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Troy Davis August 26th, 2009 10:04 AM

event music copyright issue
 
What are the rules for having a videographer tape a school performance which includes copyrighted music? Can the videographer be paid for their time rather than for individual DVDs without infringing on any copyright laws?

Adam Gold August 26th, 2009 10:43 AM

The licensing agreement the school signs with the show's publisher dictates whether the performance can be videotaped or not. Whether or how the videographer gets paid or not is irrelevant -- if the contract says no videotaping then it's a violation either way.

Some publishers will let you make recordings for cast and crew and families, while others prohibit all video, all the time. Check the contract.

Steve House August 26th, 2009 10:47 AM

Quote:

Originally Posted by Troy Davis (Post 1272206)
What are the rules for having a videographer tape a school performance which includes copyrighted music? Can the videographer be paid for their time rather than for individual DVDs without infringing on any copyright laws?

If you turn over the raw footage at the end of the event and walk away, you're just hired help and not responsible for the content of the finished program. But if you edit the shoot and otherwise create the finished product, you're responsible for its content, including insuring proper licenses have been obtained for the music. Typically performance licensing for the music used in the show does NOT include sync licenses that are needed for incorporation into a video. In many cases, the schools contract with the music publisher or the show publisher (such as plays like "Little Shop of Horrors", etc) contain provisions that specifically prohibit recording or videotaping of the performances.

Dave Blackhurst August 26th, 2009 11:36 AM

You might want to check the archived threads - there was one not too long ago that described the nightmare of such a shooting situation. New teacher asked videographer to shoot, videographer spent quite a lot of time in prep and attending rehearsals, actual performance went badly (as in, the performance was apparently quite flawed), teacher asked to deep six the footage... videographer was trying to salvage, teacher "suddenly" discovers the clearances weren't in place... Videographer at least got paid SOMETHING for his time, but not what he expected... didn't have to deliver anything at least.

If the school asks you to do the shoot, then asking them about clearances should give you your answer - either the contracts on the "music" performed (this indicates it may not be a "play"?) allow for videotaping are in place or they aren't, and the school "probably" won't take the risk, ending the project. OR they may be all set, and you can proceed, or they may "proceed at their own (and your) risk" on grounds that your recording/documenting a kids performance, and THAT is what's important, not the "material" - legally incorrect, but a reasonable viewpoint as to a possible exception.

If you're initiating the shoot, ask a couple questions, and you'll likely quickly find, depending on the school, they will kabosh the whole thing, at least when there's profits involved...


It's quite sad when our schools, that are SO desperate for funding (talk to a teacher about the budget expectations... you'll either cry or be very angry or both) cannot take advantage of the opportunity to let their "user base" support them. I proposed that the video I was going to shoot/edit anyway (of MY child) could easily be duplicated and sold as a fund raiser for the school, and I'd be glad to do it... too many legal concerns... nope...

How many video screens/LCD's were dancing across the audience during the performance... DOZENS!!! Everyone has a video device nowdays, or at least a digital camera, even if it's in a cell phone... so there's lots of people who want to memorialize the event, and I'm sure MOST would gladly pay a few $$ for a "pro" multicam shot and edited DVD rather than shaky cam footage from a tired arm...

BUT because of the vagaries of the law, they get to have their "low quality" footage (which to me degrades the value of the performance and the performed work) instead of a higher quality product that shows the performance AND the performed work in the best light. AS an example I lightly edited a bit (one of the "stars" had a bit of "projectile stage fright" affecting her performance - play stopped and restarted "live") so the performance goes smoothly. The teacher (who always gets a free copy from me as a gift from my child) was SO happy and the performer was very thrilled when she watched it to the class...

I think what frustrates me about these "limited interest" event videos is that anyone can shoot them for personal use, but there are those (hi Steve) who want to make it an illegal act for someone to put a little effort into delivering a quality documentary result of the EXACT SAME PERFORMANCE... doesn't make much sense. But that's the way this area of law is at the moment.

Technically speaking, it would be a very Grinch-y IP holder that would sue over such a "breach of contract", and IMO, with the democratization of video through U-Tube etc, there really needs to be a simple boilerplate license clause rather than all the FUD. It's the kids that get shortchanged in the end when a proper video can't be shot and delivered because of FEAR.

Shaun Roemich August 26th, 2009 11:41 AM

Quote:

Originally Posted by Dave Blackhurst (Post 1272539)
and IMO, with the democratization of video through U-Tube etc

What's happening on YouTube in MANY cases has NOTHING to do with democratization: it has to do with THEFT. Deliberate, willfull theft, much as peer to peer file sharing.

And I wish I didn't need to KEEP reading about yours and Steve "squabbles" on here regarding IP.

Troy Davis August 26th, 2009 11:44 AM

Thanks for all of the great responses.

This question was asked by a parent and the drama teacher who wasn't sure how copyrighted songs used in dance routines would affect the sale of DVD's to the parents.
They wanted me to record the event, but didn't know if me recording, editing, and selling the DVD's to parents would cause CR problems.

Steve House August 26th, 2009 12:29 PM

Quote:

Originally Posted by Dave Blackhurst (Post 1272539)
...
I think what frustrates me about these "limited interest" event videos is that anyone can shoot them for personal use, but there are those (hi Steve) who want to make it an illegal act for someone to put a little effort into delivering a quality documentary result of the EXACT SAME PERFORMANCE... doesn't make much sense. But that's the way this area of law is at the moment.

....

I don't want it to be an illegal act but unfortunately under the current law it often is and one can't unilaterally ignore that because it's not the law you would choose it to be.

Steve House August 26th, 2009 12:33 PM

Quote:

Originally Posted by Shaun Roemich (Post 1272542)
What's happening on YouTube in MANY cases has NOTHING to do with democratization: it has to do with THEFT. Deliberate, willfull theft, much as peer to peer file sharing.

And I wish I didn't need to KEEP reading about yours and Steve "squabbles" on here regarding IP.

Not me squabbling, Shaun. I only post what I understand the law actually is, what it actually requires. I rarely comment on what I think it ought to be as what we want the law to be is completely irrelevent to how one conducts one's business. One follows the law as it is written, end of story.

Dave Blackhurst August 26th, 2009 06:11 PM

I am not "squabbling", only commenting upon the state of copyright law - I see "reasonable exclusions and exceptions" (for instance the recent amateur video using the Chris Brown song - clear infringement, I think we all agree on that 100%, but...). While there's a bit of good natured back and forth, as long as it's civil and thoughtful, I consider Steve's input and viewpoint valuable - we could go for root beers anytime, I'd venture!

And my comment on democratization of video was towards the comoditization of high quality video recording/editing/production GEAR, and the ability to distribute without having a huge company behind you... I agree that like ANY technological revolution, the opportunities for misuse/abuse are ripe. You take the good with the bad, but you have to admit the "rules" have changed.

The easy to grasp exception I see is how a person can legally videotape a performance, but cannot contract to have it done for them (or have the event organizer contract to have a proper documentation done by someone who knows how to do it right). I haven't yet seen an answer to this dilema.

And to anyone here who never EVER breaks "the law as written", more power to ya! With all the laws on the books that's a pretty tough thing to achieve (not just talking copyright here...).

The OP's question was reasonable, I know Steve has his position (which I'd describe as "the letter of the law"), other regular members here have a slightly different interpretation and viewpoint (none of whom advocate piracy or theft, but advocate reasonable and fair "spirit of the law" interpretations).

Given Troy's followup post, I wouldn't be surprised if the use of the songs isn't even "properly" cleared for the performance itself... but that's another can of worms.

The likelyhood of anyone being sued or prosecution occurring is probably quite small - technically a breach of contract and copyright law, but it's about like driving a few over the speed limit, IMO.

Troy Davis August 27th, 2009 08:17 AM

wow! That's a lot to take in. However, it appears to be a very gray issue. I guess it's a moral thing and the scale in which the DVD's will be distributed. Meaning, if you're recording a event were a total of ten parents want copies of their kid's performance it's unlikely that they're going to report you to the authorities:-)

Steve House August 27th, 2009 08:32 AM

The parents might not report you but you never know who else is in attendance. As a casual videographer you'd probably fly under the radar but if you're in business, you're trusting your livelyhood to blind luck.

Adam Gold August 27th, 2009 11:16 AM

Quote:

Originally Posted by Troy Davis (Post 1276293)
... it appears to be a very gray issue. I guess it's a moral thing and the scale in which the DVD's will be distributed...

Wow, I came to exactly the opposite conclusion based on the arguments here. It seems to me there's nothing gray about it and the scale is completely irrelevant, legally. That the question came from the drama teacher says he or she hasn't obtained the rights to use the music at all, so the first violation is there and is pretty clear-cut. The act of taping is probably another level, and the sale of the DVDs is definitely just piling on the violations.

Whether we like it or not, whether it makes sense or not, whether the copyright holder actually benefits or not, if you don't have the right to use the material you can't.

The fact that you can probably get away with it doesn't make it any more legal. Both Dave and Steve are absolutely right. Dave's talking about how things should be, and I agree with him completely, and Steve's talking about the way things are, and I agree with him as well.

Pete Bauer August 27th, 2009 11:59 AM

Quote:

Originally Posted by Adam Gold (Post 1276859)
That the question came from the drama teacher says he or she hasn't obtained the rights to use the music at all, so the first violation is there and is pretty clear-cut. The act of taping is probably another level, and the sale of the DVDs is definitely just piling on the violations.

Right on. 17 USC Sec 107 DOES allow copying for educational use, so the teacher is not infringing by using a work for teaching purposes. Going beyond educational use to provide copies and/or derivitive works for use by others (even if "just the parents") IS infringement.

Steve House August 27th, 2009 12:27 PM

Quote:

Originally Posted by Pete Bauer (Post 1276975)
Right on. 17 USC Sec 107 DOES allow copying for educational use, so the teacher is not infringing by using a work for teaching purposes. Going beyond educational use to provide copies and/or derivitive works for use by others (even if "just the parents") IS infringement.

Just a note for general info, folks have to be cautious against too liberal an interpretation of "educational use." If we're talking about limited copying or "performance" for actual classroom use, you're absolutely correct. But school plays, concerts, fund-raisers, music at athletic events, all those sorts of uses beyond direct in-classroom teaching purposes still require clearance and licensing even by bona-fide educational institutions. A school could show Citizen Kane in a film history class without paying royalties. But if it shows it as a fund-raiser for the film program, it needs proper licensing.

Dave Blackhurst August 27th, 2009 03:16 PM

Well, Troy, there you have it... if things proceed, at least you are reasonably informed.

It is a very frustrating area - I am VERY supportive of "property rights", period, lest anyone misinterpret my position, but as a practical matter most people don't understand or distinguish that the "casual" use of music they believe they bought and "own" creates technical infringement.

I think philosophically I reject any interpretation that makes "everyone" a lawbreaker. There is a necessity for "law and order" to maintain a functioning society, but there is this thing called "common sense" that also needs to come into play... when "the law" or the enforcement/interpretation thereof conflicts with COMMON SENSE, it's irresponsible to fail to speak up.

With the many "laws" out there, it's pretty likely we ALL break a few every day either through ignorance, carelessness, or sometimes knowingly... if the "letter of the law" was the final answer, we'd all be in jail or at least "criminals"... as a practical matter the "spirit of the law" is what I'd venture to say 99.99% of people live by so they can actually function and enjoy life... Speaking of which, Adam and Steve and I are going for a drink now!

Steve House August 27th, 2009 05:00 PM

Quote:

Originally Posted by Dave Blackhurst (Post 1277644)
...
With the many "laws" out there, it's pretty likely we ALL break a few every day either through ignorance, carelessness, or sometimes knowingly... if the "letter of the law" was the final answer, we'd all be in jail or at least "criminals"... as a practical matter the "spirit of the law" is what I'd venture to say 99.99% of people live by so they can actually function and enjoy life... Speaking of which, Adam and Steve and I are going for a drink now!

As a society we (rightfully, IMO) tend to put Business on a much shorter leash than we do Consumers. IF we were talking about Uncle Joe shooting his niece's birthday party and putting (copyrighted) Happy Birthday in the soundtrack without securing licenses and permissions than I'd agree with you 100%, no one is going to get much upset - certainly not me - even if it is technically illegal. But as soon as a BUSINESS gets into the act, everything changes. And a business is not just Sony or CBS ... a BUSINESS is Joe Snerd in West Podunk who three or four times a year gets asked if he'd like to shoot the school play so the parents can have DVDs of their kid. Even though he's a small-time, part-time, perhaps casual operator, perhaps hobbyist who just charges expenses, he's operating in the same ballpark as the New York Madison Avenue advertising production house or the producer selling to Discovery Channel or the society wedding videographer in the Hamptons who charges $25,000 a wedding. As soon as ANY money changes hands related to his shooting video for any purpose, he's a business. For that matter, when he posts to the public as a blogger or on YouTube, etc, he's operating in the public arena as if he was a media business, even if no money is changing hands. As a business, even a casual business, he has to pull on his long pants and know, understand, and operate by the big boy's rules. That includes a thorough understanding of the laws regarding copyright and licensing, model and property releases, and all the other myriad details of the media business that all the professional players in that game are expected to know, understand, and adhere to. He may live just up the street from the old Clampett place in Bugtussle but he has to know and play by New York City and Los Angeles rules with respect to the legalities of the profession. We don't forgive small businesses who violate environmental safety laws and dump toxic wastes; why should we be less rigorous in the need for people operating professionally to clearly understand the intellectual property laws that apply to their work?

I'll have that drink now, single-malt scotch if you don't mind.

Shaun Roemich August 27th, 2009 05:11 PM

I think a good number of us would be less frustrated IF the organizations responsible to staging plays and other performances refused to allow parents/grandparents/friends to tape the productions. Regardless of just where we individually stand in terms of opinions of what we SHOULD be allowed to do, it's sure frustrating knowing that individuals are "in there" doing what we can't legally do (and at a significantly worse level to boot).

I left a very lucrative aspect of my business behind (dance recitals at a VERY high level) solely because of the issues surrounding sync rights. I had 3 genlocked broadcast cameras in the house live switched to tape (using an older Panasonic broadcast switcher) with 2 channels of audio: board feed of music and announce mics AND PZM "tap" mics and produced VHS dubs (that's how long ago this was...). Now they have a single chip consumer camera in front of house with oncamera mic and people pay twice as much, arguably because they are now producing DVDs. Maddening.

Dave Blackhurst August 27th, 2009 06:40 PM

Steve -
Law favors the deep pockets, and frankly a leash does no good if the legal team "slips the collar"... as is frankly more frequent than not when a "big" organization breaks the rules (or needs a bailout).


It's the "little guy", business or not, that suffers when there is "legal inequity", as Shaun so eloquently illustrates! Those videos are being shot for personal use and enjoyment, same event as what a pro would shoot so the end user gets something that doesn't look like crap... common sense says something is fundamentally wrong with this picture, thus why declaring it "illegal" makes one chafe. When I can't even donate my services to help my children's school raise money by selling a few DVD's to proud parents and however few others would want to watch it once or twice... something is out of whack.

I've no stomach for scofflaws, but frankly I've had my fill of "big" guys picking on "the little guy" because they have deep pockets and they can... and do, even while they break the rules, again because they can, do, and can afford an expensive legal defense if anyone dares call them on their misconduct.

Rules and law have their place, no doubt, but I'll opt for fewer rules and more common sense, make mine a Root beer float, double ice cream!

Steve House August 28th, 2009 04:37 AM

Quote:

Originally Posted by Dave Blackhurst (Post 1278319)
...

It's the "little guy", business or not, that suffers when there is "legal inequity", as Shaun so eloquently illustrates! Those videos are being shot for personal use and enjoyment, same event as what a pro would shoot so the end user gets something that doesn't look like crap... common sense says something is fundamentally wrong with this picture, thus why declaring it "illegal" makes one chafe. When I can't even donate my services to help my children's school raise money by selling a few DVD's to proud parents and however few others would want to watch it once or twice... something is out of whack.

...!

You use the term "the same event as what a pro would shoot." But when a third party videographer is shooting it, he IS a pro and even if he is a local advanced hobbyist just shooting to earn a few $$ to upgrade his camera, he is functioning no differently or under a different legal system than would, say, a production unit hired from PBS. The scale of the money is different and the complexity of the logisitics is different but the laws regarding intellectual property rights and privacy rights, etc, are exactly the same. You see shooters such as the OP as different of business from the intellectual property owner or big-time production businesses and the money he's raising for the school is somehow a different category of "profit" than is the money the publisher is making from selling licenses to the play. I think they're both identical - profit is profit, regardless of what you want to do with the money after the fact. The publisher can't take the OP's camera without his permission and use it to earn some money and the OP can't take a performance of the publisher's play without permission and use it to earn some money. Seems totally fair to me.

Ervin Farkas August 28th, 2009 06:15 AM

Ten years ago, when real estate was still a good business even if done part time, I took some classes, got licensed, and sold a few homes... yeah, another era... But I will never forget what one of my teachers said about this highly regulated industry, when talking about how an agent should conduct his business: if something feels wrong, it more than likely IS wrong.

As Dave put it, there is less and less common sense in our society! I have a second grader, her class had a music presentation last year, same scenario as described above. Instead of parents shooting with pocket cameras, I was asked to bring in my Z1 on a tripod, with a pro mike right in front of the kids - so each family can have a decent video of the performance. I was not paid, not even for the blank disks.

Are you going to tell me that it was illegal to provide watchable memories for 20 kids singing their first school songs? That this falls under the same law regulating the rock concert of Billy Megastar that cost $3,000,000 to produce???

Come on guys, where is that common sense?

Steve House August 28th, 2009 06:46 AM

Quote:

Originally Posted by Ervin Farkas (Post 1280275)
...
Are you going to tell me that it was illegal to provide watchable memories for 20 kids singing their first school songs? That this falls under the same law regulating the rock concert of Billy Megastar that cost $3,000,000 to produce???

Come on guys, where is that common sense?

Yep, just as illegal as if you bought a CD you like, ripped off a dozen disc copies, and gave them to your friends for Christmas. Or perhaps closer to the situation you describe, buying a CD of favourite children's songs and giving copies to all the parents in your circle of friends. Owners of IP are entitled to compensation for the distribution of their property. The words and music of those songs are the property of the copyright holder. The fact that you were motivated by "Those kids are just so cute!" doesn't change it.

Ervin Farkas August 28th, 2009 10:47 AM

I agree with the first part, but the comparison is not quite right. If I bought a CD and made copies, that's a clear infringement of the musician's rights. But when the school bought the music sheets, they implicitely bought the right to perform that music. If I was Joe Parent and my child is singing in that choir and I shoot the choir with my little pocket cam - no one would have any issues with that, right? I have so far not seen any music sheets specifying "taping a public performance of this music is prohibited". If we follow the letter of the law, we will have no family memories...

Now if I bought a ticket to some expensive to mount concert where taping rights are specifically stated, that's another story, but we are talking about a free performance of my own child.

Common sense dictates that if I can watch that performance once, I can tape it too, so I can watch it later. The fact that one parent makes a better quality DVD as opposed to 20 parent shooting with 20 shaky handicams - in my eyes does not make any difference (provided I am not selling the DVDs, but distributing them for free).

If any law says otherwise, that just doesn't feel right, the law is in need of revision - that's my whole point. I know, this is a very controversial topic, and everyone is pretty much in a grey cloud; I hope some sort of legal clarification will come in the near future.

Steve House August 28th, 2009 11:52 AM

The problem is not so much making the tape for yourself as it is distributing copies of the tape to someone else, including people who were present at the performance and could have made their own tapes but didn't.

Common sense actualy doen't say that if you can watch a live performance you can also tape it to watch it again. "No Recording, Videotaping, or Photography" restrictions at concerts, performances, and exhibitions are incredibly commonplace.

Remember that publically performing a piece of music and syncing the music to video are two separate and different acts and require two different licenses. And while you may be correct that an explicit prohibition against recording or videotaping a performance is rarely seen on sheet music, I understand they are very common in the performance license agreements for plays and musicals. And just like purchasing a DVD of a movie does not license you to perform it in public and charge admission, the purchase of sheet music or the script of a play does not in itself convey a public performance license to the purchaser.

Les Wilson August 28th, 2009 12:50 PM

Quote:

Originally Posted by Steve House (Post 1279996)
... The publisher can't take the OP's camera without his permission and use it to earn some money and the OP can't take a performance of the publisher's play without permission and use it to earn some money. Seems totally fair to me.

In practice, the system is onerous and biased against the small guy which for all I know is what the industry lawyers want. I've gone the proper and legal route twice now and it is an expensive laborious and tedious process to secure the permissions that ultimately fails to secure permissions for all songs so something gets cut.

For example, I did a Christmas school performance DVD as a fundraiser for the Fine Arts department. I had to deal with over a dozen different entities who manage the licenses. These are not easily found and takes digging. Many are are slow, don't answer the phone/email or have long complicated online applications that many times don't work. It's not something you can ask a parent or school staff member to do. The Time Warner companies are (in my experience) the absolute worst with Sony running a close second. I followed all their online procedures and after weeks got no reply. I left phone mail on every single extension and not one curtosy of a reply. The New York companies are next with a starting fee of $50-$75 a song for sync plus per copy mechanical. Multiply that by a typical show with 15-20 songs, add 40-60 hours of your labor and you've pretty much blown the budget before pressing the red button.

So yea, it's easy to *say* go get the permissions and you'll be ok it's harder than it sounds. The reality is that the small guy can't, practically speaking, play by the rules.

With my cynic hat on, I'm left to conclude they can't afford to license it at a reasonable price and pay the legal staff they require so they'd rather ignore you and try to catch you infringing at which point they WILL take your camera without your permission.

Steve House August 28th, 2009 02:54 PM

Quote:

Originally Posted by Les Wilson (Post 1281500)
...
So yea, it's easy to *say* go get the permissions and you'll be ok it's harder than it sounds. The reality is that the small guy can't, practically speaking, play by the rules.

...

There are music clearance agencies that will work with small operators for reasonable fees. They usually know just who to call and can get the best prices. For a project like your Christmas DVD it would be well worth it to hire one to do all the legwork for you. A Google on "music clearance services" will turn up a bunch.

Dave Blackhurst August 28th, 2009 05:31 PM

Glad to see I'm not alone in calling out the absurdities here.

And Steve, I think we ALL understand the technicalities - a performance is a performance, if you will. At a PAID production that charges for tickets you would expect to see restrictions on photos, taping, etc. You try that at local PS15's elementary school kid's production (no entry fees), and I'll venture you have a riot... there IS a difference here.

I'd expect if a local theater company was putting on let's say "Cats", and they were charging, and wanted a taping, they would sort out the particulars... I would expect the appeal to be to a wider audience, in fact the production company might well restrict taping because they want people to come see it LIVE - that's part of the experience.

When li'l Johnny and Sue are doing their Christmas play and show (out of tune singing, knocked over Christmas tree, and all...) with free admission to friends family and relatives, I think you can see the "appeal" is not quite the same, and yet to the family members it is "priceless", and it's the MEMORIES that have value, not the material performed. In my mind it's rather inappropriate to even try to equate/associate these two very distinct scenarios.

If the licensing has been arranged to allow performance in a FREE show, it should reasonably include the rights to have a videotape made, and perhaps a per unit royalty check for any DVD's sold - that would be fair and sensible, and provide additional benefit to the IP holder.

It's not like video hasn't been around for a while, but the high quality that can be had at a relatively cheap investment has opened up this area - technology has progressed, but the "rulebook" still reads like we listen to audio on vinyl... and a recording device has two large reels... and a video camera is the size of some subcompact cars...

Pirates/couterfeiters don't make casettes and LP's, they churn out CD's and DVD's in a warehouse in Singapore. They are in it for profit, and don't give a hoot about the content, other than how many it means they can sell... THEY are the REAL enemy of the IP holder... (along with the "everything should be FREE" file sharing types).

And they will NEVER sell even a single copy of "Johnny and Sue's christmas show"... though a few dozen copies for friends and family have "market value" in a very limited sense. In such a case "reasonable fees" might be no fee at all, simply because the market value is so miniscule as to be more trouble to account for than it's worth!

There needs to be some perspective... and that's part of "common sense". Just sayin'...

Les Wilson August 28th, 2009 06:17 PM

Quote:

Originally Posted by Steve House (Post 1281965)
There are music clearance agencies that will work with small operators for reasonable fees.

They won't do it for free. Their charge or the cost of doing it yourself makes these free performance/limited market events unaffordable. It should not be so hard to require an agency. That's old think. It needs to be brought up to date and made easy and affordable. That will create the market/ecosystem and generate revenue for the IP owners instead of paper pushing administrators. As it is now, organizations lose out on capturing their own events or record it "illegally" and put the organization at risk, provide a bad example and in the end promote the undesired behavior.

Steve House August 29th, 2009 06:36 AM

Quote:

Originally Posted by Les Wilson (Post 1282531)
They won't do it for free. Their charge or the cost of doing it yourself makes these free performance/limited market events unaffordable. It should not be so hard to require an agency. That's old think. It needs to be brought up to date and made easy and affordable. That will create the market/ecosystem and generate revenue for the IP owners instead of paper pushing administrators. As it is now, organizations lose out on capturing their own events or record it "illegally" and put the organization at risk, provide a bad example and in the end promote the undesired behavior.

I know it may be expensive but it isn't always. But more importantly, why do people think they have a moral RIGHT to have access to everything at a price that's affordable for their budget? I certainly can't afford a Ferrari so I have to make do with what I can afford. There's no reason there oughta be a law compelling Ferrari to sell me one at a price I'll be happy with. Music is no different. If you can't afford the fee Elton John demands of you to use one of his songs, go somewhere else. There's no reason you should feel slighted or that the system is unfair because you can't afford it. Get good enough that you can charge a fee that will allow you to afford Elton John. Meanwhile buy a Chevy instead of that Ferrari.

I have to point out that the way it is now IS generating revenue for the IP owners. If you license a piece of music, you pay fees directly to the music publisher who is working with the composers and lyricists. Collectively they ARE the IP owners, not the "artist" on the CD you bought (unless he's self-publishing) and when you license music to use in a film or video you pay them directly. ASCAP and the like are clearance houses for performance royalties - they don't own the rights and they don't keep the money paid them on performances and broadcasts. They serve as a collection house, turning around and distributing the money broadcasters and performance venues send them for performance licenses to the various IP owners.

Craig Seeman August 29th, 2009 12:32 PM

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Biomedical engineer turned live-performance sensation Girl Talk, has received immense commercial and critical success for his mind-blowing sample-based music. Utilizing technical expertise and a ferocious creative streak, Girl Talk repositions popular music to create a wild and edgy dialogue between artists from all genres and eras. But are his practices legal? Do his methods of frenetic appropriation embrace collaboration in its purest sense? Or are they infractions of creative integrity and violations of copyright?"

Steve House August 29th, 2009 01:36 PM

Quote:

Originally Posted by Craig Seeman (Post 1285756)
... Utilizing technical expertise and a ferocious creative streak, Girl Talk repositions popular music to create a wild and edgy dialogue between artists from all genres and eras. But are his practices legal? Do his methods of frenetic appropriation embrace collaboration in its purest sense? Or are they infractions of creative integrity and violations of copyright?"

Something is only collaboration if the contributors of the various elements are voluntarily participating. If their materials are being used without their consent, it's theft, not collaboration. That idea goes beyond the letter of copyright law and is derived from the moral right to the exclusive enjoyment of the fruits of one's labours that is its foundation.

Les Wilson August 29th, 2009 02:46 PM

Quote:

Originally Posted by Steve House (Post 1284544)
I know it may be expensive but it isn't always. But more importantly, why do people think they have a moral RIGHT to have access to everything at a price that's affordable for their budget?

Don't put words in my mouth. I happily paid the same amount for 150 copies of "Oh Come All Ye Faithful" as the next guy. It's not the price of the IP that blows the budget, it's the cost of getting it. Whether it's yours or you pay a service. It's easy to get a performance license for an audio track. The process hits the skids when you want a sync or mechanical. Different administrators you have to find ... different process with each place ... no phone access ... many only work by old fashioned fax ... lack of central clearing houses like BMI etc.

Steve House August 29th, 2009 04:47 PM

Sorry, didn't mean to put words in your mouth. Mechanicals are relatively easy - you just go to Harry Fox Agency, at least in the States. I'll certainly agree it could be a lot easier and cheaper to get sync and master use clearance and it would be nice and make life a whole lot simpler for small video producers and indy filmmakers if it was. I'm just not so sure there's a compelling reason to say that it ought to be, if you get the difference. The owners of the IP can do whatever they wish with their property - make it as hard or as easy as they see fit. After all, it's their property and the roadblocks to our using it are their choice. Remember that ASCAP and BMI are in some ways similar to IP owner's co-ops - they came into being as societies of rights owners because they saw it was to their advantage to establish a central clearing agency for performance royalties. It's similarly up to the rights owners to see it as something that benefits them to establish similar clearance societies for sync and master licenses. Apparently they either don't see it as something that's in their interest or it's just that it's more trouble than it's worth to deal with small volume users. It's just the nature of the beast that when Speilberg's office calls asking permission to use someone's song in his next movie they're going to to get a lot more attention than does a call from Joe Snerdly's event video services wanting to use it in the video of the annual meeting of the local ice cream chain's stockholders.

Dave Blackhurst August 29th, 2009 05:27 PM

Quote:

Originally Posted by Craig Seeman (Post 1285756)
Worth watching. A very interesting discussion of IP.
RIP! A Remix Manifesto
Hulu - RiP! A Remix Manifesto - Watch the full feature film now.

If you don't want to watch on Hulu then the film owner is using the pay what you want to pay method of sales to buy your own copy.
RIP: A Remix Manifesto Rip It Downloads


Their description:
"Immerse yourself in the energetic, innovative and potentially illegal world of mash-up media with RiP: A remix manifesto. Let web activist Brett Gaylor and musician Greg Gillis, better known as Girl Talk, serve as your digital tour guides on a probing investigation into how culture builds upon culture in the information age.

Biomedical engineer turned live-performance sensation Girl Talk, has received immense commercial and critical success for his mind-blowing sample-based music. Utilizing technical expertise and a ferocious creative streak, Girl Talk repositions popular music to create a wild and edgy dialogue between artists from all genres and eras. But are his practices legal? Do his methods of frenetic appropriation embrace collaboration in its purest sense? Or are they infractions of creative integrity and violations of copyright?"

VERY thought provoking movie - and it really hit a few key points - when a consumer decides to be a creator (imitator/restyler/thief?) is where you hit a problem. If one is prohibited from recombining, reusing bits, mixing things together, and so on, where is the "next big thing" to come from? Sounds like a drab boring prepackaged sci-fi nightmare society! Also reminiscent of the "Carterphone" case once again - control of one's "idea" doesn't mean ABSOLUTE control and a right to bar any and every possible use/variation/derivation...

I found it VERY interesting to note that the law as it is hasn't always been so, and that in the early days of the US, "international" copyright rules were brazenly ignored... it would appear that Walt Disney, Mark Twain, and those of us advocating stretching the boundaries aren't quite as mad as it might seem - I'll be counted in such revolutionary company any day.

Even more fascinating was the recent governmental attempt to change the US from a "producer" to a licensor of ideas, and the relative failure of such a philosophical approach...

REASONABLE protection of intellectual property is important to encourage the profitable research and development of new ideas/processes/products, but there must be a balance. If the "consumer" is only there to CONSUME at the convenience and profit of the corporate (meaning an incorporated entity, not the collective population), it's a pretty sad state of things.

It's as if one were to coypyright the numbers "1" and "0", along with the notes A through G, sharps and flats inclusive... since computers only talk in 1's and 0's, and music generally speaking requires the use of the aforementioned notes, I suppose sizable royalty checks would be expected post haste... but creativity would be strangled.

Les Wilson August 29th, 2009 08:46 PM

Quote:

Originally Posted by Steve House (Post 1286534)
Sorry, didn't mean to put words in your mouth. Mechanicals are relatively easy - you just go to Harry Fox Agency, at least in the States. I'll certainly agree it could be a lot easier and cheaper to get sync and master use clearance and it would be nice and make life a whole lot simpler for small video producers and indy filmmakers if it was. I'm just not so sure there's a compelling reason to say that it ought to be, if you get the difference. The owners of the IP can do whatever they wish with their property - make it as hard or as easy as they see fit. After all, it's their property and the roadblocks to our using it are their choice.

Well that was my point. The current situation is set against the small guy. It's easy to get a performance license. But for videotaping a school performance, Harry Fox doesn't do it. You need a sync license with mechanical rights. That was the issue I was pointing out and it's prohibitive. You can't even do a high school graduation without 20 hours of research and licensing for a couple songs and ultimately get snubbed. That's my point. Sync is still old think and it's biased against the small markets whereas, for some reason, the other licenses are not.

Steve House August 30th, 2009 03:43 AM

The idea of a sync license isn't biased per se but it may very well be that most of the large publishers and copyright owners just don't want to deal with small-market operators because the revenue they would get from licensing such small quantity distributions doesn't offset their administrative costs, it just isn't worth it to them. License a thousand copies and the revenue justifies the secretary's time filing the paperwork; license 25 copies and you don't even cover the postage to get the license paperwork to you.

As a side bar - you don't need a mechanical license to distribute DVDs of the show. Sync yes but the sync license will include the rights to copy and distribute copies of the video. A mechanical is for reproduction as an audio-only recording. If you make a CD of the performance, you need the mechanical in order to duplicate it and distribute the copies. But if you're only distributing the video of the show on DVD, the sync license covers it. And for the CD, the mechanical is easy and cheap. Harry Fox has online payment and reporting for compulsary mechanical licenses ... 9.1 cents per CD copy per song for songs lasting under 5 minutes, 1.75 cents per minute per copy of songs lasting more than 5 minutes.

"You will never need a synchronization license AND a mechanical license for a single re-creation. Both cover royalty payments to the songwriter for their composition, but mechanical licenses are for AUDIO-ONLY, whereas synchronization licenses are for video. They are like compliments of each other; one is for audio, one is for video." - EasySongLicensing.com

Les Wilson August 30th, 2009 05:36 AM

That's what I said several posts ago. For whatever the reason, sync licensing is stuck in the dino age where as other licensing is centralized, and online. That makes it cost effective for us to get them (separate from the actual licensing costs). Sync isn't like that and therefore is more costly for us to acquire and no doubt for them to issue. The admin costs of sync make it baised against the small operations who could get these jobs recording performances.

I know the sync includes the mechanical. My point was that for the jobs that are the subject of this thread (recording school plays, graduations etc), you can't say it's easy and go to Harry Fox. You need a sync license. You have to find out who does the sync license and go through the specific procedure. Rinse and repeat for each song. Or pay someone else to do it. The work doesn't disappear, it just moves around.

Steve House August 30th, 2009 05:52 AM

Fox Agency used to do synch licenses as well as mechanicals but in 2002 they dropped that part of their services. I wonder why.... Since HFA was founded by and represents the Music Publishers Association we can only assume they did so because the major IP owners want it that way but it would be interesting to find out the exact reasons. At least the combination of HFA's searchable online database with ASCAP's makes it fairly straightforward and free to locate the copyright owners. But like I've said, using a clearance agency who deals with them every day and knows just who to call and is on a first-name basis with them is likely to get it done faster and cheaper than doing it yourself even after you've added the agent's fee to the costs.

Les Wilson September 4th, 2009 07:35 AM

To recap, my point in this thread is that for small-one-person producers who honor IP ownership and seek licenses for all jobs, the system is biased against us and prevents the market of videotaping school programs and selling to the limited audience market. Only small producers can serve this market. Big ones can't afford it. Whatever the reason, getting a sync license is prohibitive and prevents the producer from "doing it right".

But not to be totally negative, this space IS better these days than it was 3-4 years ago but even today, it's not that simple. HFA doesn't always tell you ALL the publishers. Here's an average example from my experience in the last year that caused the performance getting pulled from the recording due to lack of license:

Here's what I got from the school: "All I'll Ever Need" words and music by Julie Adkison

If you search HFA, you have to first answer 4 irrelevant questions about getting an audio license before you can search, then you'll see the results showing 3 publishers of which only 2 are listed comprising 49% ownership. The other 51% is "non-HFA"

When you search ASCAP, they show no owners and just say you have to call an ASCAP rep but no location and hours are listed there or on the Contact Us page.

It's 10pm so this is now a dead end.

Truth is, there are more sites you need to search. They are:
http://www.ascap.com
BMI.com | Welcome
SESAC Home
U.S. Copyright Office

In this case, you are lucky and a search of BMI reveals another publisher is warner-tamerline but there is not a link to anything like there is for the other publishers. Warner-Tamerline doesn't exist. Google reveals it's now Warner-Chappell.

Go to Warner-Chappell's website and do a search. You will discover 30 hits with the identical song name but one of them lists Julie Curlew (not Adkison). Fortunately, you are doing this AFTER searching other sites where other writers were listed and you can corelate it's indeed the right one and Julie must have gotten divorced or married.

Fill out a license request as best you can for their view of licensing so you can make 25 DVDs of a student performing the song (it isn't always obvious). Wait days and weeks and nothing will happen. Your request always shows as $00 with status "manual". Call them and tell the voice response unit you want licensing. You will get an answering machine EVERY time and NEVER get a call back. Call ALL 6 people in the directory and you will ALWAYS get a machine. Don't be a pest and only leave one message a day. Nobody will EVER return your call or contact requests. EVER.

So even tho SONY/ATV and Grayson Castle responded immediately with T&C's, they won't issue a license until you have T&C's from all owners.

This is only for a sync. Rinse and repeat for all the songs in the program. Other license types don't take this much effort. No matter who does it, for SYNC licensing, someone has to make all the calls and track down all the owners. I think it should take the Administrating company the same amount of energy to issue a license to a small producer as a big one: review, forward, get approval, click, click, click. Doesn't matter if it's for $35 or $3500.

For an example of a great one-stop-shop: www.musicservices.com. They are great if they admin the song. It's all online, the form is simple and response time is a couple days for a license.

But the best development I know of is this recent service which could be like .65 per song per copy (for songs they admin) or $400 a year to do the research etc for songs they don't.

VideoReady License - Pre-cleared song and recording licenses for video synchronization

Roger Van Duyn September 5th, 2009 10:39 AM

Hey Les,

Thanks for the post.

Steve House September 6th, 2009 05:13 AM

Quote:

Originally Posted by Les Wilson (Post 1310864)
....
For an example of a great one-stop-shop: www.musicservices.com. They are great if they admin the song. It's all online, the form is simple and response time is a couple days for a license.

But the best development I know of is this recent service which could be like .65 per song per copy (for songs they admin) or $400 a year to do the research etc for songs they don't.

VideoReady License - Pre-cleared song and recording licenses for video synchronization

There are a couple of problems with the licensing service you linked to. First is they only license songs by "Christian" artists. That right there means your selection of songs is going to be very limited to one specific genre - not much good for a public school musical or theatrical event. Likewise it appears they only clear copyrights for customers who are churches and church-related activites. And finally, from their site...

What's Not Covered
•Webcasting your videos
•Digital downloading your video
...
...
•Commercial videos
...

If you're shooting a performance and selling the DVDs to the participants, attendees, or interested parents in the case of a school production, even it's only on a casual basis, you're making and distributiing a "commercial video." If it's sold to someone, even if just to a handfull of customers or for that matter even if it's just produced for and sold to ONE customer (like a typical wedding video), that makes it a commercial video. And no posting online or on YouTube and such...


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