Copyright -- Various Issues
 

You know every time I watch a video such as a skate video, a amateur produced video, or more specific 360 Video Magazine(360vm.com) It makes me wonder. How in the world do they get the money to get the rights to use those songs? Or do you even need to get the rights? Can someone run me through this process?

Sometimes bands give them the rights for nothing just for the exposure. It works. I can't tell you how many bands I started to listen to because of hearing their song an a skate or mountain bike tape.

Interesting story:
For the first Tony Hawk Pro Skater video game Activision couldn't get the rights to use music from popular bands. Now bands like Sum 41, NOFX and Papa Roach are dying to get one of their tracks on a Tony Hawk game. Or any extreme game for that matter.

dyslexicrydaz,

I've been shooting extreme sports videos for a few years now and as you know the soundtrack can really make or break the video and avideo can also make or break a band.

Back in the early 90's Taylor Steele made a surf video called Momentum, coming from Hawaii, I'm sure you know of both Taylor and his videos. Taylor used then unknown bands for his soundtrack. Some of those bands are now big names in the alternative music scene like Pennywise, Sprung Monkey, Offspring, Bad Religion and Unwritten Law. Their music still appears in Taylors videos.

Like Justin said many bands will let you use their music for the exposure. So get out there, cruise the clubs, talk to friends. Take your camera with you and offer to shoot some video for some local Hawaiian bands, it's a two way street you help them, they help you, that's what keeps the underground/alternative music/video industry alive.

Yeah I was aiming towards the local music. Some of the music has got what I need for my video... Thanx for the help guys... It really cleared up the song/rights issues for me.

One thing I forgot to mention was try going to small local record lables. They usually have lots of bands that are dying for exposure. If they don't have any that want to do it for free they can usually hook you up with some that will.

Just rembember to make sure your video is top shelf, both yours and the bands reputations are on the line. In a small place like Hawaii, reputation is everything.

Justin,

It's funny how many of those so-called punk bands suddenly forget their roots when money is involved. There really is a suit and tie lurking under the safety pins

I think it was Fat Mike from NOFX that said punk bands used to siing about politics and current issues, now they sing about love.

Yeah Justin, how times have changed.

With the commercial success of Green Day and The Offspring 'Punk' became mainstream. Suddenly any band playing fast 4/4 guitar pop became a 'New School' punk band.

I'm just stoked that Bad Religion are still out their spreading the message and staying true to their roots. Actually I can't see Greg Graffin ever changing, long live Punk Rock!!!!!

another music copyright question
 

I was picking up some shots at the local photo shop when I noticed a sign, "drop off site for turning your photo's and slides into video with your music". With your music? Apparently they have to bring the music with them. I would think this is at least border line grey area. What do you think, busting copyright or just selling the service, if one puts music to personal photo's and slides for a fee???? I searched the DV site for this answer and didn't see it.

The "your music" part is their way of getting out of the copyright issue. I would think the customer agreement also has some fine print that excludes the service provider from any liability.

I agree with Mr. Loh. The end result is for home conumption and not for the general public, especially for a fee. I would still have them sign a document which states that this is their "background" music and is not to be shown to the general public for or without fee.

Bruce

I'm no attorney, nor do I give legal advice. It is definetly a grey area as far as enforcement. No, one (BMI, ASCAP etc) goes after these local transfer guys. The big guys (Eastman Kodak etc) use their own music (buyout). The vagueness comes from any personal use clause in the copyright law. The end users aren't selling it or using it except for personel use. The guy charging to copy the music is most liable (deeper pockets-he's got a business), but they are mostly guys doing that service on the side. Everybody looks the other way. The music industry also isn't looking for any more bad press at this time. They have bigger fish to fry with pending legislation. You can't sign away your responsabilities under the copyright laws. Signing some kind of disclaimer won't get you anywhere. K-Mart has been sued twice (lost both times) by the PPA for copying copyrighted photographs. I think the first settlement was for around $65 million. The second settlement was for over 100 million but I think it's tied up in the bankruptcy. Lawyers are after the big settlement and there aren't any in the local guy putting music on old home movies. Besides the lawyer probably had it done for his parents and insisted on Barry Manilow.

Jeff

copyright protection
 

Since I'm just putting wraps on my project, and as it will be for sale, I'd like to know what I can do to protect it, both physicaly and legaly.

First, there probably isn't much I can do about people making pirate copies of the video, unless I buy some extra video hardware, right?

In terms of legaly, what do I have to do to make sure people can't copy my footage and use it for something else?
Is it as simple as putting "(c) Dylan Couper 2002" or as paintful as submitting multiple forms to faceless gov't agencies?

I don't expect any piracy issues, but I would like some protection.

Thanks!

I can't help you with physical protection, but I can explain about legal protection.

First, a necessary disclaimer: you're not my client, I'm not your lawyer, nothing contained herein is legal advice. If you have questions about a specific legal problem or issue, you should consult yoru own attorney.

That said . . .

Assuming you are posting in the US, your project is protected by copyright as soon as it is fixed in a tangible medium, i.e. residing on your hard drive or transferred to a master video tape or DVD. You don't have to do anything else. There is no longer a notice requirement in the US -- you don't have to use the c-in-a-circle symbol or the word "copyright," etc.

However, even though your project is protected, it is still in your interest to register the copyright with the US Copyright Office. There are a couple of reasons for doing this. First, registration is a prerequisite to an infringement suit -- you couldn't sue for infringement unless your copyright is registered. Second, it provides prima facie proof of ownership and validity, meaning that the burden would be on the infringer to prove that you don't own the copyright. Finally, statutory damages (which are usually higher than actual damages, and don't require proof) don't accrue until the copyright is registered.

You can register your copyright yourself -- it's easy and inexpensive. Forms are available at the copyright office's website (sorry, I don't have the url handy).

Great answer, thanks!


How about actual physical protection, gentlemen?

Dylan,

Physical Protection is almost impossible.

Say you put it on dvd, most people can copy it, either by doing a worse vhs copy or doing an actual dvd-rip.

If you want to get macrovision encoded into it, you have to pay for that, i don't know the costs, but it could be quite high (someone correct me if i am wrong). This will stop vhs copies being made the usual way, but many dvd players have a hack to disable it, or if it is on VHS many people have a passthrough box to disable it and if someone wants to rip it, you have no chance there are so many ways around it. Ohh don't forget once your footage is on a computer be it on a dvd, they can then output to a vcr with no macro, or whatever they want.

Imitation is the greatest form of flattery, there is nothing you can really do, if someone wants it, they will copy it.

kermie

Howdy from Texas,

While there's not very much that can be done to prevent illegal copying, I don't think it's a very big problem if it happens. The biggest threat you have is, if someone copies your work in quantity and tries to sell those copies to a broad market. Then it's a matter of just going after them, assuming you can find out about it in the first place. The law will be on your side, but there'll be significant expense incurred in bringing the case to court. You'll be assured a victory there, but can you make the long haul into court, is the question.

I wouldn't worry about the occasional one or two copies. First, who is really going to go to that trouble? Most people won't. Those that will are very few in number. If your video is properly marketed, and properly distributed, then hopefully you'll be at a point where you won't care about one or two illegal burns which you may never even know about anyway. You'll be in a position where instead you're keeping an eye on the shelves and looking out for copies of your video appearing for sale. That's who you'll want to go after.

For years we did dance recital tapes every summer and I used to worry about some underground network of parents making copies and stealing potential sales. But it never happened... they had more important things to do, and we sold at least one or two tapes to every set of parents at the recital. Hope this helps,

Forget about copy protections for two reasons:
1. they tend to cost a lot of money
2. they will not help one bit

Every available protection (for video/dvd) can be copied
instantly at this moment. It is just not worth the trouble.
If your film is large and good enough most people will
buy it anyway (I buy all the good movies on DVD personally).

Just some thoughts

OK, points well made. I'll skip the physical protection. I wasn't worried about someone re-selling it, just people making extra copies for their friends. You're right though, it probably doesn't matter.

Thanks!

More copyright queries
 

Okay, just out of curiosity, how many of you who produce your own shorts, on your own (not work for hire or any of that jazz) get them registered with the copyright office before showing them to the world? I'm sending my package off tomorrow, but I don't want to sit and wait half a year to do anything with my movie (they said it takes four-five months to process the submission and send back your certificate.

Josh,

I copyright my SCRIPTS as soon as I am finished with them. I post the copyright notice on the credits and packaging of my films. I've not sent tapes to the copyright office...yet. I HAVE sent tapes of some theatrical shows I produced, as well as the scripts.

The copyright is ESTABLISHED when it is created, it can be ENFORCED when you have the registration. If you are worried it will be copied, you can wait for the registration to release it. But you are already protected before it returns.

AS always, this applies to US laws, check the copyright laws in your country.

Josh,

If you register it with the WGA online for $20...it's covered immediately.

http://www.wga.org/registration/register-online.html

WGAw registration is not US PTO copyright. It is, however, a useful filing that can be used as evidence in court to prove that I have claim as author of the material.

I recently registered a script with WGAw and they sent me a nice little certificate, with little flecks of red and blue in the paper just like dollar bills. I uploaded my script online in TXT format and they charged my credit card $20. The whole process took about a minute and a half. Cheap and easy protection. But, as I understand it, and I am not a lawyer (only the son of two!), what this doesn't afford that US PTO copyright does afford is the ability to seek statutory damages on a per-infraction basis. If Big Fat Production Company makes a million copies of my script and it is registered with the US PTO, then a judge can grant me a certain fixed sum of money for every copy they have made (statutory damages), regardless of any losses I incur as a result of my intellectual property being abused (actual damages). If I prove that the infrigment was intentional, I can claim statutory damages of up to $150,000 if the judge rules in my favor. One web site claims that stautory damage awards are generally $500 to $20,000 per work.

All of this is covered under USC Title 17, Section 504 (http://www4.law.cornell.edu/uscode/17/504.html).

Additionally, US PTO copyright is recognized by international law (WIPO, Berne Convention, Geneva Convention, etc.), and so can stand for copyright in a number of places around the world.

For aspiring industry screenwriters, it is not useful to place "do not copy" warnings all over scripts submitted to Hollywood. Producers and production companies will be making copies, and if the script is any good this is exactly what you want to have happen, because the more your script gets passed around, the better potential it has for getting read by the right people, generating buzz, and landing you That Big Break.

Also note that WGAw registration must be renewed every five years. If the WGAw file vault burns down or their server crashes, they only owe you $10 for the destruction of your manuscript, which is its declared value as decided by them.

Sounds like a good idea. I will do this as well as sending out my stuff to the US PTO

copyright for dummies
 

We seem to have loads of copyright questions. Does anyone know of a website that explains video and music copyright law in layman's terms?

Dylan,

Well the copyright website answers most questions. And I saw in the store yesterday, a "Copyright for dummies" computer program. Seriously.

But if it were all cut and dried, plain and simple... My wife would be out of work.

And ofcourse it is different for each country (and even state) not
to mention international law....

Copyright Update
 

Serendipity folks,

Just got my Jan issue of Videomaker Magazine. Great article on Copyright that covers most of the latest topics on this forum. Even includes some sample releases.

Other good articles too... worth the trip to the bookstore if you don't subscribe

Bill

Copyright Legalities
 

THE LATEST ( JANUARY 2003) ISSUE OF COMPUTER VIDEOMAKER MAGAZINE, HAS A PRETTY COMPRHENSIVE YET BACIC ARTICLE ON COPYRIGHT LAW. IT STARTS ON PAGE 69 ( 4 PAGES LONG ).


SECOND GOOD ARTICLE IN THE SAME ISSUE IS ON THE FONTS FOR CGs, page 87.

Bruce

A word of caution: whether the result of poor editing or simple errors there are a couple of major problems with the article. I'll write more on this later, but know this:

1. ASCAP and BMI _only_ handle public performance licenses. It doesn't matter whether the DJ, the band or the reception hall has gotten a license from either of these entities. These licenses do NOT permit recording the music played in a video. Incidental recording law is rather obscure and based on fair use concepts. The short version is: incidental recording, i.e. music playing in the background while you're shooting, _probably_ doesn't violate copyright if it is done in connection with legitimate news coverage, and/or if only short excerpts are used. If you use entire songs, or tape for commercial purposes, it probably DOES violate copyright. I am not prepared, at this time and in this forum, to say whether wedding videography that includes music played by the band or DJ would or would not be considered incidental fair use -- there are simply too many variables.

The author of the Computer Videomaker article implies that a BMI or ASCAP license will protect the videographer. He is _wrong_.

2. The article seems to conclude that it might not be worth the trouble to obtain the necessary licenses. This is an extremely DANGEROUS idea. Copyright infringement liability is _strict_ liability, meaning that it is no defense to say, "Gee, I thought it was okay." Infringement liability can include statutory damages as high as $250,000 for each act of infringement, i.e. each separate song recorded may result in a maximum of $250,000 in penalties -- 10 songs = $2,500,000.

Should you risk it? That's a business decision, not a legal one. However, don't assume that, just because you're doing relatively small-time wedding videography, that copyright owners won't sue you. Copyright is a use-it-or-lose it proposition -- failure to enforce a copyright may result in de facto dedication to the public domain, i.e. even though you're a small fish with no money, you still may be get sued. Andrew Lloyd Weber sued a high school in New Jersey for staging an unauthorized production of "Jesus Christ Superstar." The leader of a church choir was sued for infringement when he made 20 copies of a copyright-protected hymn. I routinely sue small businesses for my clients (though for trademark infringement, rarely for copyright) because my client has made the _business decision_ that it is necessary to send a message to potential infringers that they will aggressively defend their intellectual property rights.

You very well may decide that the risk of a law suit is small, and you may even be right. However, the potential for liability is so enormous (just defending a suit can cost in the hundreds of thousands of dollars) that you should not make this decision based on a poorly-edited article published in an amateur video magazine. Talk to a competent IP lawyer in your area -- a consultation will cost from relatively little to absolutely nothing. Talk to your business insurance provider (you DO have general liability insurance, don't you?) and find out the scope of advertising injury coverage (which can, in some jurisidictions, cover copyright infringement lawsuits).

In the US, copyright law is federal law. There is no state or common law copyright. Accordingly, the same law applies throughout all 50 states and US territories and possessions. It may, however, be accorded constructions which differ between circuits, e.g. the 2nd Circuit test for infringement is slightly different from that used by the 9th Circuit.

US law was harmonized with the international Berne Convention in 1979. Accordingly, much of what can be said about foreign law applies in the US as well, all though the converse is not necessarily true. A notable exception is the area of "moral rights," those rights an author has in legitimately-acquired copies of his works. Many countries recognize moral rights; the US does not.

WGA registration is NOT the same thing as copyright registration. It is considered controlling with respect to disputes between WGA members as to who is the owner of a work, and is also evidence of first creation. It does not provide the protections of a federal copyright registration, including legal presumptions of ownership and validity, availability of statutory damages, standing to sue, etc.

Regarding the Moral Rights. Is there anything we can do to get this changed? Write congressmen and senators? I'll write letters every day if it does any good. Maybe we could get together and make a standard letter to get awareness out to the higher ups. Dylan here doesn't have to worry about this. Lucky guy.

Who does the copyright?
 

I just got the green light to do a martial arts training video. If it goes well, we'll be doing a whole series.

My question is, when all is said and done and I deliver an edited tape, is there any copyright issues I need to worry about, or is it all my clients? What if he wants some music or special graphics done? Will I own that or is it his?

This depends entirely on what you and your client agree to. You should have a written contract that spells out exactly who owns what rights to the final product.

In general, rights belong to the creator of the work and that would be you. If original music is written, those rights belong to the composer unless you or your client spelled out in another agreement with the composer who will own the rights etc.

Dpending on the money involved, and considering this may be an on-going relationship, it's worth you while to get help from a lawyer or, at least, look at the copyright site at the Library of Congress Web site.

If you are an independent contractor, absent a written agreement to the contrary, you own the copyright.

If you are an employee, absent a written agreement to the contrary, your employer owns the copyright.

It is absolutely incorrect to say that, in general, rights belong to the creator. In this context, everything depends on the nature of the employment relationship between the videographer and his client. Most videographers are independent contractors, e.g. they own their own "tools," work without supervision, etc. However, I can conceive of situations in which a videographer might be considered an employee from the standpoint of copyright ownership.

With that said, Peter's advice to have a written contract that spells out everything _in advance_ is good advice.

I think the answer you are looking for is, it depends.

If you "sell" him the rights to the video, he will own them.
The other side of that question feels like you are asking who needs to get the copyright for music graphics etc...

When you are making a video for distribution, especially to wide audiences, you need to make sure that EVERYTHING is either nondescript or you (or the client) have the rights to reproduce, which means you created it. This goes for everything from the music and graphics to the clothes worn by the actors and wallpaper in the background. It isn't always a huge deal but I would talk to a legal specialist in copyright law and make sure that those logos on the kickboxing gloves are ok to redistribute (via video) see where I'm heading?
In reality it is usually quite easy to get these permissions if you just call the company in question and tell them what you are doing (and maybe a bribe with a "special thanks" credit at the end).

I guess I would need Paul's further clarification (he is, after all, an attorney specializing in media law), but I've always been under the impression that the copyright belongs to the money. In other words, whoever foots the bill owns the copyright.

The creator brings you a concept and you spend your own money to make it happen, then you own it. The creator brings you a concept and pays you to make it happen, then they own it. Of course I'll defer to Paul for final disposition on this matter. Can't stress this enough: get it in writing!

It would be nice if there were a clear answer to this question, but unfortunately there isn't. Generally the distinction between employee and independent contractor is made by courts using a series of somewhat vague factors that don't give a clear outcome. The flexibility is built into the system because the fact patterns are so varied.

Well Paul and I may have a difference of opinion (and that's why there are judges), or perhaps semantics. I thought/think it is generally correct to say that, in the employment situation described in the initial post -- which seemed clearly to me to describe a client-contractor relationship. If the client were an employer, he would probably not be spoken of as a client.

In CCNV v. Reid (1989) the Supreme Court decided, unanimously, that the employee clause of the Copyright Act cannot be applied to independent contractors. How do you know if you are an independent contractor? There is a handy-dandy 13 factor test and ALL the factors have to be applied in making the determination -- a couple of which Paul points to.

If, as Paul himself points out, most videographers are independent contractors in the sense of CCNV v. Reid, and if most videographers are independent contractors then it would be true, in general, that they own, ipso facto, the rights to their work.

With that said, Paul is indeed right (and I was remiss not to say), that if you are an employee (see same 13 part test) you are not the owner of the rights. And Paul is right to advise that one should never just make assumptions about the status of the employment relationship -- and I think this was the spirit of my hasty comment.

There have been numerous cases in which a hiring party has tried to hijack rights by claiming that they were an employer after the fact of the creation of a work, and so one must be on guard. We agree that contract is the best protection.

Copyright Issues Regarding Cars in Films
 

I don't know if this has been discussed here before, tried a search and couldn't find anything.

I'm working on a short film and there needs to be a shot with a car pulling into a driveway. What exactly are the rules and regulations for what you can and cannot show?

Lets say that I want to show the whole car in frame from the back end. (Audi) . If I black out the Audi logo with gaffer's tape is it still a violation of copyright? Where is the line drawn between what you can and cannot show of a car? I see tons of low budget films that show dozens and dozens of cars and I can't imagine that they cleared the copyright issues for each and every car from dozens of car companies. What if I only show a part of the car, ie...the roof, or the lower end. Still a violation?

If you watch some films, even low budget ones, and there happens to be a scene where a busy street is seen way in the background, and literally hundreds of cars are driving by...surely they didn't need to get permission for each and every car...no?

See, if I only show a tiny piece of the car...no logo displayed, I am still showing the AUDI, so is it still an issue? I just don't see how you're supposed to have a car in a short film without getting copyright permission from the manufacturer, if you even need it.

Any definitive advice on this issue would be appreciated.