Music rights question...again

[Roze Ann]

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!!!

[Paul Tauger]

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. . .

If it's just for your relatives or friends, no problem at all. Use the music all you want. It's just if you make profit off it that you need to worry.

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.

[Mark Moore]

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!

[Roze Ann]

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.

[Mark Moore]

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!

[Paul Tauger]

The basic, bottom line answer is that it isn't legal.

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."

Will anyone prosecute? Doubtful.

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.

However, I've been told it's illegal to make tapes and CDs to play in your home and car!

You've been told wrong. This comes within the AHRA

But we all do it.

Which is one of the reasons the AHRA was passed.

[Paul Tauger]

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?

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.

[Paul Tauger]

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.

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.

[Don Parrish]

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.

[John Locke]

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).

[Mark Moore]

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.

[Richard Alvarez]

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."

[Mark Moore]

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.

[Paul Tauger]

have to ask, What about the bar with ESPN, superbowl or NASCAR showing.

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.

What about the band at the local watering hole, what about the piped in music by telephone line into restaurants?

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

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.

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."

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

[Paul Tauger]

If you don't mind, please tell me what the AHRA stands for?

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