this kind of liability and, as I've said, I myself use commercial CDs to provide soundtracks for my personal, friends-and-family videos. However, before anyone makes the decision to do this, it is important that they have the FACTS.

My personal belief is that using commercial CDs to provide soundtracks for _true_ "home movies" probably comes within both the AHRA and fair use. However, even though I'm an intellectual property lawyer, my personal belief doesn't mean much until either Congress or the courts clarify this issue.

OK, Paul, you have just implied that putting copyright music on home videos could result in millions of dollars of liability.

I presume that you were in fact referring to the previous paragraph where you quote, incompletely, the liabilities under 17 U.S.C. Sec. 504(c)(1) and not to your $3.4 million trademark action which has absolutely nothing to do with the discussion at hand. (This is my presumption even if that is not the way if reads. The juxtaposition of the phrase " risk this kind of liability" directly after the reference to a multimillion dollar judgement strikes me as less than completely responsible.)

You did snip off the language following the statuatory damages, which is "as the court considers just." It is difficult to believe that putting a snip of Enya behind a home video would rate more than the minimum, even if by some quirk of poor juris prudence the home video was found to not be covered by the AHRA and/or fair use. You yourself admit that you think that home movies probably fall under AHRA and fair use. Indeed the statute allows the court to reduce the statutory damages to a sum of not less than $200 if the infringer "was not aware and had no reason to believe that his or her acts constituted an infringement of copyright."

Before you point out that the court could disagree and assign the maximum, I will concede the point. I will also suggest that there is a non-zero chance of all concerned being hit by a bus crossing the street to the court house. Nothing is certain though a degree of reasonableness can often be at least hoped for.

My point was and is that the likelihood that even the thuggish RIAA would be interested in suing for a likely maximum payoff of less than a thousand dollars, especially when the legality itself is not clear. Their downside risk would be a precident that yes indeed the AHRA does apply to home video, an incremental loss but a loss for the record industry nevertheless.

This also completely ignores the question of how if a "home movie" is indeed made for private use only, that the RIAA enforcers would ever get their hands on it in the first place, short of breaking and entering, a crime whose penalties are even higher that copyright infringement.

It now appears that Napster users will be are far greater risk that home video editors.

Just now I watched a news report on WFTV channel 9 Orlando about the music industry intending to file hundreds of lawsuits.

http://www.wftv.com/technology/2293526/detail.html

POSTED: 3:09 p.m. EDT June 25, 2003

WASHINGTON -- If you're downloading music off the Net, the music industry says you should be prepared to be sued.

The Recording Industry Association of America has announced plans to sue hundreds of individual computer users who illegally share music files online. The announcement came after a federal appeals court ruled that Internet service providers must identify subscribers suspected of illegally sharing music and movie files.

The recording industry said it will start to search file-sharing networks for users who have large collections of MP3 files, and that hundreds of lawsuits will be filed in the next eight to 10 weeks.

The head of the industry group said Internet downloaders will have to weigh the real risk of "facing the music." But officials declined to say just how many downloaded songs would put a consumer at risk.

Critics say the music industry has declared war on consumers. The Electronic Frontier Foundation says the lawsuit plan shows that the industry has lost touch with reality.

Nothing of the sort. In summary:

1. Putting copyright music on home movies may or may not come within either the ARHA and/or fair use.

2. Liability for copyright infringment is extensive, even where there are no damages.

On the contrary, that judgement has everything to do with the discussion at hand. My client pursued a small-time infringer, with little expectation of recovery, and willingly spent well into 6 figures to do so. The assumption that small-time infringement is not prosecuted is simply wrong.

Right. But I'm not prepared to offer that as a legal opinion that someone else should rely on. You had said this:

"And the real reason not to worry is that no one would ever sue you. The civil and criminal penalties are either too low or are not applicable. It just isn't worth their time."

Sorry, but that's simply wrong, both with respect to plaintiff's motivations to sue and with respect to the potential penalties for infringement.

Sure, but this misses the point. _IF_ someone should sue (and RIAA isn't the only potential plaintiff with standing), the cost of litigation alone, not to mention the potential for liability, is more than most people could afford. As I've said, I, myself, use commercial CD music on my "home movie" soundtracks. I still will not advise anyone that it's okay to do so.

Which comes down to, "It doesn't matter because I won't get caught." That has nothing to do with the question of _law_, i.e. is it infringement of copyright to use music from commercial CDs on home movies.

Fine. Good lawyering, (if that is the sort of lawyering you like. ) The topic being discussed is a grey area which you suggest will probably be found not to be an infringement of copyright laws. To raise multi-million dollar settlements, in any context, when they are not supported by the statues being discussed strikes me as scare-mongering. Obviously we will disagree on this point. No doubt we will also disagree on the definition of "extensive."

Nonsense. This is about acting reasonably in an area where the law has broken down or hasn't been defined. Nothing more or less.

By the way, in one post you say that using copyrighted music in home movies is "probably" OK under AHRA and fair use and now you unequivocally state that it is a copyright infringement. Can't have it both ways.

Rick and Paul - I do find these posts fascinating, and I'm sure every word that you have written makes perfect sense to you two, but to a poor, ignorant filmmaker like me - I'm only understanding every other word!

What I can make out from both of you is that it's 'ok' to buy CDs and make copies for personal use. You can probably use those CDs to add to your home movies, but it is technically a copyright infringement. Chances are you will not get caught, but if you do, the litigation costs alone could be astronomical.

Therefore, you just need to make your own decisions on whether to do that or not.

Is that a quick laymen's perspective?

Also, here is another post from EXCITE news on the RIAA lawsuits against music sharers:

http://apnews.excite.com/article/20030626/D7RT3GDG0.html

I haven't done that since Napster shut down!

I've suggested absolutely nothing of the sort. To make the determination depends, among other things, on which judge a case is tried to (and which president nominated him), what Congress does about the DMCA (which, on its face, conflicts with the AHRA), and which circuit the case is tried in. If I were a sitting federal judge, I'd be inclined to find this kind of copying to be both fair use and within the AHRA. However, I'm not a judge, and it would be completely irresponsible of me, or anyone else, to tell someone, "sure, go ahead and do it -- nothing will happen."

The law is defined: Unauthorized copying is illegal. Period.

Fair use is a _defense_ to copyright infringement, i.e. but for the availability of the defense, the act in question constitutes illegal copying. The AHRA precludes liability for copying music for personal use -- it does not legalize it.

Pretty much on the nose. ;)

I think the real bottom line here guys is - does anyone know someone that got fined using music on a wedding video?

I don't think so.

And why not?

because they don't want to waist time with you, with your emails, calling you back, your little business and specially your video.


case closed.

Copyright infringement results in liability either for actual damages or statutory damages, at the plaintiff's option. Statutory damages, which require no proof of actual damages, can be as much as $150,000 per infringement, i.e. per song used. It is completely wrong to say there is no legal liability in this context. If your "lawyer colleague" said so, then she needs to educate herself about copyright law.

Don't assume that, because you're a relatively small player, you won't get sued. All it takes is a copyright owner who wishes to make an example of someone (look at what the RIAA is doing right now). I've sued relatively small players (albeit in the trademark context) in the past because my client wanted to send a strong message to other potential infringers.

Intellectual property litigation has _nothing_ to do with emails and telephone calls from the infringer, and everything to do with the willingness of a plaintiff to invest in the protection of its intellectual property assets, i.e. my clients don't use law suits as a profit center, but as a cost of doing business to protect their copyrights and trademarks -- they expect to lose money on the suit.

The risk of getting sued for using protected music in a wedding video is probably quite small. However, whether or not someone wishes to undertake the risk is a decision that someone should make based on facts and accurate information.

Paul, with all due respects, the scare tactics are getting really tedious, particularly when they don't necessarily represent the law or industry practice.

The folks at Harry Fox are of the opnion that 10 copies or less fall within the provisions of the AHRA provided that the bride and groom purchased the CD. They admit that this has not been established in court, but it is their professional opinion, a commonly accepted practice and a question that they are often asked. You won't agree, I know, but then this isn't your area of specialty, is it?

You keep quoting the maximum possible liability under 17 U.S.C. Sec. 504(c)(1) yet you leave out the provisions which are far more likely to apply to a wedding videographer in the near zero chance that one does get sued:

The court " may reduce the award of statutory damages to a sum of not less than $200" provided that the "infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright".

Given that Harry Fox considers the action to be legal and that it has not been proven to be otherwise it court, there appears to be a pretty good defense against "willful" infringement under the law. The probability of the $150,000 judgement per song that you wave about so freely seems pretty close to zero. You will no doubt disagree, but so be it.

My point is, scare tactics add absolutely nothing to the conversation.

I have no opinion on industry practice. Everything I've written accurately represents the law.
It's encouraging to hear that Harry Fox takes this position. Is it in writing anywhere, because I haven't seen it? If they've published this position somewhere, then all wedding videographers are free to rely on it and, with respect to any music publishers represented by Harry Fox, can use the CDs for 10 copies or less with impunity.

Why would I disagree with Harry Fox? I've said right along that I think this kind of use should come within either AHRA or fair use doctrine, but there have been no published opinions testing it. I'm glad HFA thinks so, too.

"Specialty" is a term of art for lawyers in California -- you can only be a specialist if you're certified in a particular area, and there is no such thing as a certification in any of the intellectual property fields. I'm an intellectual property litigator -- I prosecute and defend actions for trademark and copyright infringement (and, to a lesser extent, patent).

The amount of a statutory damage award is commited to the judge's discretion. Appellate courts review of an exercise of judicial discretion by applying an "abuse of discretion" standard which, for all intents and purposes, means that a judge can do pretty much what he wants in setting statutory damage.

A professional videographer would have a very difficult time arguing that he was neither aware, nor had reason to believe, that illegal copying of music was an infringement.

As far as what HFA may say, please point me to a source for the attribution, so that I can see the exact language they've used. Their position is important, not because it has any persuasive value in a court of law (it's not), but because they are the representative of the rights' owners -- the doctrines of estoppel, acquiesence and possibly license apply, depending on what they've said and where they've said it.

I don't disagree, though everything depends on context. I posted the statutory maximum in response to another poster who said there could be no damages, which is simply wrong.

Neither does misinformation. I have never suggested that wedding videographers shouldn't use music from commercial CDs. I've only suggested that they understand the law with respect to such use. The law is not, "go ahead and do it, no one will catch you," which seems to be a common view from some people in this forum.

I was suggesting that given that an industry agent views the activity as not an infringement, there would be not necessarily be a basis for a videographer considering it illegal prior to a court ruling to the contrary. (Unless he uses message boards as his source.)

And I have been suggesting that selective quoting of these statues to reflect only the maximum possible penalites does not advance that process.

I am sure you are as sick of this topic as I am. I'm moving on.

ABC evening news 9-8-03, quote" I thought I was safe in my home doing what I wanted" I believe he was a bus driver, first person to be sought after with a lawsuit, up to 150,000 dollars per song.

http://abcnews.go.com/wire/Politics/...0908_1918.html

Settlements are averaging more like $10-15,000, still banditry but not $150,000 per song. And of course having no direct relation with the topic being discussed.

Music? copyright? lawsuit?

Ok. The topic was the first post.

The difference, of course, is merely one of scale. Giving a wedding video on CD or tape to a newlywed couple is just a bit different that trying to make an example of someone who is trading thousands of songs on the Internet (of course, going after the people supplying you with priceless amounts of free advertising is just shooting yourself in the foot, but that's a completely different discussion for a completely different time).

I would be willing to bet, however, that there's no way that putting unlicensed copyrighted music on a wedding tape that someone payed you for will fall under a "personal use" recording under the AHRA.

I don't see how this is possible, really. You're making a profit by the inclusion of a copyrighted work that you don't have the rights to on a recording of the wedding. How that falls under "personal use" is confusing to say the least (but then, it wouldn't be the first time the law has confused me, like why copyrights are so long now compared to when they were codified into law).

I should disclaim my statements by saying that I also would put a song onto a recording, especially if I were only going to supply it to a handful of people, and *especially* if I were not making any money from it. I just don't see how making money using a copyrighted recording is considered OK.

Deperate People Do Desperate Things
 

I certainly support copyright protection and repect for others' intellectual proerty. But the RIAA can only bolster public resentment and hasten their demise by acts like this.

http://maccentral.macworld.com/news/2003/09/10/riaa/

FWIW, Ken's link above deals with a case of online file sharing, which is a bit different from the using-a-song-in-a-wedding-video topic we've been discussing, but I do agree with the sentiment.

ooo oooh!
 

I can tell you guys about music rights....

I created a personal style that is very distinctive for silent film...and screws me in music rights because it is "obvious" that I can use that song and only that song. To make it even worse, my chosen composer is hitting his peak in the market right now and is commanding top dollar for film use.

After going to a seminar on the subject where I learned I was screwed, I did the crazy thing. Without going into detail, I made connections to his family. I haven't become friends with them, but I made a connection who encouraged the lead family member to watch my films. This person told the family lawyer to give me the nod for limited use on my website, and further communicated to me rates for my next film...which I was made to understand MUST be paid for. But the rate is far lower than if I had gone lawyer-lawyer without a personal appeal first.

With music, you are dealing with another artist. If you look at them as such, instead of a as commodity or adversary, you might discover a unique solution...maybe you have something to offer them in exchange. Maybe your work is the best interpretation they ever saw and WANT you to use it!

All the current legal-use issues are "Pimp issues". For the artists, the issue is aboutnot being "used" as much or more then it is about being denied money...

When a film festival promoter kept one of my films that he was required to destroy and showed it without my knowledge 2 years later at a BAR...without calling me to ask...I was enraged and pretty close to suing him,,,I felt violated for no good reason.

His response was I should be grateful for "exposure"...

My anger was for the reason that my cousin who had died after filming was in it, and I had retired it from venues out of respect for everyone who knew her. Thus I was upset for the betrayal and disrespect of me as an artist by someone who "didn't get it".

Some people might think: "Well I want (Insert famous artist here) and they aren't going to talk to ME..."
To which I'd say: "artists are artists. Try to get past the legal hardware and reach the artist."

My 2 cents.