An Ethical Inquiry

[Chris Davis]

Originally Posted by Stefan Sargent

Here's a true story.

Please, tell me another! :) I love Production Diary... When I get DV magazine, I turn to the back page FIRST.

[Stefan Sargent]

Originally Posted by Chris Davis

Please, tell me another! :) I love Production Diary... When I get DV magazine, I turn to the back page FIRST.

So do I!

No Prod. Diary in this month's DV Mag. as it's a NAB Special issue.

After last year's NAB, I'm not going, probably never will go again. End of an era.

Thanks for praise. Always welcome. Always grateful.

Stefan

[Lori Starfelt]

I spoke to a couple organizations today that do sync rights. Basically, it's a grey area. There isn't any legal precedent for this kind of use. None of the existing legal criteria quite match up. The wedding video is work for hire, the song is a very small part of the video, the bulk of the work is done by the videographer, the work isn't being copyrighted and it's only for private viewing with no charge involved. There is some thought that it may be permissible under Fair Use statutes - I think under the 4th pillar. One of the people I spoke with is trying to hunt down an article they saw on the subject. If they find it, I'll let you know. But in the meantime, it hasn't been to court so no one really knows.

You just have to wrestle with your conscience, and figure out what you want to do.

[Steve House]

Where in the world are you getting this stuff? Your postings are a perfect example of wishful thinking in action. There are numerous legal precedents that say a license is required for all music used in wedding, corporate, and event video unless the videographer himself (or the client) is the music's copyright owner and infringement cases have regularly made it into the legal system. The wedding video is NOT a work-for-hire unless the videographer is employed by the couple as a regular W-2 employee hired to shoot video as part of his regular job assignment and paid a salary or hourly wage with taxes and social security etc withheld from his cheque (and how often have you heard of that happening?). The resulting video IS copyrighted - the copyright might not be registered with the Library of Congress but such registration isn't necessary for copyright to exist, it automatically comes into being at the moment the work is fixed in a tangible form (ie, the edited video is recorded to its final media). Whether viewing of the final program is private or public is irrelevant - if you buy a DVD of a pirated movie you'll be viewing it in private but that does not make the copying that was done by the pirate legal. There absolutely IS a charge unless the event videographer is working for free - the videographer creates the program, uses the music in its soundtrack, and then sells the resulting video to his client, which means he's selling the copied music to a third party as part of a new copyrighted work that he has created. His professional fee is for creating the content of the final program and the time he has spent shooting and editing is just an element of the creative process. (And the content of the program is copyright to the videographer unless he transfers it to the client in writing.)

Fair Use is a defence to infringement allegations when the copy is being used in certain ways, and is not a carte blanche, a priori, permission to copy. It applies principally to copies made during the course of news gathering and reporting, brief excerpts for purposes of criticism and commentary, copying for classroom instruction in a formal K-12 or university school setting, and academic research. None of the factors you cite are of issue in Fair Use and none of the Fair Use provisions would normally apply to wedding, corporate, or event video.

IP attorney Gordon Firemark has contributed several messages in this forum recently, you might do a quick search for them. He also has a series of podcasts on legal issues in video posted on iTunes and the topic comes up in a number of them. Give 'em a listen.

[Arthur Hancock]

Steve, you're being very helpful here (and on the pre-1922 recording thread). "Fair use" is much clearer to me now. I'm producing a DVD that has a number of interviews on it--a "person on the street" type deal. If a radio happened to be playing a Beatle song barely audible in the background and that is recorded along with the street interview (in other words I had no control over that background sound) would I have to worry about copyright issues?

[Steve House]

I need to preface my comments with "I am not a lawyer nor do I play one on TV." That particular situation seems to still be up in the air a bit. In general, the inadvertant inclusion of copyrighted background music has been held to be non-infringing, especially when it is clear that it is truly incidental and irrelevant to the subject of the interview. So in your situation I wouldn't worry too much. But I've read that cases have gone both ways. You do have to be a little careful how far you carry it though. If the interview happens to be about the Beatles music then it could be argued that the music in the background is a material part of the scene and needs permission. And if it's a dramatic production with two characters in dialog in the front seat of a car while Beatles music is playing on the radio, then the music definitely is a material part of the scene and needs licensing.

[Chris Davis]

Originally Posted by Arthur Hancock

If a radio happened to be playing a Beatle song barely audible in the background and that is recorded along with the street interview (in other words I had no control over that background sound) would I have to worry about copyright issues?

Yes, or maybe. If you were to strike a deal with a major distributor, they would almost certainly want you to clear that music. Do a search here for "fair use comic" or something like that. It includes a link to a comic that discusses fair use. They site a couple extreme examples from the documentary "Mad Hot Ballroom" - in one scene a cell phone rings. The ring tone is "Gonna Fly Now" from Rocky. EMI wanted $10k to license those few seconds. Fortunately, the producers were able to get it for a reduced rate. In a later shoot, one of the students spontaneously shouted "Everybody dance now!" (a line from the song by C+C Music Factory.) The song's publisher demanded $5k for those simple three words. The scene was cut.

[Arthur Hancock]

Crap like this makes me want to watch the record industry die a slow cruel death (and I'm a songwriter and member of ASCAP). I met Clayton Moore, the Lone Ranger, at a ski show in San Francisco twenty-odd years ago. He wore the full costume with the exception of the mask: he had to wear wrap-around shades because the porkers who owned the LR franchise threatened to sue him because the mask was the LR's trademark and they couldn't abide the aging actor making a few bucks doing personal appearances. Too bad we live in a country where legislation favors the highest bidder (a plutocracy, I think it's called).

[Steve House]

It's the Golden Rule in action. You know: "He who has the gold gets to make the rules."

I think it's pretty silly that a ringtone casually overheard needs clearance but that's the nature of the business these days and one ignores it at one's peril. Companys perceive that if they don't defend their rights when the violation is trivial, it will handicap their ability to defend when the violation is important. I've heard it said that if you fail to enforce your copyright or trademark even once, it can be held that you've renounced your rights with the result of it being thrown into the public domain forever.

[Richard Alvarez]

This is why "Xerox" and "Kleenex" go after publishers who genericize the names. Yeah, you HAVE to defend against trademark or copyright infringement or risk allowing it to fall into the public domain.

But defending it doesn't have to mean defending EVERY case. Which is why they pick and choose which 'small fry' to fry - up. They'll pick those most likely to be high profile cases -f or better or worse.

[Dave Blackhurst]

it's called the "golden rule" - he who has the $$$$ makes the rules.

It's not what the US was founded on, and it's more characteristic of a backward 3rd world country ruled by some despot dictator, only in the US, it's now ruled by powerful corporate interests and their attorneys. Rule by litigation is a very ugly and dangerous precedent, but it's become the standard.

One of these days maybe the REAL Golden Rule will again take precedent - "do unto others as you would have them do unto you".

I believe that applies to BOTH sides of the "copyright debate". Respect the intellectual property of others, just as you want yours to be respected, and be reasonable in your business dealings with others, sometimes you'll get the same in return... if not, move on, there are still reasonable decent people out there!

[Lori Starfelt]

Originally Posted by Steve House

Where in the world are you getting this stuff? Your postings are a perfect example of wishful thinking in action.

Very simply, I got it from two organizations that handle synch rights. You may disagree. I don't have a dog in this fight. I'm simply reporting what two attorneys that handle sync rights said to me. End of story.

[Chris Davis]

Originally Posted by Richard Alvarez

This is why "Xerox" and "Kleenex" go after publishers who genericize the names.

As an interesting aside, the office next to mine is a business that owns several small-town telephone companies. The owner said he got a call one day from a lawyer for Starbucks. He was told they had the change the name of the "Starbuck Telephone Company" or face legal action.

He replied, "You first, the Starbuck Telephone Company has been around for 100 years."

He never heard from them again. BTW, the Starbuck Telephone Company is located in Starbuck, MN.

[Shaun Roemich]

Originally Posted by Chris Davis

BTW, the Starbuck Telephone Company is located in Starbuck, MN.

Not for long; soon it will be Springfield, MN. I'm sure the corporation wouldn't STAND for a town "named after it"...

[Jon Michael Ryan]

Originally Posted by Richard Alvarez

Jon,

It sounds like you're frustrated - because others might benefit financially from breaking the law, while you feel you suffer financially by following it.

Well, yes... that's generally true for most illegal activities. The fact of the matter is, crime DOES pay. The chance for getting caught at breaking almost ANY law is statistically low - from speeding to robbing banks.

It's also true for the illegal use of copyright material.

Now, speaking as someone who is married to an IP attorney - I can say with certainty - that there are people out there, LOOKING for violations. Actively pursuing individuals who 'steal' IP in various stages. It's not a pretty picture when you're caught red handed.

Laws are like locks. They won't stop a serious thief, they are there to keep honest people honest.


Honestly.

Richard: agreed. Honestly, though, my frustration has nothing to do with my financial consequences implemented by their misuse of the material. Rather, my frustration is with the negligence exhibited as a result of poor moral character. We're not talking kids stealing bread... we're talking less talented people stealing from (questionably, ha) talented people to bolster their own work. Now, THAT being said... we ALL do that as video and film people. Nonetheless, I think you get my point; it's about recognition (fiscal or vocal) where it's properly (and LEGALLY) due.

My IP attorney has shared similar stories, and the "end-game" does make me happy (when they DO get caught).

Originally Posted by Paul Mailath

I'm in Aus and have a licence to use most music for this purpose, but NONE of that licence fee goes back to the artist - it goes to the licensing body. I don't know anyone that's been asked "which songs have you used?, we'd like to give those bands some extra cash" I guess that makes me legally correct but morally incorrect.

You're not 'rekindling' - this subject has been done to death, and there are still a couple of current threads. I'm guessing that the majority of people reading these and not replying are engaged in the activity anyway - rather than beat them over the head with the moral stick, I think your time (and all of us) would be better spent discussing a campaign to change the law.

Semantics aside, I'd still call it a rekindling. The move to changing the law can't happen until legit companies and artists band together (non Union style) to watchdog on companies and persons disobeying the rule. In many ways, the conversation is beat to the ground but nothing is exchanged. A fire in an empty living room sure looks great, but what's the point? Unless people sit AROUND that fire, no one feels the warmth. I feel like many conversations happen in small packs of like-minded people. More exposure on the subject means more likelihood for newcomer exposure, and this means, perchance, greater likelihood to make them aware of the implications of piracy.

Sigh. I wish I were in Australia. Snakes around here are boring (my apologies to the Rattlers and Cottonmouths, but the Aussies have us on this one).