Steve, he didn't say "here's a service everyone can use", he said "here's an example of a one-stop-shop". Simply an example of how a good music licensing service might work.

Right. It's an example of another opportunity some of us have to make productions but the onerous process makes prohibitive. For the music it carries, the service makes the activities covered able to be done with a license and a much improved level of effort to acquire proper licenses. I've not actually used it yet. YMMV

In a limited market segment such as the example site, you're right. But to extend it to music licenses as a whole, I'm not sure it could work. One of the major issues would be that owners of IP want to retain control over who they license and how their IP is used. A centralized clearance house that handled the paperwork and issued licenses without the need for direct negotiation between the filmmaker and music owner makes that impossible. Supposing you were one of the "Christian" artists represented on that site and the videographer who wished to acquire sync and master licenses to some of your music was planning to use it in the soundtrack of a porno to mock Christianity or in a documentary sharply critical of the surge in Evangelical and Charismatic Christianity - how would that sit with you? If the concept of some sort of mandatory licensing for sync and/or master use rights was created, similar to what exists now with the mandatory mechanical licensing for covers, the owners of the IP would no longer have control over who gets to use it when because a third party has assumed that role and processes licenses for all comers. In order to preserve the owner's "hands-on" control we're right back to direct negotiation between the IP owner and parties who wish to use the music, precisely what we have now.

i never suggested removing approval. In fact I specified it in a prior post as part of the process. Having a small number of clearing houses for sync licenses will make it on par with BMI/SESAC/HFA for performance licensing is needed. It already exists with these smaller ones I've mentioned in the Christian segment. To get a license, you describe the project (among other things). They approve it themselves or get the approval. It's transparent. The process is online, modern, scalable and makes the process affordable for the bread and butter licensing needs of the small producers. The current situation is archaic, oriented around the big projects and is needlessly onerous for the simple ones. It could be fixed without loss of control by IP owners and all markets would benefit. I argue the total market would even expand.

Sync licensing is categorically different from either performance licensing or mechanicals in that the latter are not licensing the IP to be incorporated into a separately copyrighted derivative work. Performance licensing and mechanicals are all about collecting royalties for the use of the work for its intended purpose. Sync licenses are about taking the IP and making it a material part of some new IP owned by another person.

I think small producers shouldn't forget that music IP owners are producing their work out of their own self interest and they're not doing it to benefit the videographer who might want to use it. If they have no interest in selling licenses to you, they're not under any obligation to do so. Certainly it would benefit the videographer for the process to be simpler and cheaper but that's not the issue - the question is, would it benefit the IP owner, adding sufficiently to his bottom line for them to make it worth the hassle of dealing with small producers? I certainly agree with you that it would be nice if it was simple and cheap, I just am not so sure that there are any compelling arguments that it ought to be.

I think this is possibly the most succinct argument of the REAL problem I've heard: balancing the wants of the videographer against the rights and wants of the musical genius that created the music in the first place. We as videographers would quite probably be upset if a music artist decided to download or otherwise acquire our stunning footage of sunsets and beachwalks and slo-mo eagles flying from Vimeo or YouTube and using them in their next national exposure video with NO CREDIT to us.

IMHO, anyone who creates something should have at least SOME say over how it is used, by whom and to promote what. Let's work on streamlining the process for those artists that wish share their creations with us for OUR creative purposes and respect the wishes of those that want NO PART of repurposing of THEIR work.

I never said or implied there was an obligation to license. I'd settle for a response so I could move on.

I disagree with the generalization about music IP owners. Some music IP owners are happy to produce the work for their own purposes and also license it for others. Some do it for fee and others for free.

Just because some music IP owners have no interest in participating sync licensing usage doesn't mean the process for everyone should be costly, geared to them and onerous/biased against anyone (big or small) getting a response to a licensing request. When the IP is registered in an administering organization's catalog and it's there for requests to be had and you don't want it licensed, say "no", have a standing order to say "no", take it out of the catalog or any number of low cost efficient ways of handling it. At least have the decency to respond.

I think the process ought to be improved because IP owners and producers will all benefit by a good system and ecosystem for research, request, review, approval and license/deny issue. That is what some of the cited approaches are doing, including responses of "No". Those of us trying to do it right are the ones putting in the requests for a license. By making it hard, they are losing revenue from those of us who will pay and incenting others to use it without license. Come to think of it, that was one of the key lessons of iTunes, make it easily accessible and reasonably affordable, then people will buy instead of steal.

Sorry for not getting to this sooner. There are a lot of misunderstandings in this thread. I'm going to only address the law, not the comments on whether the law is appropriate or not.

Absolutely not. If the performance includes copyright-protected expression, by videotaping itwithout permission, you are making an authorized copy and an unauthorized derivative work, both of which violate the rights reserved to the copyright owner.

Sorry, but that is not true. There is no, "I was just following orders," exception for copyright infringement liability. If you make the unauthorized copy, you are legally liable, regardless of whether you keep the copy or not.

Correct, though many of the amateur licensing agencies now include a limited videotape right for making an "archival video" of the show. That does not, however, allow distribution, whether for free or not, of copies of the archival video.

Does the school have either a license from BMI or ASCAP for public performance of the music? If not, the school is also violating copyright.

Recording, editing and selling the video would be a violation of copyright.

As a matter of law, it is not, in the least, a gray issue.

You're talking apples and oranges. Whether or not you or the school would be prosecuted for infringement has nothing to do with whether infringement would take place. As a matter of law it would, and scale is irrelevant to anything except the calculation of damages.

And you are completely correct. :)

Exactly right.

Sorry, but this is a gross oversimplification of fair use doctrine. First, the doctrine remains an equitable one, meaning it is committed to the sole discretion of the court, which is not bound by the statute. The statute only offers a guideline, and none of the listed factors are dispositive. In order to determine whether a specific use constitutes fair use, it is necessary to consider the entire body of judicial law addressing the doctrine. With respect to educational fair use, there are a number of niche doctrines (legalese for "gotchas") that have evolved. For example there is a spontaneity requirement, which precludes planned use of protected material. There is also a limitation on the number of copies which may be made or, in this case, the number of people who may witness a public performance of a protected work. I can say with virtual assurance that a rehearsed dance recital presented to the entire school and to which parents are invited would NOT come within educational fair use.

Correct, with the proviso that the specific use complies with the spontaneity requirement, i.e. it's not part of the lesson plan. For example, if a student asks, "how would I choreograph to music from West Side Story?" and the teacher brings in the recording the next day to demonstrate, that would be an example solidly within the educational fair use exception to copyright infringement. If, however, the teacher's syllabus includes a unit on, "Choreographing for Broadway," and has, as a set assignment, choreographing a dance to music from West Side Story, that would not fall within educational fair use and would constitute infringement.

Absolutely correct.

Yes, but that doesn't come within educational fair use. Rather that would come under "scholarship and criticism."


That's just page 1. More later.

I was trying to get to making a distinction between someone who has creative control and a mere technician on that person's staff. The impression I had was that a mere camera operator who had no control over content and did nothing more than point the camera where his employer told him to, adjust the focus, and hit record would not be liable if the material he was directed to photograph infringed. Am I correct that you're saying this is not true, that each member of the technical team producing an infringing work could be held to be individually liable for the infringement? I'm certain those who had creative control, the producers of the infringing content, would certainly be liable but do technicians in their employ who have no control over the content share that liability?

Steve -

I think the distinction and exception as Paul sees it would be for the "independent contractor" - where there is not an employer/employee relationship. Generally with an employee, the doctrine of respondat superior controls - the liability rests with the employer as it takes place under their supervision. Basically "the buck stops" at the employer except under unusual circumstances, and can include liability for simple negligence.

This is why Grandma gets sued by the RIAA for what her grandkids did while visiting, even if she couldn't figure out how to download to save her life... the theory being she should somehow have supervised them better... definitely not the most reasonable situation, but unfortunately it's the sort of thing that happens, and is part of the unpleasant legacy that pretty much sunk the music biz IMO...

Only those who actually infringe, i.e. a gaffer wouldn't incur infringement liability, but the sound recordist would (and, possibly, the boom man). Copyright infringement is strict liability, meaning that it doesn't matter whether your thought what you were doing was non-infringing, or whether someone else hired you to do it, either in the context of a captured employee or an independent contractor. The statute addresses ONLY making an authorized copy. None of the statutory exceptions come remotely close to applying to, "Someone told me to do it."

Yep. Make an unauthorized copy, incur liability. Context is irrelevant unless it comes within fair use.

Neither negligence nor gross negligence are strict liability torts. Copyright, however, is strict liability. Though, as a rule, it is impractical to sue an employee for copyright infringement on the part of the employer, there is absolutely no reason not to do it.

I have disagree. Grandma gets sued for contributory infringement and, usually, the grandma suits get thrown out (though she could get sued in tort for negligent supervision). This is very different from respondeat superior which doesn't exculpate employees but, rather, implicates employers.

Thanks, good to know!

And even the Professionals get sued. Coldplay was sued by Joe Satriani for infringement much as George Harrison was years ago. Coldplay used chords or riffs in a similar sequence to one of Satriani's songs that had been published, and he and many of the people he knows said it WAS his song. Just like Harrison.
Anyway, appearently without admitting anything, Coldplay and Satriani came to a settlement. They didn't say what it is, but it just goes to show, Anybody can be sued for anything even the pros.

NEXT CASE! ;-)

The "you stole my idea" suit is pretty common - like only one person on the entire planet figures out how to string some chords and notes (or words) together in a pleasing, cohesive way... Seinfeld's wife just won (suit against her dismissed) the "copycat" suit over her book on how to get kids to eat vegetables....

BUT, this is different from actually using the finished composition directly. The producers of the Ellen DeGeneris show just got sued for their use of numerous music clips on the show...

So, yep, this goes on at ALL levels, and as long as there are attorneys to cobble up a "theory", and Courts to hear those arguments...

"Anybody can be sued for anything" (with attributions to Don Bloom, who may have borrowed it from me <wink>, and I don't remember where I heard it... or if I made it up... or where I left my glasses...)

intellectual property ... interesting idea.

I know what the law says and I follow it. However, there are a multitude of problems associated with intellectual property protection. Intellectual property issues don't simply apply to creative works such as music or images, the area is much wider.

Here in Switzerland for example an architect got a patent for a certain arrangement of rooms. Something that had been done by others before but noone ever thought of getting it protected. A young group of architects just got sued by this guy for using "his" idea. They didn't even know about him or "his" intellectual property.
A chocolate brand in Germany patented a color!

But it gets more complicated:
Quoted from Wikipedia: Any information that can be represented in binary format is, ipso facto, representable as a number, and therefore if the information itself is illegal in some way, the pure number itself may be illegal.[1][2][3] To date, the idea of a number being illegal has not been tested in the courts.
So - if someone were to use a number that represents copyrighted works they would be breaking the law. (the full article on "illegal numbers" is here: Illegal number - Wikipedia, the free encyclopedia )

Where does the line get drawn? I wholeheartedly agree that music and images cannot be used commercially if the necessary rights have not been obtained. I often have to remind my customers of this fact. However most of them have no concept of this. I sometimes get internal documents which are full of illegally used content. They simply don't care. The clients often get annoyed when I try to educate them. I state in my company's terms of business, that 3rd party rights, of media provided by the client, have been cleared. Here in Switzerland, the term "producer" refers not to me, but to my client. It is my clients responsibility to fill out the proper forms and obtain the rights. I use a lot of production music and always fill out the forms for the client and send it to them. What they do with it, I cannot control. If they send it in - good. If not - I have no way of knowing. If they decide to distribute it in another form than originally intended; I have no way of knowing. For example: I use production music for a clip for an internal presentation, to be shown to all the sales people and never again. I fill out the form, they send it in and pay the royalties. Later the client decides, that he likes the clip so much that he puts it on the web. I don't hear about that and they don't clear the music rights. There is NOTHING I can do about that. It happens all the time.

Intellectual property rights are good, but they need to re-adjust to reality.

If a hairdresser here in Switzerland has a radio in his salon, he might receive a visit from our copyright management organisation (SUISA) and he will be charged for public performance. The same applies to taxis and even merry-go-rounds. Playing music on a merry-go-round costs about 25 $ per day...
I ivited the director of IFPI (International Federation Of Producers Of Phonograms And Videograms) to give a speech about the use of media to the employees and clients of my former company. On this occasion I asked him, what if I play music on my car stereo while driving with the window open? do I need to pay for a public performance? He laughed and said: Theroretically - yes.

Reality is: all schools or hobby clubs that have public performances use media illegally. no matter if they sell tickets for it or not.
If I walk down main street on a busy saturday afternoon shopping spree, whistling a Michael Jackson tune (something I would never do) I am breaking the law.

While I agree that common sense should be used, where is the line? Does a sound-alike break the law if it sounds just like a famous tune but is slightly different? It still aims to benefit from the popularity of the tune, does it not? Therefore it is using intellectual property that belongs to someone else.

I try my best to respect the law and keep clients informed and urge them to pay for the rights. Sometimes they get quite annoyed by my insistence.

I think we will see a change in the intellectual property rights legislation over the next few years. We will probably see an increase in harsh enforcement at first but over time the law will change. I see no other way. Under the current laws, almost all consumers are criminals. There has to be some adjustment, that allows intellectual property to be safeguarded in some way and its usage to be managable in an easy fashion. I don't have the solution - there are smarter people than me that will figure it out. If not - the market will.

Some interesting reading about the issue is here:

(Page 1 of 36) - The Role of the World Intellectual Property Organization: Changing International Narratives on Intellectual Property authored by Halbert, Debora.

Chomsky on "Intellectual Property" - alt.fan.noam-chomsky | Google Groups

"Intellectual Property" applies to four distinct areas:

1. Copyright: the protection of the expression of ideas.
2. Trademark: the protection of a word, design, phrase or combinations thereof that protect against consumer confusion as to the source of goods or services in a commercial context.
3. Patent: the protection of a novel, useful method or process.
4. Trade Secret: the protection of business secrets that would give a competitor a commercial advantage if disclosed.

A number of treaties and international conventions have made these definitions nearly universal.

I don't know to what you are referring, but a universal requirement for patent protection is novelty, i.e. it must be something new.

Infringement doesn't have to be intentional to result in liability. Patent, trademark and copyright confer a limited monopoly on the related intellectual property.

No, they obtained a trademark on the color with respect to specific goods.

Well, there's your first problem. ;)

That's because the idea is ridiculous. The digital representation of protected expression is subject to copyright the same as the analog representation of protected expression. A single number, by itself, is not protectable in any form.

A number is not a protectable work of expression. Period.

The line gets drawn at whether the work in question is protectable expression. Book titles are not protectable expression. Mathematical formulae are not protectable expression. A couple of numbers are not protectable expression.

Copyright protection extends beyond commercial use.

There is no such thing as, "illegal content." Ownership of copyright-protected expression without permission is not, in most cases, violative of the law. Copyright protects copying, preparation of derivative works, distribution, performance and display. It is not illegal to own a pirated copy of protected expression.

I can't speak to Swiss law but, generally, under the Berne Convention (of which Switzerland is a member), anyone making an unauthorized copy of protected expression is liable for infringement, and that would include you. A contractual disclaimer is insufficient.

There is some update needed, but not in the sense you think.

Public performance is a right reserved to the copyright owner.

And he is somewhat correct. However, there are other legal principles at play that would obviate liability.

I can't speak to Switzerland, but here in the U.S., all schools and clubs obtain performance rights.

As I said, there are other legal principles that obviate liability.

And just whose common sense do you think should be used?

Possibly. Copyright infringement results from copying an original. If the original is copied, differences are irrelevant.

See above.

I'm sorry, but, no, most consumers are not criminals, nor are most consumers violating intellectual property rights.

With all due respect, before you criticize intellectual property protection, I'd recommend that you learn quite a bit more about it.

Thank you Paul for carefully reading and analyzing my post. I know enough about intellectual property to do my job properly. Which does not mean I always follow the law to the letter... (I sometimes drive faster than I should or park illegally)
I always consider the damage (... I think I can hear your keyboard clicking ...) Yes - I am probably wrong in doing so, but if a client hands me an internal document with images in it that he has no right to use, and he asks me to make a copy so that we can discuss the project, I don't have a problem with that.
Last year I had a different situation. An international corporation asked me to copy a clip from a major Hollywood film, so that they can incorporate it into their Powerpoint presentation at their employee motivation meeting. I refused and passed the job on to someone else, actually I referred them to him (not to incriminate myself)

But I must say I am impressed that all the schools and clubs in the US are completely aware of these issues and clear the rights. Chapeau!

As a photographer as well as a film maker, I get confronted with these issues often. My "strategy" is this: If a client pays me to do photographs for him, he pays for my time to shoot, process and deliver the images. I get paid well for this. Whatever he wants to do with them afterwards is his business. So if he likes them so much that he makes a whole campaign out of it - fine (I know that I am fairly alone in the trade with this attitude)
But I take it further - if I commission a composer to create music for a film, I pay him for his work - I pay well. If the film gets distributed further than initially planned - good - but the composer doesn't get more money. Neither do I. These points I make clear from the start. And we don't pay the rights management organisation either... And that's where it gets tricky - I am limited to use only composers that are not members of that organisation. Because if they are they have to declare and register the track. But since many are frustrated with SUISA (the swiss foundation for music rights) that they either never join or leave.
Maybe it works better in the States, but here... you call 3 times to find out how much for this and that and you get 3 different quotes... Since the client gets billed, not me this is really difficult. For example: A client has an event for about 300 invited guests, no general public admitted, so the exact number of people attending is clear. I produced 13 film segments for this once only perfomance. The filmed performance and the 13 clips would then be distributed widely on DVD. OK - to give my client an idea about the cost we called- the cost for rights for the DVDs was approx. 90 cents each (if memory serves me right - could be more though) They got distributed all over the world, about 5000 copies. OK - no problem there. When we wanted to know how much the rights would be for the perfomance for the 300 people - we were quoted an absolutely ridiculous price in the thousands. We didn't even tell the client but called again, getting quoted a different price - for the second quote they used a different tariff. The third call (and again different tariff) finally gave a reasonable quote of about 1300 $, still a lot but ok... We did the show as planned. A few months later I get an angry phonecall from the client who got a bill for over 13'000 for the performance. I called SUISA and 2 minutes later they told me that the client will receive a new bill for - wait for it.... - about 300 $... less than we anticipated. Now - even though I might be happy about that, I am fortunate that I have such a good understanding with the client and that he checks his bills properly. Others might just have paid and felt bad about the production company.
Another client for whom we produced a weekly 90" commercial with always the same music, aired on local and regional stations, received a bill for about 130'000 $ . I called SUISA again and explained that we used a composer who is not a member, when they asked his name, they said they never heard of him. "of course" I said "because he is not a member". They asked for a written down version (the notes on paper - don't know what that is called - transscript?) I asked who will pay for the time to do this because the entire track is composed on the computer... OK - to cut a long story short, the vice director of SUISA came to us and I showed him the composer and the track on pro tools. He was satisfied. Meanwhile they threatened to take legal action against my client, who understandably was getting seriously annoyed... another 2 months later and tons of phonecalls later the issue simply evaporated into thin air...

Whats my point? Above examples illustrate that even the organisation that does nothing other than protect musicians rights doesn't even understand what applies when. How can the clients?

We used to always need a SUISA number for each commercial that we sent to the stations, this number was included in the tape report and on the tape and the cover. a percentage of the airtime cost was for the music rights.
A few years ago, this was suddenly not necessary anymore... except for the national TV station. How can they manage the rights and pay the composers if they don't even know when and where the stuff gets aired??? I asked them - they did not know...

PFFFFFHHHH - I really didn't mean to write such a long post, but this issue gets me going. I am trying to do the right thing, even though some my clients and many of my competitors couldn't care less.

The whole thing should be reasonable and easy to handle. And there will be changes - which way? I don't know , I leave that up to Paul... ;-) If the changes will work? - the way people apply the rules will show.

Also with all due respect, you missed entirely Oliver's point. Entirely...

Oliver's point was that IP law needed reformation. Some of it does, but the examples given in his post were simply not correct and don't identify those areas that need reform.

Those in Europe will probably be aware of EasyGroup who own Easyjet. Their company branding & logo is all orange & Orange the Telco tried to prevent them starting up a mobile phone company called naturally enough EasyMobile that used the colour orange in their branding. BBC NEWS | Business | Orange colour clash set for court What made this particularly hilarious is that Easygroup itself is very protective of the common English word 'Easy' & pursues other companies who try to use Easythis or Easythat as their company names.

I have a problem applying the reasoning/definitions/purposes of a synchronization license to the specific application of videotaping a live musical performance. In this case, there is no "synching" involved. It is, unfortunately to my perception until you guys educate me, hardly any different in purpose/accomplishment for the copyright holder than a phonorecord created with a mechanical license of a licensed or exempted live performance. There is no more risk to the artist's work being associated with unseemly images than was allowed by the performance license or exemption allowing the performance in the first place. There is no more copying than what could be covered by a mechanical license (which is MUCH easier to secure). Since there is no reference/definition of the terms mechanical or synchronization licenses specifically in the Copyright Title 17 law, I'm left to flounder with individual sites' definitions... which again, seem to miss the specific example of video taping live authorized musical performances. Bottom line is, I'm suggesting a mechanical license seems like it ought to be made to be allowed to fit such a need as to record and make/distribute video copies of a legal, live musical performance, if no adiitional images are to be synched with the music

3. WHAT IS A SYNCHRONIZATION LICENSE...
Often referred to as a "Synch" license, a Synchronization License allows the user to reproduce a musical composition "in connection with" or "in timed relation with" a visual image, e.g., motion picture, video, advertising commercial.

For example, if you wish to use the song, "Ain't Nothing Like The Real Thing" on a beverage commercial, you must first obtain a Synchronization License from the copyright owner of the music....Signature Sound: Music Clearance & Licensing- 11 Most Asked Questions

Synchronization License
Music Publishers issue licenses as copyright owner or his agent, usually to a producer, granting the right to synchronize the musical composition in timed relation with audio-visual images on film or videotape.
BMI.com | Music Licensing | Types of Copyright

Perhaps the remining issue would be the creation of a new, derivative work, which is a guaranteed, secured right of the original copyright holder.

The term "synchonization" goes back many years to the early days of the first "talkies" where movie sound tracks were distributed to the theatres on separate media (disks) from the film and the two were played together in synchronization for the performance. Today the term hangs on even though the technology to get the sound track in sync with the image has changed. When you shoot a video of a music performance, the sound of the music is recorded in synch with the pictures you're recording. When you edit, you make conscious decisions of how the soundtrack lines up with the picture, what images are on screen while a certain set of notes is playing - it's been "synched" even if the picture is just a static shot of the band that is playing the music, If you lay in background music under a dramatic scene, the music is explicitly placed in the soundtrack in exact relation to the picture, it's been synchonized. If you play a theme as the credits roll, again the music has been consciously positioned with respect to picture - they're synched. The images the license talks about are not ADDITIONAL images beyond those of the performer(s), they're having ANY images of anything at all appear along with the music. Essentially it boils down to, for all practical purposes, with very few exceptions, if music is part of the soundtrack of a film or video, no matter what role it has in the soundtrack, it has been synced to the picture and you need the synch license from the copyright holder (publisher or composer/lyricist).

Mechanical licenses deal with distributing audio recordings, solely as audio recordings, without any accompaning images. When a band records a song, the mechanical is what allows them to make and sell copies of the resulting CD. Mechanicals have almost nothing to do with film/video soundtracks.

Thanks for the history lesson, Steve. Learning the "why's" of things helps it sink into my brain and for it to stick there.
As I've poked around and read, it appears to me that video has been sorely left out in the cold as a medium to have access to the use of music. Why congress should feel that they should compel copyright holders to allow musicians to record/distribute their songs in audio format, and yet not equally allow for that recording to be on the soudtrak of a video still escapes my reasoning synapses. Especially, as expressed above, when there would only be images of the performers themselves legally performing the music, or in the case of a wedding, recording an event where the music was legally being played.
I so appreciate those in the know who've taken the effort to beat it into our heads the legal rights and wrongs so we can come to grips with it and adhere to it.
Perhaps congress will someday extend the usage exemptions to a fairer, larger circle of media to include video. Again, to compel audio reproductions, but to exclude video is where the unfairness gets me. If audio recording/distribution were as equally uncompelled, then there would be no inequity to my mind. I still just don't see how the one can be justified and the other condemned.
God bless...

I think one problem with your view lies in coming to grips with the idea than an event or wedding videographer is more than a simple passive recorder of the event. You are, in fact, a producer of an audiovideo work that tells a story. It may be a fictional story or it may be a representation of factual events but it goes far beyond a mere record of events in front of the camera and becomes a work in its own right. To use music in telling the story, even if it was part of the event being video'ed, is taking another artist's work and using it as an element of your own. As such, the original artist that created the music deserves full compensation for the use of his property, including the right to deny you the use of it for if he so wishes.

As for music at a wedding or a corporate event being legal, maybe so and maybe not. Did they actually pay performance royalties on all the music that was played? They are supposed to but but that's honored more in the breech than in the practice I think.

I can only speak for the UK, but the various agencies here do make sure people know licenses should be in force - obviously, people take advantage, but they are legitimate business expenses. A venue local to me have been doing it for years, and the big sticker from the copyright agency is up on the office wall. The trouble is, this license is for playing music to the public on their premises, and the copyright agency just realised there is a theatre in the building. The owners, confident in their belief they were licensed, just found out that for over 15 years, they've been operating illegally. This year, the new charges will kick in - the agency accepting that it was a genuine mistake.

If you read a CD label - then the list of things you can use it for are quite limited. The fact that we do use them outside of that wording isn't justification for doing it.

While you speak accurately of my aspirations, you overstate my current skill, lol. The best I can offer is in fact a "documentary" style passive recording, though steady with 2 cameras, corrected coloring/lighting, and including a good sound recording. Even this style of heavily factual/minimally creative recording of a legal event onto video is not allowed in its entirety if copyrighted material is in play.
I would agree (I know adherence does not require agreement, btw) wholeheartedly with this concept if it were fairly applied across the board. But for some reason, Congress has deemed it in the public's intrerest to compel those same copyright owners to allow people to pay a set, reasonable fee to perform, record, and distribute new audio recordings of those same protected works yet it has left video out in the cold. Even those same legal performances can't be recorded onto video, even if for an historical record purpose. I'm suggesting that logically, if the performance is legal, then it should be legal to videographically make an historical record of the event, and payment be made to the copyright holder again in a similar fashion as a mechanical license is compelled to be made available.

Seperate can of worms, lol, but since you opened it, let me stir it with a stick...
The business that typically provides space for events like weddings/receptions should hold blanket performance licenses to cover their own rears because they're as much responsible for music being played in their establishment as those actually performing/playing the music, and apparently it's actually the business that's more often than not the party sued, if there's suing to be done...
and
Personal use allows for an audience of, "a normal circle of a family and its social acquaintances." I'd like it to be demonstrated why a wedding/reception would not fall under the category of an event solely attended by, "a normal circle of a family and its social acquaintances," and therefore allow for one of those in the, "normal circle of a family and its social acquaintances," to either perform music for that, "normal circle of a family and its social acquaintances," or to play personal legal copies of music for that, "normal circle of a family and its social acquaintances."

Thanks for you thoughts/comments heretofore, Steve.
God bless...

The UK is very fortunate as the relevant bodies that collect fees on behalf of the music copyright holders have got their acts together & actually made it relatively straightforward for the correct licences to be purchased for recording of copyright works (live or recorded) used at weddings & other events. You purchase a hologram sticker which is applied to the DVD/BluRay disk Limited Manufacture (LM)

Unfortunately the PRS/MCPS haven't yet caught up with the Internet & there is no such straightforward licensing scheme for limited use on Internet sites in e.g. a showreel

The key element is that a performance is not a derivative work that can carry its own copyright - performances are not copyrightable at all - but a film or video recording of the performance is.

A venue or a hired DJ that provides music does not qualify as "personal use." Rather it is a commercial music service that is being offered to the general public. The fact that you have contracted with them to provide music to your personal circle of friends and family does not mean that the music becomes your music offered by you to your personal friends and family. It still the commercial distribution of music and you are just one of the presumably many clients who avail themselves of those services. If you invite people into your home and play music for them from your personal library, no problem. If one of the guests acts as DJ, still no problem. But if you hire a DJ to come in and bring HIS library, he is a commercial vendor of entertainment, the music is no longer being used for the personal entertainment by the owner of the recordings, and he needs to license the music he plays for you. The fact he is playing it for invited guests at a private gathering doesn't change that or make it the personal use of the party hosts. The licensing is not your responsibility but the DJ's. Remember that buying a CD only gives you ownership of the physical plastic disk and a license to listen to the music recorded on it - you acquire no ownership or performance rights to the music itself.

And in that same vein, when you are a videographer recording an event or wedding, whether you are a major player or just a weekend semi-pro, you become a distributor of video recordings, albeit probably with a relatively limited circulation. If those recordings contain other copyrightable work, you are effectively in the same boat as the venue or DJ above. Even if the music played was valid personal use of the event organizer or host, it's not YOUR personal use and since you're the one making the copies, your use is what counts. You can't get around it - when you make a film or video of a performance, you are making a derivative work and distributing copies of same. Mechanicals are not liceses for derivative works because audio recordings are not derivative - in fact, I believe the provisions of the statuory mechanical license specifically prohibit any substantial alteration of the orginal music. But a film or video of a performance is more than just a reproduction of the music itself and the whole is quite different from the original music by virtue of the added images.

US Copyright already prevents legally created derivative works from creating a new copyright that absorbs the rights of the pre-existing work, if I understand it correctly, as it's written below in the US Title 17 Copyright Law. So if the law were to legalize video recording of live performances, the mechanism is already in place to protect the pre-existing copyright. Again, I'm desiring equal compulsory access for video that audio recordings already enjoy, subject to the same restrictions the performance and mechanical licenses impose; that is, not being able to change the copyrighted work, but enjoy the same compulsory access, with set fees. I still don't see what logic can be applied to compel performance and mechanical licensing for audio only, and leave video recording (straight recording of the performance, not adding additional images apart from the performance itself) out in the cold. It's merely an historical record of the licensed, approved (via the performance rights: either through license or exemption) images as they occurred. I'm not arguing that it's allowed to do this now. I agree that it's not. I'm arguing the logic that if audio recordings can be compulsory, then the same reasoning should allow this type of actual historical video in the door as well.
"§ 103 · Subject matter of copyright:
Compilations and derivative works...
...(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material."

I proposed the scenario where the performer of the music was not hired, but a member of the, "normal circle of a family and its social acquaintances," so they would be performing amongst themselves, either by playing from their own Ipod, or singing a song or playing an instrument from amongst their own members, for their own members. I have not noted in the statute, the requirement that the performance be limited to literally in home use to be "personal" not "public,", but rather identifies the audience instead of the venue (in regards to the performance of copyrighted music).

Regarding hiring a performer or DJ and having the legalities covered, what I mean to suggest is that the task of securing a performance license may not be so onerous as might be imagined, and should already be covered without any further action needed by the family/performers; in that, businesses that regularly hire out their space for gatherings like weddings/receptions, with or without providing the actual performers (musicians or DJ's), but where music is typically performed/played, those businesses should already be carrying blanket performance licenses. If the wedding party has hired the services of a performer, just asking the business providing the space should lead to the discovery that the performance licensing is already provided.

The mere copying of the music to video tape/memory is illegal, to my understanding, before you even get to the distribution stage, either by the videographer or the owner of a legal copy of a phonorecord.

Note: of course, as you know, there are differences between performing, copying (recording), and distributing. The DJ's probably just performing, whereas the videographer is copying and eventually distributing.


I would love the law to allow for video to record the music, in the case where the music is not changed, and where the "added" images are limited to the images as they occured at a legal performance, and that this allowance be compulsory as is allowed for audio recordings. I still see a disparity of logic why one is allowed and the other is not.

I'm sorry if I've still missed a point you've made and either haven't rebutted or accepted it, or incorrectly rebutted it in ignorance.
God bless!

It really has nothing to do with what congress compels copyright holders to do. Congress has basically said that the creator of a work has the right to determine how that work is copied ("copyright").

Copyright music is used all the time in video - look at commercials, major video productions, movies, etc. and they pay big money for it. What does not exist at this time is an affordable method of securing music for your production.

If you want to hire a band/musician to record a version of a popular song for inclusion in your video, it can be done fairly inexpensively. I've done that before - we used "Who'll Stop The Rain" by John Fogarty. While we could not use the recording by CCR, we could make our own recording. It was just a matter of paperwork and a small check.

But Congress did not leave it totally in the copyright holder's hands to control how the work is copied. Of course, in the case of music, Congress at first not only gave the exclusive rights of the owner of a copyright to reproduce the work (copy), but also to exclusively prepare derivative works, distribute copies, and to publicly perform, display, or digitally transmit the work. First they granted the exclusionary right, then they semi-repealed some of those rights and compelled the exclusionary right holder to share some of those rights with others. I'm suggesting that whatever logic I can come up with that justifies taking away some of the exclusionary rights one has just granted a few paragraphs prior, very reasonably confers over, logically, to include todays technology/usablility of video to record a legal performance. Congress gave the exclusionary right, and then turned around and compelled the exclusive copyright holders to allow certain things, for some reason. That reason that was applied, should reasonably justify a documentary style video of a legal performance.

In a narrower (simpler?) sense, I'm advocating for compulsory licenses to be made available to actually videograhically record the actual legal performance, not for using the music as a backdrop/overlay for a greater work. Especially in the case of a school concert or wedding/reception, there can be such a number of different works controlled by different entities, with no compulsion or set fees at all, just because video is the medium, that it becomes prohibitive if not outright denied. Yet, again, I assert that a "documentary" style videoing of the legal performance does no more to infringe on the copyright holder's property than the compulsory performance/mechanical license that would be/could be issued for the same performance, as has been mandated by Congress.

This seems reaonable to me, though again I acknowledge and emphasize that this is not how it currently is.

Put yourself in the position of the songwriters and music publishers who earns their living by licensing the use of their work. Why should he be forced to accept less than fair market value for his work just in order to make it accessible to you or to make profitable for you to shoot videos of its performance when you charge a rate your clients will accept? As an event videogrpaher you may feel your video work is worth $1000 per hour and you may have clients who are willing and eager to pay that amount because they feel you're really, really that good and worth every penny ... would it be fair for Congress to legislate that you can charge your clients no more than $10 per hour just so Joe Sixpack can afford your services when he wants you to shoot his wedding? (Alas, in these days of political correctness someone would probably argue that your high prices unfairly discriminate against the 'common man'.) That's what you are asking they do with regard to the music you wish to film - to force a price low enough that you can afford it. It's not that the present cost is unreasonable, it's just that you (or your clients when you attempt pass it through to them in the form of higher prices) don't want to pay the fair market value for the songwriter's labour.

Just to toss in a twist, look up "incidental" - this is a category that Steve didn't cover, because it's a really grey area...

If you play your own music, you're fine... check.
If your friend comes in and DJ's for you, fine...check. (But what if he's a "pro" DJ and trading services with you, or even just doing it 'cause he's a good friend?)
If you hire a DJ, he is responsible for clearances, and is supposed to have a license to "perform" for profit, for which he pays a fee... check.
If you hire out a venue, and they play music, they probably have a license... check.


NOW, and this is the twist up that we've wrangled over at length, without a conclusion that satisfies everyone... so let's not thrash it too much, OK? It's a mind bender for the "video guy", thus why it gets hashed around.

You hire a Videographer to document an event - he makes NO choices whatsoever about WHAT is performed, and is making no changes to the ambient audio, which is by nature "sync'd" to the performance (meaning whatever audio he captures is in effect just "what happened", or incidental to the visuals captured). Part of that "documentation" includes a DJ playing (hopefully licensed, but is the videographer supposed to go aroud asking "show me your papers?"). Effectively the videographer CAN'T remove the audio being captured unless he's "looping" the audio. He may make minor edits for continuity or timing, but the end result "documents an event", as it happened, just as he was hired to do.

Is the videographer responsible for licensing? HMMMMM. The "copyrighted" material is incidental to the CONTENT of the video, which is the EVENT, and the videographer had NO control over what was played (and thus captured). Really hard to argue when and how liability/responsibility attaches. Still, you see those blurry logos on lots of TV shows... incidental or not.

<Tangential issue - I'm deliberately leaving out "audio sweetening", as in adding a sync'd sound track, for a reason... as I listen to an "indy" commercial on a cable channel with the hook from "Day Tripper" subtly playing in the background... I doubt it's "cleared", and I've been catching a LOT of these lately... I'm sure Chase clears their music that plays in their commercials, but probably not these "little" business entities...>

I'd argue (aside from the above tangent) the answer is no... admittedly this is problematic if you're making copies of the event video for profit, but I contend that the "buyer" of the copies/services is NOT asking you to duplicate a copyrighted work (although technically speaking you end up doing so by circumstance, as does any private party who brings a cell phone or camera to an "event", and not one of them paid a license fee, nor can you argue they have to, up until it posts on You Tube, another wrench in the current state of licensing...). You are documenting AN EVENT, not "copying a work, the any copyrighted material/music is incidental.


Just to add some perspective, remember that a "sound track" is carefully chosen, little "sound bites" and audio sweetening to create an ambience in a 'big movie". Audio is a complete "department", just as companies have deparments dedicated to "product placement" so that soda can you see (and you see the logo in ANY scene) isn't generic, that laptop has the "apple logo" right side up (when it's upside down on most commercially available ones IIRC), and so on (though I saw a computer on a kids show with a PEAR logo... he he he). Each element is carefully chosen - something an event videographer can't do, isn't expected to do, and generally WON'T do!

IMO this creates a "loophole" of sorts, especially when you consider that if a licensing fee has already been paid for the "performance", the copyright holder has ALREADY recieved compensation - I know the "legal theory" is that they could or should be compensated for EVERY "needle drop" (every time anyone anywhere listens to the licensed work), but as a practical matter, this is hard if not impossible to to achieve (if you had to pay EVERY time you listened to a CD or MP3, instead of "buying" the right to listen anytime you wanted, would you buy ANY music??).

There are many aspects here, but conceptually, as long as a copyright holder is compensated from the licensing of the performance, if they did not prohibit videotaping of that specific performance, the horse is out of the barn IMO...

I don't want to have this thread get too crazy, but these aspects of copyright ARE grey areas, so it's fair to discuss. FWIW, Steve is my "evil twin" on this subject, and while we love the intellectual discourse, it's probably a bit much for most people to watch the "mindwrestling"! I appreciate Steve a LOT both as an alternative viewpont and as a worthy "adversary" - we're like the two guys at the "virtual bar" debating whether Wonder Woman or Catwoman is "hotter" <wink>!

Hope this helps put a handle on a "tricky" subject, you might also search "Carterphone" here for another thread that Chris (our host) started that adds further intellectual examination to the theoretical aspects, and might be worth the read!

In a free market everyone MUST (and I do mean MUST!!) have a right to price their "services" or "product" as they see fit - the market can and will determine whether: A) the price is fair and B) whether that "property" (as in IP, service, or product) prospers of fades away.

As a practical matter, you can argue over whether a "free market" works or not, I'd say maybe it's not the "best", but others are worse... so there ya go.

As a simple practical matter, If you are an IP owner/creator, you want to be able to benefit from and "control" your creative work, and you should respect the same rights to your "fellow creators". Only fair, right? THAT should be the bottom line, and the problem arises when the technology leapfrogs the rights structure, as it has with the digital revolution. The principles remain the same, but when it's all 1's and 0's, the "control" (and thus the trail for compensation to get back to the creator) becomes more difficult, simply because the methodology to "copy" 1's and 0's is now democratized and ubiquitous.

Steve, to me your wonderfull argument for fairness also argues against audio compulsory performance/mechanical licensing, and yet there it is, a Congressionally mandated compulsion. My assertion is that whatever the reasoning for creating compulsory performance/mechanical licensing should be expanded to include documentary style videography that captures legal performances of music, because such a video does no more damage than the performance/mechanical allowances that are forced upon the copyright holder. If you compel the one side, then such a video should be allowed as well, as it does no more damage, or as your argument suggests, no compulsion should be imposed at all. That would be equally fair to video and the copyright holder as well. As for fair pricing, Congress has set the price of what's fair for audio, so why can't they do the same for video? If they can't do it for video, why should they do it for audio?

I wonder if allowances haven't been historically made for compulsory audio performances/recordings/distribution, because historically, the ability to perform and soon thereafter to create recordings has become so widespread and such common practice, as to require a mandatory system to be set up to allow for a legal pathway, to avoid a large percentage of its population being criminalized and mired in lawsuits. Otherwise, pretty soon, a musician's living would be best made in the courtroom defending his copyright, moreso than peddling his work professionally. Or, on the other hand, the original work should become so dispersed as to become worthless to its creator. Given an honest avenue, a large portion of people will gladly pay an affordable fee, and follow a modest path to do so (and thus eviscerate the pirate trade). If this reason of necessity has been a motivation to create the compulsory concept for audio performances/recordings in the past, then perhaps the technology and proliferation of video capturing devices, and the subsequent ease of DVD creation/distribution is giving rise to a new necessity of creating a legal path for the swell of video users. The balance will be struck... if everyone can capture with their video device, and everyone can create DVD's, then no one will be paying $1,000 for the service of a professional, and the copyright holder won't feel like they're missing out on a piece of the valuable video pie. But if they want a piece of the 1,000's of users who are doing it themselves, like the swell of people that were swapping music files and creating their own compilation discs, and converting their music collections into other formats, then the law had better compel a system to allow those people to reasonably participate in a process to pay a fair price to include video.

Compel both or neither is my assertion.
God bless

My understanding is that according to current law and its interpretation/application/enforcement, such incidental recording is in fact at face value a violation of the copyright holder's base rights and copyright law before amendment. It is exactly one of the considerations that spawned the Fair Use exemption for news reporters out in the field who must report the news, but be exempt from any incidental copyright work recorded during the report. The key, in my understanding in this scenario is, "(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work." A 60 second news report about a primary election, with some copyrighted work incidentally playing in the background, is very different than an entire first dance at a wedding reception between a bride and groom while an entire copyrighted song/performance plays in the background; or even a news report on the opening of Cats on Broadway, but the report coverage includes the entire first act; or a report on a magic or comedy show, and the report includes the piece de resistance or the funniest 3 jokes in the whole 10 minute act.

Furthermore, in the case of wedding/reception footage, the ambient sounds can, in fact, very often be replaced with licensed music to great effect.

This is my understanding how incidental recording (copying) and reporting (transmitting/distributing/pubicly performing) is being handled today. Not as much grey area as you're suggesting, really. Some of my examples may sem to fly in the face of what I've been advocating in the above posts, but I'm specifically trying to emphasize the concept of incidental recording. Furthermore, incidental recording also usually begs for 0 compensation to the copyright holder, whereas I'm begging for a compulsory, available licensing system for video use of music like audio performing/recording/distributing enjoys.

I think currently performing artists should be able to restrict the distribution of their live performances, to maximize their live performance sales.

I think the use of past recorded performances should be completely at the discretion of the performers, but in the case of legal playings, video of the event where it's being legally played should have compulsory license options.

I think that new performances of one's music by other performers should completely be at the discretion of the copyright holder, but since Congress has mandated compulsory licenses for these new performances, video of those performances should have compulsory licensing abilities as well, with the additional permission of the new performers, since that video does no more damage to the copyright holder than the audio compulsory licensing/exemptions do.

God bless

Ahhh that's the rub! Is the video about the fact an event took place or is it about the specific content OF the event? If I'm shooting a recital, what is important is not the fact that a recital happened with a certain person - simply a still photograph of a poster advertising it or an on-screen placard would be sufficient for that. What is important is the music that was played and how the performer played it - the music IS the topic of the video, not incidental to it. The viewer of the video is seeing a created musical story that recreates the experience of being there, not a mere record of the event having happened. If it's a band playing on stage at a corporate event, what the video is about is the music, the performer, the audience, and the environment in which it all took place. People will watch the video with the intent of simulating their presence at the original performance. As such, the music itself is fundamental to the meaning of the video and again is in no way merely incidental. Or again, nothing would look sillier than a sequence of the Bride and her father dancing to silence at her wedding reception - the music is intrinsic to the meaning and purpose of the video, not incidental to it. This really is in no way different from the role of music in a TV show such as "Glee" or a classic Fred Astaire or Gene Kelly song and dance number from a 40's musical. And just like the producers of Glee had to license Madonna's songs that were used in the show they made for their purposes, so we have to license them to use them in ours, regardless of WHY we're making the show (excepting of course the established Fair Use exemptions of news coverage, criticism, academic research, etc). For the music to be incidental, you would need to be able to legitmately say that purging the soundtrack of the music would have no effect on the quality of the audience's experience viewing the resulting video..

I think one needs to remember that the law did not evolve to protect performer's rights - traditionally the performing artist didn't HAVE any rights to the music nor have any copyright interest in the recording. Music was written and published by "tin-pan alley," a cadre of generally unknown to the public professional composers, lyricists, and publishers who created the sheet music the performers performed on stage and recorded. Labels bought the rights to the songs and hired the recording artists to perform them. The laws were structured to protect the rights of the composers, publishers, and record labels since it was their intellectual property that was in play, in most cases the artists were (and often still are) just the hired help..

Note that mechanicals expressly cover the duplication of an audio recording for distribution. The compulsary mechanical is not a blanket license for any music, it only applies to covers of music previously recorded and released by another artist and not all mechanicals are compulsary. The first recording still needs a mechanical to allow for the record production run but that one is not at the statutory complusary rates AFAIK. The compulsary mecahnical is more akin to a residual, insuring a continuing revenue stream to the publisher after the 'first run sales' by the original recording artist.

Compulsory mechanicals allow for the production and distribution of a phonorecord ("Phonorecords are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “phonorecords” includes the material object in which the sounds are first fixed.") of someone else's musical work, as long as that musical work has been previously published at least once. The copyright owner has the first run rights. But without a master license, that phonorecord's recording can't be a duplicate copy of a previous recording. It has to be a recording of a new performance, though of the same music.

It still astonishes me that Congress compels the copyright owner to allow subsequent artists to produce/distribute phonographs of new performances of the copyright holder's work, and even sets the price for it. This is the part, if there is to be any compelling, that should also allow for video, as long as the new performers allow the video taping of their legal performance, such as a school concert.

As for wedding receptions where an iPod is playing artists' recorded music, I guess capturing that music onto video would require a master license, or does a master license only apply to audio like a mechanical license? With a synch license, is no master license is required, like with a sync license, no mechanical is required? I think I've read this answer before, but would be hard pressed to find it before I hit the submit reply button!
God bless.