Copyright law
 

There are a couple of things that I've wondered about for a while, but have never asked anyone. It's always seemed like there were some loopholes in copyright laws that allow people to use some things if they do it a certain way. This may sound completely idiotic, but you can tell me if I'm way off or not.

First, is there a time limit for how much of a song you can put in something without paying the artist for it? I've always heard references in TV shows and stuff like "that's all we can play of that song or we'll have to pay royalties".

Also, I've noticed in situations where someone is unlikely able to obtain the rights for something, they'll show it on a television and film the whole TV (or just the screen). Is it legal to film a TV screen if you want to include a clip of a TV show or a movie without paying? I've noticed competing cable news organizations show footage of other networks in this manner while criticizing them.

I'm not doing anything commercial right now anyway, so it doesn't matter. I'd just like to know.

Well, those two particular things are in the grey area. Consider this, if a work you created isn't yours then you will need to ask the owner before you use it.

The so called loopholes you may be referring to are "Parody" where you use it for satire (A la Saturday Night Live, Mad, etc) and Fair Use.

For the best advice you should consult a lawyer who's experienced in this sort of thing.

Er... filming a TV screen would be about the same thing as Filming a Film Screen in a Cinema (or taping a show). It's copying a work and you need permission to do it commercially. Though In some cases, you could do like the news and say "Courtesy: Company X" if you're using it for info (This may fall under Fair Use) but I'm not well versed on the laws and common practices on that.

Well, I guess what I'm getting at (as far as filming a TV screen goes) is I think it should be possible for someone to show someone's work that wouldn't necessarily want it shown.

For instance, what about political documentaries like "Outfoxed" in which they are showing clips of Fox News as examples of how right wing they are. There's no way Fox gave them permission to do that. So, they must have found a legal way to do so.

In Fahrenheit 911, Moore shows clips of cable stations in a negative light and even shows a full length Army commercial. Do you really think the Army would give Michael Moore permission to use an army commercial for anything? No, I don't think so. It does look kind of grainy too, as if it was taped from television or filmed from a TV screen.

Some of these areas are not so gray. See our five-part article by Douglas Spotted Eagle, Copyright: A seemingly Shifting Target, which answers many common questions about copyright law.

Is Douglas Spotted Eagle an attorney? I didn't read the whole article, but it seems somewhat biased.

There are people legally using other people's creations to help make their point... sometimes in situations that they could never get permission. Such as Fahrenheit 911's use of Fox News footage and Army commercials. So, how do they do it?

The copyright article is good if you want a good scare, but is there any place short of a lawyers office that you can find out how to obtain television footage legally?

Shooting a video screen does not change the copyright status of a work you reproduce. You can't get away with it just because it's grainy, shot off a TV, recorded with a cheap microphone, or whatever.

You don't need permission to reproduce something under the terms of the "Fair Use" doctrine, which says that you may quote from a work in order to comment upon it. In writing a book, for example, you can quote Arnold Schwarzenegger's line in Terminator 2, "Hasta la vista, baby!" without violating copyright; reproducing the entire script, however, would get you in trouble. For everything in between, ask a lawyer.

I'll bet that in the case of OutFoxed and Farenheit 9/11, the producers wanted that grainy look in the clips from Fox News.

(Either that, or they were legally allowed to make excerpts, but Fox or other holders wouldn't give them high-quality clips.)

Michael

As you correctly surmised in your original posts, there are ways to show footage that people might not "want" you to use. Of course, a lot of people might "want" or "Not want" different things... that the law allows or doesn't allow.

This is why it is important to consult an attorney. Especially if you don't want to read long boring citations of case laws.

Fair use, Satire, Parody, Music "Sampling","news" and "Documentaries" are all areas that have some variations to them. In addition to copyright, you also must deal with "right to privacy" and "right to publicity" issues.

Michel Moores' use of Fox footage, The Swift Boat peoples use of John Kerry's image... these things are carefully vetted by attorneys... usually groups of attorneys before going forward.

There are , I think two attorneys who regularly post to this board. Paul Tauger and someone else whose name escapes me at the moment.

Re: Copyright law
 

No. There is no magic time limit, nor is there a magic number of notes or bars. One of the tests for fair use (which is a defense to infringement) is the substantiality of the amount taken, but there is no magic formula.

No, it is not a defense to infringement (either copyright or trademark) to film a TV screen. Either the producer obtained rights, or the particular use was one that would not result in infringement liability.

Whether or not a specific use is commercial is irrelevant to whether that use infringes.

Social commentary usually supports a finding of fair use.

He's not, but the article is, on the whole, quite good (I have a couple of minor technical quibbles with parts of it). I am an intellectual property attorney.

Re: Re: Copyright law
 

<<<-- Originally posted by Paul Tauger : No. There is no magic time limit, nor is there a magic number of notes or bars. One of the tests for fair use (which is a defense to infringement) is the substantiality of the amount taken, but there is no magic formula.-->>>


Interesting. Way back in high school I took TV Production -- we did a daily/semi-daily newscast, the video yearbook, and other wedgie-inducing things. The teacher specifically taught us that we could use up to 30 seconds of any song before it would be considering infringement. I remember this well because the video yearbook was full of 30 second snippets of popular music (although we also had a needle-drop/sound-alike music library, his instructions were specifically regarding popular music). Not to mention that the video yearbook was sold for money... Of course, I trust Paul more than I trust my high school video production instructor, but I wonder why he had it wrong?

He had it completely wrong. Perhaps he was thinking about BMI/ASCAP logging, which may have a "minimum amount of play to trigger logging" requirement.

Not to continue off-track here, but I really hadn't even thought about this in years... Did the school put itself in a position where it could have been sued? There were tons of 30 second snippets in that yearbook...

Let's also remember that just because someone CAN sue someone doesn't make it likely. You are probably way more likely to be sued for something you do on the job or for something else, like a business transaction, than being sued by the music industry.

The music industry isn't going to sue a highschool, a church, or a kid making a tape for his grandparents. You think that suing kids might be bad publicity... try suing a church... not in this country... not unless you've been molested. I doubt they'd even mess with a wedding videographer... they might send you a letter to scare you, but they're not going to spend a bunch of money on their big expensive lawyers to sue a wedding videographer for a few bucks.

The only time they sue small fries is to scare large amounts of people.

<<<-- Originally posted by Tony Hall :

The music industry isn't going to sue a highschool, a church, or a kid making a tape for his grandparents. You think that suing kids might be bad publicity... try suing a church... not in this country -->>>

First of all, considering the mind-boggling strongarming the RIAA has done to music downloaders, I have no doubt that they'll sue anyone, anywhere, for anything they can.

Second, I believe Paul Tauger has a story, in fact, about a church being sued for copyright infringement... Paul, am I correct?

Found it myself:
http://www.dvinfo.net/conf/showthrea...sued+copyright


"The leader of a church choir was sued for infringement when he made 20 copies of a copyright-protected hymn."

also,

"Andrew Lloyd Weber sued a high school in New Jersey for staging an unauthorized production of Jesus Christ Superstar."

Ok, I didn't say it was impossible... just very unlikely. Who was it that sued the church? And who won these lawsuits... you also can't just assume that everytime a big company sues someone that they're going to win.

Impossible, unlikely, improbable, possible, probable, likely, certain... these are all words used to describe "Exposure".


It's a fact that big companies will sue churches, high schools, day cares, wedding videographers, garage bands, etc. (My wife is an IP Attorney for a large firm here in Silicon Valley.)

They do it "To scare large numbers of people". You only have to sue a couple of kids downloading music to scare a couple of hundred thousand parents. Is it good for the company image? Does the company even care? That's a different thread.

The question becomes how comfortable are you with YOUR exposure? "Do you feel lucky... punk?""

Don't forget that in some cases, NOT suing is tantamount to allowing the trademark or copyright to Fall into the public domain. If they don't sue to protect, it can be construed as permission to infringe.

There's a lot of legal ground here, that Paul might want to comment on, but I suspect he's pretty busy, and this horse has been beaten to death in a number of copyright threads on this board.

For me it comes down to two things... Exposure, and "Doing the right thing".

<<<-- Originally posted by Tony Hall : you also can't just assume that everytime a big company sues someone that they're going to win. -->>>



Sure, they might not win, but by then you've racked up attorney fees, lost wages, mental/emotional stress, and more. You might be able to file a countersuit for some of the monetary loss (I'm not a lawyer, so I don't know), but is it really worth it?

Now, if you get sued for making a legitimate parody, for example, I might say, "Go ahead and fight the good fight." But if we're talking about something like using music that you know you shouldn't use, then Richard is correct: do you feel like playing Russian Roulette?

<<<-- Originally posted by John Britt : <<<-- Originally posted by Tony Hall :

The music industry isn't going to sue a highschool, a church, or a kid making a tape for his grandparents. You think that suing kids might be bad publicity... try suing a church... not in this country -->>>

First of all, considering the mind-boggling strongarming the RIAA has done to music downloaders, I have no doubt that they'll sue anyone, anywhere, for anything they can.

Second, I believe Paul Tauger has a story, in fact, about a church being sued for copyright infringement... Paul, am I correct? -->>>

Actually, I have two -- one involves a church that was sued because the choirmaster made 20 copies of a hymn that was protected by copyright. Another involves a high school that was sued by Andrew Llloyd Weber's organization for an unauthorized production of Jesus Christ Superstar.

<<<-- Originally posted by Tony Hall : Ok, I didn't say it was impossible... just very unlikely. Who was it that sued the church? And who won these lawsuits... you also can't just assume that everytime a big company sues someone that they're going to win. -->>>On these facts, they would win.

<<<-- Originally posted by Paul Tauger :
Actually, I have two -- one involves a church that was sued because the choirmaster made 20 copies of a hymn that was protected by copyright. Another involves a high school that was sued by Andrew Llloyd Weber's organization for an unauthorized production of Jesus Christ Superstar. -->>>

They would have to sue. After all, who do hymnal publishers sell to? Churches, right? Who do playwrites sell old plays to? High Schools. If these people ignored these violations, they may as well close up shop.

There's just some things I think people should be able to do without corporate greed interfering. For instance, when we buy a CD it can become like the 'soundtrack to our life', so who cares if a private citizen wants to use a song in a personal project with no intention of making money?

I create things and I make money by creating things, so I don't want someone ripping me off or making money off my hard work... but if a high school wanted to preform one of my scripts, or a kid wanted to trace one of my drawings, or a church wanted to use one of my songs in a non-profit video... I'd have to be a real butthole to want to mess with them.

This may be the wrong place to be a consumer advocate, but I think they need more rights. I think that you should have to prove damages to sue someone. What's it hurt if a couple wants "their song" on their wedding video... how does that hurt the record company?

http://creativecommons.org/

http://karatemedia.com/music/commons/

http://creativecommons.org/wired/

Tony,

There are areas of copyright law that do address some of the issues you brought up. Again, like we've pointed out... fair use, education, parody and newsworthiness can play a factor.

Authors of books get a few pennies on every copy that sells, even if its sold to a kid or a church. Would you deny the same right to a playwright? It's not a lot of money to pay for rights to perform "Oklahoma" at the local high school. Its a sliding fee depending on the size of your venue... But if Theatre Under the Stars in Houston, has hired a big name to star in their version of OKLAHOMA, they don't want another version playing down the street... even if it's in a High School.

The ammounts of royalties per performance are usually very small... that's why it's important to protect the NUMBER of performances... you want your small percentage to come off of EVERY performance.

"How does that hurt the record company" - I assume you mean by the illegal use of one song. "How does it help the record company" You might ask, to just legally SELL one song??? Houses are built and fall... one brick at a time.

And generally, the law allows you do do whatever you want with the music you own.

Except resell/redistribute it. And that is what a videographer is doing when he attaches someone elses work to his and sells it to the bride and groom.

Doesn't matter if its one song at a time.


Intellectual property is still property. Theft is still theft. Sure there are degrees of severity... just as there are degrees of penalty to reflect that. The person commiting the offence usually doesn't get to decide how severe his offence is AFTER THE FACT, so he should give some consideration to how the other side will see it, BEFORE THE FACT.

I have been on both sides of a lawsuit, my wife is an intellectual property attorney who counsels both large corporations, and "small churches and schools". Believe me, its much easier and usually cheaper in the long run, to just do the right thing.

That's a great argument, but I guess I just disagree philosophically. I'm one of those guys that thinks file sharing should be legal. I think the record industry and mucians make too much money as it is. Did I say too much money? Uh oh, I must be a communist ;)

We, as Americans, are so quick to feel sorry for all the bling bling musicians... oh no... 50 cent isn't going to be able to buy another two million dollar necklace this month... I knew I should have bought his album instead of buying baby formula!

I remember being a kid and taping songs off of the radio and then making mix tapes to take to school and give to the other kids. There didn't seem to be anything wrong with it and when I got enough money I'd go out and buy the whole album.

I understand that there needs to be intellectual property rights. I don't think you should be able to take someone's idea and use it as your own and I don't think you should be able to make money off of somebody else's work. I just think the laws go too far in some cases. Next thing you know I'll have to pay God royalties for filming outside.

Tony, visit the Creative Commons links I posted above and you'll see that there are artists that agree with you. From file-sharing to use of their music in derivative works, Creative Commons allows artists to have more flexibility in how their art is used by others.

That said, file-sharing really falls outside the purpose of the Taking Care of Business section, so let's address the use of someone else's music in, say, a wedding video.

You stated, "I don't think you should be able to make money off of somebody else's work. "

But this is what happens if you are being paid as a wedding videographer and you use someone else's music in the video (referring back to your comment, "What's it hurt if a couple wants "their song" on their wedding video?"). You are using someone else's creative work to convey and create a specific emotional response -- like they say, audio is 70% of what you see, and that song becomes an integral part of what you are getting paid to communicate, just as much as your camera work and editing. If that particular song wasn't so important, then you could put the Benny Hill theme there instead, right?

As for taping songs -- do you not remember the record industry's campaign throughout the 80s: "Home Taping is Killing the Music Business"? They didn't really want you doing it then, either. The advent of digital copying and worldwide file sharing via the internet simply made them take a more drastic action than just putting full-page ads in Rolling Stone.

And as an aside, philosophically, I think you would find that many of us generally agree with you. But in the TCB section, the purpose is to discuss the realities of business and law and how stay in line with these things while trying to produce our work. What could/should be is nice and all, but someone like Paul Tauger is going to give you the reality of it all, so you can best do your work.

Tony,

To address your objection that "the record industry and mucians make too much money as it is," read the following two articles about how most recording artist are lucky to make a living wage:

Courtney Love does the math, explaining how a million-dollar advance to a hot new band band means that they're only making $45 grand yearly after taxes.

John Buckman, the founder of Magnatune.com, explains why he started Magnatune, which mentions that artists get twenty cents a copy from sales of their CD's--if they're lucky.

I'm sure that Usher and 50 Cent and Bono and Sting all live pretty comfortably right now. But there are plenty of other popular artists who are just happy they can make a decent living doing what they love. (Cake, the band that brought you "Going the Distance" among others, had an album go platinum. So at that point, the band had made, what, $200K? What's making them money now? I don't think they've made the Evergreens list yet..)

Michael

John, I'll check out those links when I get a chance.

Mike, that's B.S. For one thing Courtney Love is far from a credible source of information. She's about as fake as they come. I wouldn't believe a word she says. If she's correct, then why does every single recording artist that gets a video on MTV end up with a multi-million dollar "crib". Even Tommy Lee has a "crib" with a Starbucks in it and he hasn't had a hit in ten years.

I really don't want to hear Courtney Love whining about how poor she is. Even if she didn't make a penny off of her own album sales or movie roles, she inherited Kurt Cobain's millions when he died. I don't ever want to hear a rich person whine about money. It's a slap in the face to the people that put them there.

<<<-- Originally posted by Tony Hall : John, I'll check out those links when I get a chance.

Mike, that's B.S. For one thing Courtney Love is far from a credible source of information. She's about as fake as they come. I wouldn't believe a word she says. If she's correct, then why does every single recording artist that gets a video on MTV end up with a multi-million dollar "crib". Even Tommy Lee has a "crib" with a Starbucks in it and he hasn't had a hit in ten years.
-->>>

That's a ridiculous exageration Tony. I know three people, personally, who have had hits on MTV in the 80's and early 90's, successful albums, and reasonably extentive tours.

One is a school teacher living in a condo and drives a Honda. The rest of his band is in about the same league.

One plays in small clubs and bartends. I don't think he owns a car.

The other is a local music producer, who is very small time. While he owns a house, it is a long way from a "crib".

Even at their biggest, they didn't make much money.

Hey, I can turn on VH1 any day and see a bunch of has-beens that should have invested their money better. That doesn't mean that they didn't make a killing at their zenith.

Now, I know that there are a lot of incredible artists that don't sell a whole lot of records and therefore don't make a ton of money. I make a point of buying albums from bands that I know can use the record sales. Someone mentioned Cake... I bought two copies of their latest album.

By the way, what exactly have I exaggerated? I believe Kurt's estate was worth 20 million when Courtney Love inherited it. He wasn't even THAT popular when he died... gee, I wonder how a grunge rocker makes 20 million. He must have sold 100 million albums according to Courtney Love's math!

This is what you exaggerated:

"every single recording artist that gets a video on MTV end up with a multi-million dollar "crib". "

I gave you three examples from personal experience, that prove your statement isn't true. They didn't make a killing at their peak, not even close to it. It takes a lot more than one hit, or even one hit album to make a fortune (with the exception of the rare, rare mega one hit wonders like MC Hammer and Vanilla Ice).

Regardless of Courtney's math, I'd bet a Northern Pikes album that she knows way more about the industry than you do.

As far as Kurt being not THAT popular.... How old were you in the early '90's?

As far as the rest of your logic, wow.

Oh, I appreciate your symptathy for the small musicians, I'd bet they'd be happier if you just bought one album, and kicked them an extra $20.....

Boys... your points have been made. Let's just agree to disagree.

<<<-- Originally posted by Tony Hall : There are people legally using other people's creations to help make their point... sometimes in situations that they could never get permission. Such as Fahrenheit 911's use of Fox News footage and Army commercials. So, how do they do it? -->>>

Tony, I'm not trying to be confrontational here but how do you know people are legally using other people's creations? Are you judging that by the fact that they haven't been sued? If so, I don't think that's a very good gauge of legality. I'm sure there are a lot of factors that go into the decision whether to sue or not. If someone is NOT sued that doesn't change the legality or illegality of what they did.

I could easily believe that MM used some news footage and used it without permission in his film. I could just as easily believe that the news organizations chose not to sue to avoid adverse publicity.

Good luck.

Dennis

Re: Re: Re: Copyright law
 

<<<-- Originally posted by John Britt : <<<-- Originally posted by Paul Tauger : No. There is no magic time limit, nor is there a magic number of notes or bars. One of the tests for fair use (which is a defense to infringement) is the substantiality of the amount taken, but there is no magic formula.-->>>

Interesting. Way back in high school I took TV Production -- we did a daily/semi-daily newscast, the video yearbook, and other wedgie-inducing things. The teacher specifically taught us that we could use up to 30 seconds of any song before it would be considering infringement. -->>>



Wasn't there just recently a court decision that said no amount of sampling was legal? I thought some group had used a tiny few notes sample from another artist but were found out and successfully sued. I forget where I heard this.

Good luck.

Dennis

<<<-- Originally posted by Tony Hall : I remember being a kid and taping songs off of the radio and then making mix tapes to take to school and give to the other kids. There didn't seem to be anything wrong with it and when I got enough money I'd go out and buy the whole album. -->>>

Of course, the big difference between that and what is going on today is that those second or third hand analog copies often sounded like crap. No one would mistake one of those dubs for the real thing.

Today, digital technology allows anyone to make a perfect copy an unlimited number of times with no loss of quality. A big difference.

Good luck.

Dennis

"I've always heard references in TV shows and stuff like "that's all we can play of that song or we'll have to pay royalties"

I believe Krusty said that in the Simpsons, and it's a joke.

Re: Re: Re: Re: Copyright law
 

Which is why the teacher was teaching high school, rather than practicing law. Your teach was completely, utterly and totally wrong.

Quite the contrary. Sampling is fine IF it comes within fair use, e.g. the Pretty Woman case. It's not fine if it results in infringement and fair use doesn't apply. There's nothing magical about sampling that distinguishes it from any other kind of copying.

Well this thread has taught me that I shouldn't have even brought up the topic here. Most people here are biased and will try to convince you that everything is illegal... even things that are done constantly... especially in documentaries. When the time comes, I'll hire a lawyer; a good one who wants to help me find ways to help me get my work done and will fight if necessary.

<<<-- Originally posted by Tony Hall : Well this thread has taught me that I shouldn't have even brought up the topic here. Most people here are biased and will try to convince you that everything is illegal... even things that are done constantly... especially in documentaries. When the time comes, I'll hire a lawyer; a good one who wants to help me find ways to help me get my work done and will fight if necessary. -->>>

This statement fascinates me.

I _am_ a lawyer, one who practices intellectual property litigation. Do you really believe that knowledge of the law makes me "biased"?

If you hire a lawyer (which you should, rather than depending on free advice on the internet), he or she will explain the business risks of pursuing a particular course of action. You will make the decision whether to risk the liability. No lawyer, however, will be able to tell you, "Here is how you "get around" copyright law."

<< Well this thread has taught me that I shouldn't have even brought up the topic here. >>

Actually I'm very glad the topic was brought up, even though it's a fairly common, frequently discussed subject, it never hurts to have it at the forefront from time to time. We're very fortunate to have an attorney here who is very well experienced with media law and copyright issues and who is willing to answer these sorts of questions. The answers may not be the ones you want to hear but they are the truth and Paul does an excellent job of explaining the law -- not the way things should be, but the way they are. That's a highly valuable resource for all of us.

<<<-- Originally posted by Tony Hall : Well this thread has taught me that I shouldn't have even brought up the topic here. Most people here are biased and will try to convince you that everything is illegal... even things that are done constantly... especially in documentaries. When the time comes, I'll hire a lawyer; a good one who wants to help me find ways to help me get my work done and will fight if necessary. -->>>


I am utterly flabbergasted...

We are "biased" because we don't give you the easy answers you are looking for? You have posted broad generalizations which have been refuted with both advice from an actual attorney as well as with real-world examples. let's take a look:

You wrote: "The music industry isn't going to sue a highschool, a church, or a kid making a tape for his grandparents. [...] try suing a church... not in this country... not unless you've been molested."

This was refuted with real-world examples of both a church and a school being sued. To which you backpedaled: "Ok, I didn't say it was impossible... just very unlikely."


You wrote: "I remember being a kid and taping songs off of the radio and then making mix tapes to take to school and give to the other kids. There didn't seem to be anything wrong with it ..."

This was refuted with a real-world example of how the record industry spent a good bit of money back in the 80s promoting a campaign that said "Home taping is killing the music industry." Obviously, they did think there was something wring with it. You never responded to this statement.


Your arguments then degrade to the level of "every single recording artist that gets a video on MTV end up with a multi-million dollar 'crib'." Which isn't even worth refuting, but still the members here try to set you straight.


As Paul said, if you are serious about creating a documentary, you need to hire a lawyer, instead of looking for some pat words of support on the Internet. And as I stated before: "Philosophically, I think you would find that many of us generally agree with you. But in the TCB section, the purpose is to discuss the realities of business and law and how stay in line with these things while trying to produce our work. What could/should be is nice and all, but someone like Paul Tauger is going to give you the reality of it all, so you can best do your work."

I'd much prefer that a site like this give me the most cautious advice possible, instead of just saying "lots of people do it, so why don't you." We are incredibly lucky that people like Paul post here. He's going to give you the truth. Too bad you can't take it.

You're right, you shouldn't have posted this question here. You shouldn't have posted it anywhere if you weren't prepared to listen to the facts (from a lawyer, no less!)

Now Chris will come and tell me to cool off, but I must say that I don't normally reply with such frustration to posts here... this one in particular just had to come off my chest...