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-   -   Suggestion for FAQ Update - Use of Copyrighted Music (https://www.dvinfo.net/forum/taking-care-business/30867-suggestion-faq-update-use-copyrighted-music.html)

Jim Underwood August 23rd, 2004 03:09 AM

Suggestion for FAQ Update - Use of Copyrighted Music
 
I have a suggested change to the Business Forum FAQ:
http://www.dvinfo.net/conf/showthrea...&threadid=8725

It concerns the 2nd question in the Music Acquisition section:
Q: I'm editing a wedding video, the bride and groom want me to use certain music, what are the laws concerning doing this?

The answer provides a link to the below thread. However, the thread is long and winding, and it’s hard to determine the “final answer”.

It seems to me that the “final answer” to this question was posted by Sam Houchins II (see below quote).

I propose the following be adopted as the answer presented in the FAQ:

============================================
For ten or fewer copies of the same video, NO license is required IF the clients (bride and groom) provide the song from their own purchased copy of the song. If you provide the song from your own pool of music, you need a sync. license. This is based on a statement from Harry Fox Agency. You may want to consult with your attorney before using any copyrighted music. This is NOT a legal opinion – use at your own risk. For more information see the following:

DVInfo thread discussing copyright issues:
http://www.dvinfo.net/conf/showthrea...0920#post80920

Harry Fox Agency
http://www.harryfox.com/
==============================================


Here is the actual post by Sam:
http://www.dvinfo.net/conf/showthrea...0920#post80920

Quote:

Sorry if everyone's tired of this subject, but I thought the recent phone call I finally had with a human at Harry Fox's client relations division (where i'd been directed to inquire about obtaining a sync license) was the break in the case needed. Summarized, he explained:

>Mechanical license is not required. Mechanical license only applies to music-only copies of recordings like making / distributing CD's, tapes, records, etc.
>Synchronization is what applies here, syncing music/song to video/images.
>Sync licenses are only obtained through direct negotiations with the publisher(s). There are no fee structures, they can charge anything they want. There can even be four publishers involved for one song. All have to be contacted, all have to agree. One can say $1 per tape, another $40 each, another say $1000 flat fee, another can say no. It also takes alot of lead time to get any answer.
>Here's the kicker... he says that for ten or fewer copies of the same video, NO license is required IF the clients (bride and groom) provide the song from their own purchased copy of the song. If you provide the song from your own pool of music, you need a sync. license.
>Showing a love story synched with the client's music at the reception is ok, no license req'd.
>He agrees this has not been proven in courts nor written in stone, but is generally accepted as the standard. He says it is an oft asked question.
>He even likened it to compiling a cd for someone else. Charging for time and material to do that is also legal as long as the client provides the music and that music's been legally obtained (purchased and owned, not "shared" from downloading, etc.) and is for that client's use. He gave as example companies (in general, not specific names) that provide that very service (music only) operating in legal parameters without mechanical licenses, applying the fair use (personal) concept.
This forum is full of threads on this subject. And in many, if not most, of them, long time forum member and attorney Paul Tauger presents a clear argument that the law as it stands today does NOT allow copyrighted music to be used in wedding videos without a proper license.

However, it seems that the Harry Fox Agency has granted a waiver concerning this. If this seems to be the consensus in this forum, then we could help clarify this long-standing, confusing issue by updating the FAQ. It may even warrant a separate sticky thread.

Dylan Couper August 23rd, 2004 08:48 PM

Good point. I'll make the change shortly, just got a pile of other stuff to get out of the way. If I haven't got it done by Friday, I could use a friendly reminder. :)

John Britt August 23rd, 2004 09:01 PM

Dylan

While I don't question the validity of Sam's post, personally I would recommend trying to get a Harry Fox rep to post this advice here (or allow their name to be attached to a post here) before adopting it as the "final answer." I think we could say from experience that not everything that "is the consensus" among dvinfo.net members is always the right answer. Not that we're not a savvy bunch, but we can't always be right...

Just my 2-cents

Dylan Couper August 23rd, 2004 09:04 PM

John, in copyright matters there is rarely a "final answer/last word", at least, not without a judge... :)

I'll make it a healthy blend of advice. Interesting point about a Harry Fox rep. Might do a little research on that.

John Britt August 23rd, 2004 09:12 PM

You are correct about copyright matters, Dylan; my "final answer" comment was simply a reference to Jim's original post. I think Jim has a good idea, but I think it would be better to try to get a first-hand response from Harry Fox...

Peter Moore August 23rd, 2004 09:24 PM

"He agrees this has not been proven in courts nor written in stone, but is generally accepted as the standard. He says it is an oft asked question."

That right there is the problem. I could be mistaken, but I believe Harry Fox has absolutely nothing to do with commercial recordings. That's the whole reason they can't give you sync rights. It's up to the individual music label, or RIAA, and with those guys suing customers left and right I certainly wouldn't trust them with something like this.

The "final answer" is don't use copyrighted music recordings in your business without permission or without consulting with an attorney to determine if fair use applies.

That's what your FAQ ought to say.

Dylan Couper August 23rd, 2004 09:37 PM

<<<-- Originally posted by Peter Moore :

The "final answer" is don't use copyrighted music recordings in your business without permission or without consulting with an attorney to determine if fair use applies.

That's what your FAQ ought to say. -->>>

Do you know how much bandwidth that would save the forum if people read that before posting new threads? Chris Hurd would probably have enough left over for that DVinfo Viper.

:)

Paul Tauger August 25th, 2004 12:31 PM

<<<-- Originally posted by Dylan Couper : Good point. I'll make the change shortly, just got a pile of other stuff to get out of the way. If I haven't got it done by Friday, I could use a friendly reminder. :) -->>>

Well, hang on one second. The Harry Fox Agency policy is just that -- a policy. It is _not_ the law (though the descriptions re: sync licenses are). The Fox Agency policies apply only to clients that they represent.

Also, as I've said a number of times, my personal feeling is that this kind of use probably would come within fair use doctrine. However, no court has ever decided this issue and, as such, the easiest response is that unauthorized copying, of any kind, constitutes illegal copyright infringement.

Jeff Donald August 25th, 2004 01:47 PM

I think the "final word" is not to get your legal advice off the internet. Consult an attorney. The views expressed here are just opinions and should not be taken as a "final word" or a legal advice.

Paul Tauger August 25th, 2004 02:12 PM

Though I don't provide legal advice to non-clients, I am an attorney -- an intellectual property litigator.

Jim Underwood August 25th, 2004 03:35 PM

Well, I had hoped that the posting from the Harry Fox Agency would help us all, and those who would ask this question in the future. It's a question that gets asked again and again, and the threads tend to be long and winding with a lot of debate.

Without doubt, the best approach is to consult your attorney on any legal issue, this one included. As I stated in my original post here, "this is NOT a legal opinion."

Having said all that, the question is, is there anything we can do to address this issue in a succinct manner that will be of help to future videographers?

There will always be the extreme views, on both sides of the issue:
1. The only answer is to consult your attorney
2. The Harry Fox Agency has answered the question

Can we craft a reasonable FAQ on this issue?

Perhaps something like this:

===============================================
First, you are advised to consult your attorney on this and all legal matters.

Be aware however, that it has been reported unofficially that the Harry Fox Agency has stated that for ten or fewer copies of the same video, NO license is required IF the clients (bride and groom) provide the song from their own purchased copy of the song. If you provide the song from your own pool of music, you need a sync. license.

Neither the Harry Fox Agency statement nor this FAQ is a legal opinion. If you use any information in this FAQ, you do so at your own risk.

This question has been asked many, many times on this forum. This FAQ is the studied result of these posts. Please don't waste our valuable resources (people and bandwidth) by asking again.
===================================================

So, fire away! Your comments please.

Richard Alvarez August 25th, 2004 04:20 PM

Jim,

I'm with the attorneys on this one. NO USE is the only "safe answer". Harry Fox Agency does not represent all musicians, and the statement as written emplies they do.

DISCLAIMER: I am married to a copyright/trademark attorney, and hear enough about both sides of the issue to steer clear of it.

Jim Underwood August 25th, 2004 04:36 PM

NO SAFE ANSWER
 
Richard,

Interesting, I almost used the term "safe" in my last post.

Then I realized there is NO SAFE legal approach. Anyone can sue you for anything anytime, with or without cause. Even if it is frivolous claim, you still have to spend a lot of money defending yourself.

As I stated, there will always be the extreme positions on this, and probably any, legal issue.

I'm just trying to think of something that will be of practical use. If you just say "Consult your attorney", you're still going to get a lot of posts on this issue either disagreeing, or complaining.

I would think one could take the Harry Fox statement to one's attorney, and say, check this out please. At least this is a starting point.

Paul Tauger August 25th, 2004 04:48 PM

Quote:

<<<-- Originally posted by Jim Underwood : Well, I had hoped that the posting from the Harry Fox Agency would help us all, and those who would ask this question in the future. It's a question that gets asked again and again, and the threads tend to be long and winding with a lot of debate.

Without doubt, the best approach is to consult your attorney on any legal issue, this one included. As I stated in my original post here, "this is NOT a legal opinion."

Having said all that, the question is, is there anything we can do to address this issue in a succinct manner that will be of help to future videographers?

There will always be the extreme views, on both sides of the issue:
1. The only answer is to consult your attorney
2. The Harry Fox Agency has answered the question

Can we craft a reasonable FAQ on this issue?

Perhaps something like this:

===============================================
First, you are advised to consult your attorney on this and all legal matters.

Be aware however, that it has been reported unofficially that the Harry Fox Agency has stated that for ten or fewer copies of the same video, NO license is required IF the clients (bride and groom) provide the song from their own purchased copy of the song. If you provide the song from your own pool of music, you need a sync. license.

Neither the Harry Fox Agency statement nor this FAQ is a legal opinion. If you use any information in this FAQ, you do so at your own risk.

This question has been asked many, many times on this forum. This FAQ is the studied result of these posts. Please don't waste our valuable resources (people and bandwidth) by asking again.
===================================================

So, fire away! Your comments please. -->>>
Jim, the Harry Fox Agency policy applies to only their clients. They did not say it is the law, nor is it the law. The problem is, even though HFA may permit this, anyone wishing to use a CD will have to determine whether HFA represents the copyright owner or not.

And, though I do not give legal opinions to non-clients, I will make an exception this time:

United States statutory copyright law does not contain an express "wedding videographers exception" which permits syncing a CD to video provided fewer than 10 copies are distributed. No court has provided a judicial gloss on fair use that has resulted in a bright line rule such as stated above.

Paul N. Tauger, Esq.
[see my bio at www.schnader.com]

This isn't a question of differing opinions on copyright law, but on a misunderstanding of just what it was that HFA said. I haven't seen their statement, but the reproduction of it here makes it appear that HFA will allow this kind use, but is not providing (and cannot provide) a legal opinion as to whether the law permits this kind of use. Note, too, that only licensed attorneys may provide legal opinions as a matter of law.

Chris Thomas August 25th, 2004 05:12 PM

You can probably consult 3 lawyers and get 3 different answers. Let's ask this, anyone every hear of a wedding videographer or couple going to court over their wedding video songs in a private video? Perhaps that is why there is no 'court decision' If no one get sued, no precedent to set over the legal interpretations of Fair use.

I think as much protection as possible, including only bride and groom owned CD's, limited distribution home use only video's will help keep most of us out of court. There is risk even if you do consult an attorney. You will never know the answer, until you blow your family fortune defending your video's in court, and hear what the judge decides. The safest choice is always to use licensed or royalty free music, or you ride the risk that maybe just maybe no one will ever care enough to sue you over what music you use in your video's. The risk is yours to take.

Jim Underwood August 25th, 2004 05:18 PM

NOTICE: THIS IS NOT A LEGAL OPINION
 
Paul,

You clearly represent one of the extreme positions on this issue, and that's fine. I am not, and have not, in any way challenged what you have said from a pure legal point of view.

However, I am confused that you seem to be substantially mis-interpreting what I posted. I thought it was clear English.

I specifically stated that:

1. First, you should consult your attorney.
2. Neither the HFA nor the FAQ is a legal opinion


Why do you imply that I am expressing a legal opinion?
Why do you state that it makes it appear that the HFA statement is a legal opinion?

Please don't put words into my mouth, or into my posts. :-)

I am not an attorney. I am not expressing a legal opinion. I am NOT recommending that anyone use copyrighted music without a license.

However, I can read and write English, and, like everyone else, I'm entitled to my non-legal opinions. :-) If this get's to be an emotional issue, then I will bow out, and you guys can do as you wish, including deleting this thread.

I have nothing to gain one way or the other. I was only trying to help.

Dylan, since you're the FAQ manager, I'm turning this completely over to you. I think I have contributed all that I can. Do as you see fit, including not making any changes to the existing FAQ.

Peter Moore August 25th, 2004 05:28 PM

I don't see anything emotional or confrontation in what Paul wrote and he's absolutely right.

"Having said all that, the question is, is there anything we can do to address this issue in a succinct manner that will be of help to future videographers?"

I believe Paul and I have both given succinct answers to this question and we're both attorneys and we both have experience in copyright law (he much more than I - I'm a year out of law school, but I did almost all of my independent research on copyright law, which you can read in the Northwestern University Law Review if you'd like ;)).

Paul Tauger August 25th, 2004 05:45 PM

Re: NOTICE: THIS IS NOT A LEGAL OPINION
 
Quote:

<<<-- Originally posted by Jim Underwood : Paul,

You clearly represent one of the extreme positions on this issue, and that's fine.
Jim, I don't represent an extreme position. What I stated is simple, clear, black-letter law that is not disputed by anyone.


Quote:

I specifically stated that:

1. First, you should consult your attorney.
2. Neither the HFA nor the FAQ is a legal opinion

Right. The problem is, you are misstating both what HFA said, and the significance of what they said. HFA is not stating their belief as to the state of the law. They are merely stating the HFA policy with respect to the intellectual property that belongs to their clients. I post videos on my website which are freely downloadable. That's my policy. It's not that law that all vides are freely downloadable.

Quote:

Why do you imply that I am expressing a legal opinion?
I don't. My disclaimers re: legal opinions are for my protection -- I can incur significant malpractice liability if I give legal opinions to non-clients.

Quote:

Why do you state that it makes it appear that the HFA statement is a legal opinion?
Because you've written HFA's policy in a FAQ section which deals with videographers' legal right to sync CD music. Black-letter law says you can't (though, again, my personal belief is that fair use would permit it). Just because the law doesn't allow it, doesn't mean that there is no way to use a CD for a soundtrack. You can obtain a license, you can use royalty-free music, or you (apparently) can use music by HFA clients, provided its for 10 or fewer distribution.

The law is not, however, that 10 or fewer distribution copies won't incur infringement liability. The way the HFA material is set out, it makes it seem like there's a difference of opinion -- HFA says you can, and I say you can't.

Quote:

However, I can read and write English, and, like everyone else, I'm entitled to my non-legal opinions. :-) If this get's to be an emotional issue, then I will bow out, and you guys can do as you wish, including deleting this thread.
It's not emotional for me (I guess I need to use more smileys). It is, though, an important issue, because it is central to the ability of wedding videographers to make a living. I think it's fine to say, "here are ways you can use music in your videos." I think it's wrong, though, to say, in effect, "there is a dispute as to whether it is legal or illegal to sync a commercial CD to a video." There's no dispute.

Quote:

I have nothing to gain one way or the other. I was only trying to help.
I appreciate that. So am I.

Quote:

Dylan, since you're the FAQ manager, I'm turning this completely over to you. I think I have contributed all that I can. Do as you see fit, including not making any changes to the existing FAQ. -->>>
If, in fact, HFA permits such I use, I think it's important to mention it in the FAQ, as it's yet one more source for usable music. The point, though, is that it is, in essence, a license extended by HFA with respect to its clients' music, not a right under law. Anyone seeking to take advantage of HFA's policy should confirm that the particular CD (and song) that they propose to use is part of HFA's "stable."

Jeff Donald August 25th, 2004 05:46 PM

To muddy the water even further, I have heard from two different sources recently that HFA has stopped issuing these type of licenses because the volume of questions being generated was swamping their limited staff. I understand they won't even answer questions over the phone and insist all inquiries be in writing.

Dylan Couper August 25th, 2004 07:13 PM

Re: NOTICE: THIS IS NOT A LEGAL OPINION
 
<<<-- Originally posted by Jim Underwood :
Dylan, since you're the FAQ manager, I'm turning this completely over to you. I think I have contributed all that I can. Do as you see fit, including not making any changes to the existing FAQ. -->>>

Dylan is away until Friday at earliest. Will sort it out when back.

Jim Underwood August 25th, 2004 07:26 PM

Re: Re: NOTICE: THIS IS NOT A LEGAL OPINION
 
<<<-- Originally posted by Dylan Couper : Dylan is away until Friday at earliest. Will sort it out when back. -->>>

And who might this be, Dylan's alter-ego? :-)

Chris Hurd August 25th, 2004 08:04 PM

Or his lovely wife, possibly.

I don't think Paul could have stated it more clearly -- he is simply relating the law as it stands. As an attorney, he is very well versed on what is or is not the letter of the law in these matters.

Peter Moore August 25th, 2004 10:28 PM

Right, Jeff, my understanding was that Harry Fox didn't even touch sync licensing. If they've a new policy it would be nice if someone could provide writen documentation of this. I wouldn't put it in an FAQ just from word of mouth.

Dylan Couper August 27th, 2004 06:47 PM

Re: Re: Re: NOTICE: THIS IS NOT A LEGAL OPINION
 
<<<-- Originally posted by Jim Underwood : <<<-- Originally posted by Dylan Couper : Dylan is away until Friday at earliest. Will sort it out when back. -->>>

And who might this be, Dylan's alter-ego? :-) -->>>\


Dylan's evil twin. }:)


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