Since a phonorecording has a separate copyright from the music (melody and lyrics) itself, the scenario you pose would require BOTH a sync license from the publisher of the music and a master use license from the record label or other owner of the copyright on the recording to allow for copying of that pre-exisitng recording of the music. The synch license allows for use of the music, the master license allows for the use of a specific recording made by someone other than yourself. If all you obtain is the sync license, you have to make an original recording of it being performed yourself. If you used Celine Dion's recording of "My Heart Will Go On," in your video or it was played in it, you need to obtain a synch license from James Horner and Will Jennings publisher (Sony ATV Harmony in this case) AND a master use license from the owner of Celine's recording of it (Columbia/Epic I believe).

Here's ASCAP's FAQ on the topic...

"5. I want to record or videotape a song or record. Do I need permission, and how do I obtain it?

If you want to make copies of, or re-record an existing record, tape or CD, you will probably need the permission of both the music publisher and the record label. A music publisher owns the song (that is, the words and music) and a record company owns the "sound recording" (that is, what you hear... the artist singing, the musicians playing, the entire production).

If you plan to hire your own musicians and singers and create an original recording of a copyrighted song, then you need the permission of only the music publisher.

ASCAP does not license recording rights. Recording rights for most publishers are represented by the Harry Fox Agency: "

Note that Harry Fox does not deal with synch or master licensing, only mechanicals for audio recordings.

Very good of you, Steve. Thanks!

I just want to throw in a minor point for clarification: when I was a news producer, monthly we filled out a sheet indicating any music that was included in our newscasts. The station had ASCAP and BMI licenses, and I didn't know it then but we were filling out cue sheets. So any music, whether background or incidental in a story, was in theory, paid for.

I will tell you that this process was fairly haphazard and depended on everyone's memory. If I was out sick and the fill in producer used music, I'll guarantee you the artist(s) did not get paid for that. If I was out to lunch when the cue sheet got passed around, same result. This was in Phoenix (top 20 market), none of the stations had a good way to handle this.

The entire music industry is working under an antiquated system. I doubt they will change unless they see profits, and most small producers don't offer them that.

^^^and this just goes on to prove the point that Les, Sam, & Dave are making - that current law discriminates against the "videographer" because his/her use mandates a sync license, but broadcast TV can simply obtain a performance license that covers the broadcasters' synchronization of copyrighted music to broadcast images.

Going a bit further, if Sam would permit, I believe his argument for compulsory licensing for video as we have in audio can be best presented as follows:

For a cover audio recording, the intrinsic value of the copyrighted published music is just the structure of the music, the lyrics, the arrangement. Nothing more. The actual value of the performance is entirely dependent on the performers' talent. As such, the law forces the copyright holder (publisher) to grant permission to ANY performer to commercially record and distribute copies of that performance after paying a known, established fee, assuming other conditions are met, which typically are for cover tunes.

Just because a film production company chooses to film that same performance, be it live or studio, does not change the intrinsic value of the copyrighted material - either by adding to it or diminishing it. The mere visuals of the performance do not increase the intrinsic value of the copyrighted material EVER because they are perfectly related and correlated to the actual copyrighted material. For ex, it's impossible to vocally sing lyrics without moving your mouth; and the visual capturing of the vocalist's mouth moving cannot materially increase or decrease the intrinsic value of the lyrics because in order for anyone to sing those copyrighted lyrics, we ALL must move our mouths in EXACTLY THE SAME MANNER as dictated by human physiology. The same goes for the musical performance. Middle A is middle A on ANY keyboard/piano and must absolutely be struck in order to force the instrument to reproduce that frequency whether you, me, or any other of the 6-7billion people on Earth do it. Merely capturing the visual performance of striking the key cannot increase the intrinsic value of the music any more than the audible recording can - which has been established to be ZERO by law.

This is very much different from use in a motion picture or sync'ing the copyrighted material to moving images unrelated to the copyrighted material. In this case, the copyrighted material can, in fact, elicit a desired emotional response from the viewer that greatly exceeds the individual inherent value of both the copyrighted material and the visual images. And it is not unreasonable for the copyright holder to demand fair compensation for the use of his/her material because it may have added value to the moving images over and above the intrinsic value of the copyrighted material. (<-- actually BOTH the visual images AND the copyrighted material).

This is never the case with filming the visual activities required to reproduce the copyrighted material because anyone trying to duplicate the copyrighted material whether, vocally or musically, will have to perform materially similar actions to do so. If anything, the performing artist(s) deserves to benefit from the recorded visuals of the physical performance, not the copyright holder(s) of the published material because it is his/her/their skill that will determine the intrinsic value of the PERFORMANCE of the copyrighted material, and whether or not anyone will want to purchase the end product to watch the performance.

The reason this is a problem today is because technological advancements in the filming world have given many the ability to commercially film a major "live" concert production and make that available for public distribution at massively reduced budgets just like Pro Tools did for the audio world 15 years ago.

If you did not obtain a sync license from the copyright holder of the published material (music/lyrics), congratulations, you are in violation of existing copyright law. All you did was sidestep acquisition of the master use license from the copyright holder of the original CCR recording. Since you set copyrighted instrumental arrangements & lyrics to moving images, you must also obtain a sync license from the copyright holder.

Hence, Les's disgruntled commentary.

You're overlooking a couple of points. If the videographer makes a program and a broadcaster subsequently broadcasts it, BOTH sync and performance licenses come into play. The program producer needs to obtain a sync license to include the music in his soundtrack. But he also prepares a cue sheet for the broadcaster and each time the program is aired, the broadcaster uses that cue sheet to report the performance to ASCAP/BMI etc, whereupon performance royalties are paid out of the blanket license fee the broadcaster pays each year.

^^sorry, but I did not overlook that point. That comment was strictly limited as a response to Wendy's comments as a "news producer" from a television broadcast "station". There was never a mention of any private videographer in her post other than "small producers" at the end of her post which is entirely unrelated to her personal experience testimony or my statement.

Sorry if I misunderstood your post. Also, her situation was producing news, which has more liberal usage rules under the Fair Use provisions than do other forms of programming/filmmaking.