Help! Copyrighted music playing in the background on my shoot...
 

Hello all. A quick production question from the woods. If where I'm filming my documentary often has music (copyrighted CD's) booming from speakers in the background, and it can be heard under my interviews, the kids activities, etc. am I going to be on the hook to secure rights to that music? If that's the case, it would mean much of what I've shot is unuseable as I don't have the budget to cover that. :-( Do docs fall under any sort of clearance in this regard, since I'm recording life as it unfolds, and they're playing it, not me? (sigh)

Please post asap if you have any knowledge about this, or where I should make further inquiries.

Marcia

This could possibly fall under "incidental reproduction." I am not a lawyer, but check out a post from resident attorney Paul Tauger in this thread:
http://www.dvinfo.net/conf/showthrea...l+reproduction

Paul's is the fifth post down. Perhaps not a definitive answer (is there ever such a thing when it comes to law?), but a starting point.

If not fair use, then I guess I can prevent all film making in public, absent other legal accomodation, by simply being near where they are and booming copyrighed music in their direction. What a JOKE!

The law was not written thinking of a time when everyone had a home movie camera and could film anywehre in public. In 1976, filming a movie meant being in a controlled environment where it would be easy to prevent copyrighted items from coming into the shot or sound. Obviously the next iteration of the copyright law will have to consider such issues.

Thanks for writing. At this point I guess I just blunder on ahead, doing the best I can to avoid music from here on out, but it really is going to be next to impossible.

I've put so much of my life into this story I can't believe that this important tale could be tanked over something like this. I have no desire, nor would I ever knowingly, violate any artist's rights. The songs are never played in their entirety. They are clearly NOT used instead of song tracks, and I am going to hire a composer to create songs, tracks, etc. for it, down the line. So in the end, when this is a compelling story of a medical condition that children are dealing with, and the music is so totally incidental, I guess I will have to continue on in the hope that my intent will be clear and won't be challenged. (sigh) Given that Sony, Paramount, and PBS have expressed interest, I shudder to think what their lawyers will say. But since I'm shooting this on a shoestring budget, I have no other options.

When I return from the woods guess I'd better head for an attorney to get a "legal" opinion... but even that's no guarantee.

Marcia

Nothing is ever absolute when there's lawyers and courts involved. Imagine doing a doc on scratch/house DJs or wedding bands. Imagine shooting a doc interview of a "person on the street" and they happen to be drinking Starbucks Coffee.

I'm not gonna say your absolutely safe (nor am I a lawyer) because businesses sue at the drop of a hat (or drop of a few farthings more likely) 'cause the plantif can concoct all sorts of reasons . . . but I think you're relatively safe.

Think of the other sides of the coin, paid product placement. Imagine doing the above house DJ doc/interview and unbeknownst to the filmmaker, the DJ was slipped a few bucks to make sure certain tunes were on the turntable during the interview. Someone watches the doc and notices that all the interviews and club shots have background music by bands signed to a single record label and it's the $64,000 question again maybe.

My point is that it's never clear cut. Like driving a car, you're relatively safe but unanticipated crashes and lawsuits happen.

Imagine docs about Charles Manson that had Beatles Revolution Number 9 in it. In that case the music was integral to the story.

I think a doc may have similar protections to news stories.

Entertainment is another story. I used to edit some "person in the street" stuff for MTV/VH1 that was shot in Times Square (NYC). It was a background with product logos everywhere. We had to blur them out one frame at a time!

"because businesses sue at the drop of a hat "

RIAA is the only business that sues at the drop of a hat. Other businesses sue far less frequently and far more prudently than individuals.

Peter, what's RIAA?

Recording Industry Association of America. They're the ones suing everyone over file sharing. They (either the association or one of its member recording labels) would be the ones who would sue you if you're violating a music recording copyright.

Sigh.

1. I am a lawyer, and I can't say whether the OP is safe or not without knowing an awful lot more about the project.

2. I've written on incidental reproduction extensively at dvinfo.net, so I'll just summarize:

The law is far from clear on this. However, news + short segment = probably okay. Non-news + complete work = almost certainly not okay. Documentary for commercial release? Good question. No easy answer.

She's not "relatively safe," particularly given that major studios are interested in distribution. As I said, I'm an intellectual property lawyer and I can't provide an opinion based on the limited amount of information listed by the OP. You're not in any position to make this kind of evaluation, and really do a tremendous disservice by attempting to do so.

Indeed, I wish I had a dime for every time someone gave a bad legal opinion.