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Originally Posted by Dave Blackhurst
(Post 994504)
I probably didn't express that entirely clearly... he would be the "author", obviously, and to that extent have "ownership", but the right to do anything "for profit" with that ownership might be limited.
In other words, it's his work product, but he probably can't make money from it without some issues IF he were profiting from school equipment purchased with public funds.
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I don't think so. There's certainly nothing in the copyright laws that would prohibit him from doing so. In fact, quite the contrary, the whole rationale of copyright is to allow authors to profit from their original expresson.
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The real twist here is that all he really was doing was recouping costs for producing a few DVDs with his OWN equipment to the benefit of the school, not making the "big bucks", and the station manager wanted a "piece of the action" as a part of the deal to broadcast the content.
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That is what it sounds like.
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This is the slippery slope of "infringement", and IP law.
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I have to disagree. This has nothing to do with copyright law (aside from the concern that OP himself is infringing for not having rights to the music).
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Glenn probably wouldn't get in trouble doing what he was doing, and was appreciated for his efforts... then the SM wants to turn it into a profit making venture, and now the trouble begins... now you're debating rights instead of benefits.
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True, but whether or not he would get into trouble is something on which I have no opinion -- I've only spoken about the applicable laws.
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Where is the $ figure or level of "infringement" that constitutes damage
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There isn't one. Copyright goes solely to the right to control an author's protected expression. Whether or not quantifiable damage results is irrelevant. Statutory damages are available when actual damages either can't be proven or are de minimus.
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- is it the guy who makes a DVD for his kids dancing with some music they like on it and happens to make a copy for the neighbor whose kids were ALSO dancing?
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Under U.S. law, that is infringement though, arguably,
might be fair use.
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Or the guy in Singapore cranking out 10,000 knockoff discs?
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That's criminal infringement if he tries to sell them here.
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Unfortunately I suspect BOTH are "lawbreakers" in the current state of IP law.
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Well, one probably has a tenable fair use defense, whereas the other clearly does not.
If someone drives 5 miles over the speed limit, are they any less a lawbreaker than someone who drives 50 miles over the speed limit?
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The first fellow is just doing something nice and thoughtful and reasonable but in theory deprives the owner of the music of "something"... IMO he should have some "fair use" exclusion.
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There is no "nice" exception to copyright infringement. What you are missing is that the music on the video does not belong to him -- it is not his to give to someone in the name of being nice. However, as I said, he probably has a tenable fair use defense, though it has nothing to do with being nice. Instead, it is based on the use being transformative, non-commercial, and not hurting the market for the original.
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The second guy is intending to steal profits from the legitimate owner, defraud any buyer of their fake product, and make money lining his pockets at the expense of others... and should be hung from his toenails till eaten alive by gigantic red ants, preferably slowly.
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That's why it's criminal. It's also intentional, subjecting him to up to $1,000,000 in statutory damages.
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Considering the OP's position - he's shooting and editing with his own gear as "extra credit".
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I don't recall him mentioning getting any kind of credit. It's just something he likes to do at the school.
He owns the physical footage, as well as the copyright in any original expression.
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As far as copying and distributing it, the potential copyright issues have been covered, but I'd classify the audio recorded as part of the performance and would argue for that being an "incidental" - he is recording the BAND "in the moment", not "a performance of <insert music title here>".
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Of course it's part of the performance. And the band is performing the protected expression that belongs to someone else. Their license permits performance. It does not permit the OP to record it.
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The line IMO becomes that it really doesn't matter per se WHAT the band is playing, the value is in the perfomance by the BAND, not in the specific piece performed. No one other than the band members and their family/friends (IOW a few "community" members) would have any interest in the end video product, regardless of what was being played. Other than one old Fleetwood Mac piece that rings a bell, the arrangement of a piece of music redered by a marching band or school orchestra is not at the top of my playlist... EVER. My ears are far too sensitive.
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This is why IP lawyers litigate IP issues, rather than lay people. Article I, Section 8 of the Constitution is quite clear about the purpose of copyright: it grants a time-limited monopoly to authors in their words of creative expression. Fair use has a First Amendment purpose. The rationale of neither supports airing the video on a public access channel.
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So let's say he owns the footage, and has a pretty decent affirmative defense to the allegation he's "infringing". He's got no obligation to allow the SM to "take" his work product without compensation and make money from it, and has a reasonable right to determine the use of his own work, which up until the intervention of the SM he was doing...
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You're mixing apples and oranges. He does own the footage. It does contain protected expression that he own. The SM has no right to air it without permission.
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If the SM continues, the best thing to do is "take the marbles and go home", go back to what he was doing to benefit the school/friends/community, and not worry about it.
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That's what I said . . . oh . . . about 15 posts ago. ;)
