Purchasing music for photo montage

[Patricia Kim]

Last night I followed Richard Alvarez' suggestion and looked up other threads on this issue using Paul Tauger's name as the search key. Didn't have time to read all of them, but if anyone has any doubts about this mattering to people who created and own the rights to their music, I think the thread featuring Douglas Spotted Eagle's views - he who has both won Grammys and had his music used without permission - should be of interest. My interpretation of what he said is that he would also like to see a way that people can pay for using his music for their videos, but until that happens, it's theft.

[Paul Tauger]

I don't know if it's ever been addressed, but I can't believe any court would find you liable for infringement if it's purely personal use. I am of the opinion that once media is in your home you should be able to do whatever the heck you want with it, including copying it as much as you want to whatever multimedia forms you want. The line should be drawn as soon as you give it to someone else. Of course that's my policy opinion, not necessarily the law. Like I said this area is not well defined.

There's nothing ill-defined about the law at all. The AHRA allows making copies of music for personal use (or, more accurately, precludes infringement liability). Note that personal use doesn not include "public performance," which means playing it outside of your immediate family and circle of friends.

I want to use popular music with photo montages that I make for other people.

You cannot do this legally. The AHRA does not permit making copies for other people. Going back to the first comment, what is ill-defined in the AHRA is whether creating a derivative work by using music as a video soundtrack comes within the liability preclusion of the statute.

I didn't get a clear answer above, but from other posts I think that it is 'changing' the content of the music by adding it to the pictures that creates the problem.

There are at least two problems:
1. Making copies for other people falls outside the AHRA.
2. Preparing derivative works falls outside the AHRA.
That said, my personal opinion (which is NOT to be relied upon -- you're not my client, and I'm not providing you legal advice) is that, if the CD is lawfully acquired by the party for whom you're making the tape, it _should_ be considered Fair Use. However, no court has ruled on it, and fair use is only a defense to infringement, meaning you won't know whether I'm right or not until you get sued.

I read somewhere that there was an understanding that if you made fewer than 10 copies of a production, the owners of the copywrite would not worry about it.

Completely wrong. When I sue for infringement on behalf of my clients, it is generally because there is a sound business reason for doing so, e.g. sending a message to other infringers, preventing something from falling into the public domain, etc. Statutory damages for infringement of a registered work can be as high as $150,000.

I guess it might be like other laws are still on the books, but are not persued. I think that fornication is illegal in many states, but I don't hear of people being prosecuted for that either, although I would guess that a few people are engaging in it.

It's not a good idea to guess about these things and, in this instance, your guess is wrong. High schools have been sued for unlicensed performances of plays. Ministers have been sued for making copies of hymns for their choirs. As I said, if there is a sound business reason to pursue an infringement, the rights owner will do so. As for fornication being illegal, there may or may not still be blue laws on the books -- they are, however, clearly unconstitutional. Copyright law, on the other hand, is NOT unconstitutional, and has been tested many times.
[quote]Is there a resonable way to stay in compliance with the law, or do the the people that do the licensing just not care enough to provide a way.[/.quote]Sure. Just write to the rights owner and request a license. There are a number of posters to dvinfo.net who have done just that. You may or may not get permission, but evidently quite a few people do. Your other option is to decide to take the risk of prosecution and do it without a license. Only you can decide whether it makes business sense to undertake the risk. I will say this, though -- it's clear that you lack sufficient information to effectively evaluate the risk.

That's also not entirely true. Fair use is a very fact-based inquiry. If copying inside the home for personal or educational use, even in video projects, and never distributing it to everyone is a fair use, which I believe it is but which, to my knowledge, has never been addressed, then there would be no liability. You wouldn't "loose" you'd "win." The only legal barrier to private, personal copying is the DMCA, which fortunately doesn't cover CDs. Once copies are given to anyone else, of course, that's when you lose.

Great explanation. One thing, though -- I don't believe the DMCA exempts CDs. Rather, most CDs are not copy-protected so the DMCA doesn't apply. The interesting question, though, is whether the DMCA would apply to copy-protected CDs, of which there are more and more. The DMCA provides that it does not interfere with fair use, and the AHRA, while not a fair use doctrine per se, is clearly related. Fortunately, Congress has woken up to the potential conflict and there is legislation pending to correct it.

the problem I have is that the songs I want to use have been licensed and paid for by millions of people and every radio station in the country.

Yes . . . licensed by radio stations for public performance through BMI/ASCAP. _Not_ licensed for copying and preparation of derivative works. If your argument is, "the record companies have already made enough," that's contrary to Article I, Section 8 of the Constitution which expressly reserves EXCLUSIVE rights to protected works to the authors. This includes the right to withhold use, as well as the right to license it.

sincerely doubt that the arguments of "hey, it was just personal use", or "we are a non-profit organization" or "I bought an equal number of licenses for each video sold" will hold any water.

Exactly right -- see what I wrote about high schools and churches.

think the thread featuring Douglas Spotted Eagle's views - he who has both won Grammys and had his music used without permission - should be of interest. My interpretation of what he said is that he would also like to see a way that people can pay for using his music for their videos, but until that happens, it's theft.

Also exactly right. As I recall, I had a technical disagreement with Douglas about fair use, but hypertechnicalities aside, he was spot on.

Taking off my lawyer hat for a moment, and putting on my videographer hat, this is something I also face with my videos. I do travel videos, and I'm preparing to offer them commercially -- I already have a public website with trailers that are available to the public. My solution to music involves multiple sources:

1. Smartsound -- as other posters have indicated, these are licensed for unlimited use, royalty free. My production company trailer (or whatever it's called) uses Smartsound.

2. True public domain music -- I frequently record itinerant musicians in the field playing folk music (I've got an India video I'm going to release that uses this exclusively). Since the music is public domain and, presumptively, the particular musicians I'm using haven't recorded their performance, there are no copyright issues.

3. Electronic performances of classical music -- There are programs that can scan sheet music and produce a MIDI file. I have a few Emu Proteuses (Proteii?), which are sophisticated and convincing sample players (you can buy them on eBay for as little as $75). With judicious sound processing, some manually-applied fixes, and a little reverb, I can get a full orchestration of virtually any classical piece with little effort and at no cost. The only concern is to _not_ use copyright-protected sheet music arrangements.

4. Licensed music -- from time to time, I'll pick up CDs locally when I'm travelling. I haven't done this yet, but if I want to use a piece from one of these CDs (I'm thinking specifically of a Sicilian mandolin orchestra which I liked), I'll write them and ask if I can purchase a license.

[Mike Rehmus]

One of the biggest factors in facing litigation is that you have to pay to defend yourself. You cannot find an attorney who will take it on speculation because you won't win anything of monetary value if you did win. So you can spend, say, $200 and hour for a low-priced litigation attorney with copyright experience (very low price for one BTW) and just to defend yourself.

Can you afford to play the game in that case? You have to defend yourself or they win by default. They'll probably win anyway.

For us professionals, that seems like very expensive music.

Smartsound and the thousands of royalty-free and needle-drop music suppliers out there have every genre of music there is. Some quite good. Many priced a quite low prices.

That said, what you said points up a possible business opportunity. Obtaining full license rights to music and selling a license to we small-time users.

I've obtained a one-time use license from Inner Circle for use of 'Bad Boys' in a police video and a one-time license for the use of 'Proud to be an American' for use in another Police Video right after 9-11. Cost less than $100 per use in total.

[Peter Moore]

"There's nothing ill-defined about the law at all. The AHRA allows making copies of music for personal use (or, more accurately, precludes infringement liability). Note that personal use doesn not include "public performance," which means playing it outside of your immediate family and circle of friends."

But Paul, wouldn't you agree that it is hardly settled that the AHRA protects you from making a copy of music and using it in a derivative multimedia work (regardless of whether you keep it personal or not). I know you've said before you think it's a fair use, and I agree, but is there precedent for that?

It seems to me, the AHRA was meant to let people make first generation copies of DATs and CDs, not make photo montages. Besides, in the Diamond Rio case the court said that computers were not covered by the AHRA. That's a double-edged sword. No, computer manufacturers don't need to put in serial copy management, but that also means someone who uses a computer to make a copy isn't protected by the AHRA. The court did say making a personal backup to an MP3 player is a fair use, but does that extend to using it in derivative multimedia productions, even for purely personal use?

Again, probably fair use, but can we say for sure?

[Paul Tauger]

But Paul, wouldn't you agree that it is hardly settled that the AHRA protects you from making a copy of music and using it in a derivative multimedia work (regardless of whether you keep it personal or not). I know you've said before you think it's a fair use, and I agree, but is there precedent for that?

No, I wouldn't. The AHRA addresses copying, which is one of the enumerated rights reserved to copyright owners. Preparing a derivative work is a separate enumerated right and is not the subject of the AHRA.

The court did say making a personal backup to an MP3 player is a fair use, but does that extend to using it in derivative multimedia productions, even for purely personal use?

Again, probably fair use, but can we say for sure?

As I said, they are different enumerated rights, one of which is the subject of the AHRA, the other isn't, so, no, it does not apply to producing derivative works. Personally, I think using a legitimately-acquired CD for the soundtrack of a video for personal use and limited commercial uses, e.g. wedding videos, is probably fair use and, should I ever get sued for something like that, that would be one of the bases for my defense. However, fair use doctrine is different from, and only peripherally-related to, the AHRA.

[Peter Moore]

Right that's exactly what I thought. I think I misunderstood your response earlier. It seemed like you were saying the AHRA would let you copy as much as you wanted in whatever multimedia form you wanted, and since computers aren't even covered by it there'd have to be something else (fair use, etc.) that would protect you. I would be very interested to see how such a personal use case you mention would turn out.

[Law Tyler]

I use royalty-free music exclusively.

But months ago, I came across this wedding videographer website, and I forgot whether it was in my area, or in another state, but this guy was playing the hit song from the movie "Ghost" (Oh my love, my darling...) right out of the CD, as the background music for his web page. Talk about in-your-face violation.

Even if he purchased a 500-time license or whatever from HFA, it must ran out already.

If people are doing that, I seriously doubt there is really any consequence. As for me personally, I don't take that kind of chance.

The thing is I forgot where this site is or how to get there, I will try to find it if I have time. At the time, I seriously thought of reporting this guy, but it was before I found you people.

Who was it in this thread who said he will report somebody to even the playing field? Will see if I can find this fellow.

[Lloyd Coleman]

Thank you everyone for the great information. I have learned a lot, but have more questions and want to clarify a few points.

1. Fair Use: Does fair use mean making a copy of a legitimately purchased song and only using it with immediate family and friends? If I don’t have the skill or equipment, can I have someone else make the copy for me as long as I still use it with immediate family and friends? Can I pay the person who makes the copy and still fall under the fair use definition?

2. Derivative Work - Synchronization: I am confused by this whole thing. It is quite easy to buy a license to play music at a place of business or other uses like that. You can also buy a license to play music on your website. A website has images that are shown with the music and are often synchronized with the music, yet it appears that these licenses (not sync licenses) cover this use. You can also legally buy and download music from sites like itunes. Their website says “You can burn songs onto an unlimited number of CDs for your personal use, listen to songs on an unlimited number of iPods and play songs on up to three Macintosh computers or Windows PCs.” When I listen to songs on my computer using Windows Media Player I can play these songs with ‘visualizations’ which are images that are synchronized with the music. How are websites and the players with synchronized images different that using the music with photo montages? Does fair use apply to derivative works?

Thank you.

[Mike Rehmus]

Repeat after me:

"I will only ask simple questions for the next few months!" :-)))

[Peter Moore]

Are there any simple copyright questions? :)

[Mike Rehmus]

Finally, a simple question. The answer is, "NO!"

[Law Tyler]

Oh, simple question, where do you report competing videographer violating copyright blantently and gaining an unfair advantage, and what chances you would simply to be told to go away?

We are talking about popular songs.

[Paul Tauger]

1. Fair Use: Does fair use mean making a copy of a legitimately purchased song and only using it with immediate family and friends? If I don’t have the skill or equipment, can I have someone else make the copy for me as long as I still use it with immediate family and friends? Can I pay the person who makes the copy and still fall under the fair use definition?

What you've described, i.e. making a copy for personal use, comes within the AHRA, not fair use. Fair Use doctrine is a complicated equitable doctrine, meaning _judge-made_ law, that has been codified in the U.S. Copyright Act. Making a copy for personal use probably would _not_ come within Fair Use, though ripping to an MP3 player, making a tape for your car, etc. probably would. The AHRA precludes infringement liability for copyring music for personal use. It does _not_ permit paying someone else to make that copy.

. Derivative Work - Synchronization: I am confused by this whole thing. It is quite easy to buy a license to play music at a place of business or other uses like that. You can also buy a license to play music on your website. A website has images that are shown with the music and are often synchronized with the music, yet it appears that these licenses (not sync licenses) cover this use. You can also legally buy and download music from sites like itunes.

A derivative work, by definition, is one which is based upon, and incorporates a substantial part of, the original. Playing music on a website is not a derivative work per se, though it is a public performance, for which you need a performance license. I don't know what iTunes does, but I'm certain that, whatever license they convey, it does not include the right to prepare derivative works.

Fair use applies to derivative works. What you've described isn't fair use.

Oh, simple question, where do you report competing videographer violating copyright blantently and gaining an unfair advantage, and what chances you would simply to be told to go away?

Now, THAT's an interesting question for a couple of reasons. With respect to the infringement, you'd report it to the copyright owner and, if it was critical, e.g. selling counterfeit movies, etc., to the US Attorney General's office and/or the FBI. That's not the interesting part, though. Most states have unfair competition laws that tend to be fairly broad. Here, in California, our unfair business practices act, Cal. Bus. & Prof. Code Sec. 17200 et seq. is so broadly construed as to penalize ANY conduct which is remotely illegal. I'd have to research it more, but it is possible that a videographer who feels his competition has gained an unfair advantage through the illegal use of copyright-protected music, _may_ have an individual cause of action for unfair business practices, i.e. he can sue his competitor on that basis. Unfair competition is, however, civil and criminal, so there is no one to "report" it to except, perhaps, the state attorney general.

[Law Tyler]

Are "unfair competition" laws typically upheld? I am thinking they were typically passed by politicians on behalves of their business contributors, as a basis for the latter to harrass their competitors, all parties fully knowing that they will never stand up in the end. But the purpose is served when the competitors gone bankrupt from defending the thing or capitulate in some way.

Or am I wrong?

[Paul Tauger]

Are "unfair competition" laws typically upheld?

Absolutely. Most times they are pled along with other causes of action, e.g. copyright or trademark infringement, antitrust, etc., so the remedies are cumulative -- you only get to collect once.