Legalities of use of music in wedding videos
 

You're obviously very talented so maybe you've comeup with a workaround that the rest of us haven't figured out. Just wondering. Maybe you'll respond here.

If it is copyrighted--its not legal. That simple. THere is no answer.

Or move to Australia and pay the $400/year to have the rights. So the real answer is to get this system working in other countries.

Agreed. Perhaps the DV Info Net community should band together and spearhead this effort here in the U.S. I think just about everyone from wedding videographers on up to I.P. and Media Law attorneys agree that it's high time for a change.

Chris, does the AU system authorize videographers to use ALL Australian artists, or only select music? Whatever I was looking at seemed to have a restricted list of music covered... And it does not cover artists from other countries at all, right?

Thanks Chris!
 

I have hesitated to respond to various threads in this forum, because I thought I was the only one thinking this way. It is definently time for a change!

I will use some of the research I have garnered, to expound more fully later.

Change needs to be discussed. Perhaps this is the thread to put it into.

Mike

His work is really, really good (which is great!) but it's a problem for me that he's a mod here (which is also great) and he uses infringing music in his work (not great). It sends a very wrong message.

I thought it was only bad if you got caught ;)

I think the same way Chris and Mike do. It's time for a change. Like it or not, Napster forced change on the record companies to make music available for download. Now, we have it and I can buy songs legally using Itunes or other online music stores. It works because the fees are reasonable. I have no problem shelling out a buck for a song. Now, the next step needs to happen. I know all the arguments for and against but the current system is broken.

The irony in all of this to me is that a new band or singer will start their careers literally begging to play somewhere so that their music can be heard. I think the vast majority of musicians would be happy to have their music featured as a background track for video. It's all the other bottom feeders attached to a popular band that don't want this to happen unless they can get a piece of the pie.

This discussion comes up so frequently on this board that we should spearhead an effort to make a change. I like the AU idea of an annual fee that isn't so exorbitant that a small production house can afford it.

Another good example of this principle is where the national speed limit was set at 55mph. Virtually NOBODY adhered to this law because it was absurd to drive that slow on a major interstate highway which was designed for vehicles traveling at higher speeds (ie amount of banking on curves and overpasses). So guess what, the states got tired of the federal limit and raised the speed limits, even at the risk of losing federal highway funding. Nuff said.

I'm not sure exactly how to accomplish this except to say that the research and statistics need to be gathered. A former business associate of mine was fond of saying 'he who has data, wins'.

regards,

-gb-

I agree it's time for a change of some sort. At the same time, I'd expect the creators of the works to rightfully say "If you want to use my work, you have to pay me for it." Regardless of whether we're video pros or have some other "day job" we don't work for free and can't reasonably expect others to either. How would we feel is we discovered clips of our video work had been published by Sony or Canon as examples of their camera quality without our permission or any payment to us?

I regret that Glenn may have taken my comment on his music usage in the other thread the other day as negative criticism. Far from it. (Though I would join with Patrick in saying that the moderators on this board are set apart as examples of the industry whether that's their intention or not and as such need to be extra cautious to be "squeaky clean" in their professional practices and set good examples for newcomers.) Glenn's work is outstanding and I'd love to keep seeing more. But that's going to be hard for him to do if some pack of wolves - ooops, I guess attorneys is a more polite term - from the RIAA and ASCAP and BMI comes along and takes away all his equipment to settle a lawsuit. Hard to frame those lovely shots through the bars of a gaol cell and I'd just as soon he stay free and contributing.

"I agree it's time for a change of some sort. At the same time, I'd expect the creators of the works to rightfully say "If you want to use my work, you have to pay me for it.""

The problem with that is, the musicians only get a few pennies from the sales or lease of their music. The only ones getting the big bucks, are the ones who hold the license- ASCAP, BMI, and the rest of the corporate fatcats.

Copyrights and Patents, a short course!
 

Most copyright registrations are easy and straightforward to obtain, and in most cases a layperson can obtain a copyright registration for little more than the $30 and a short amount of time. And, in truth, you don’t even need to file an application at all. You can just do it anytime later if you need to. You don’t really need it unless someone tries to use your music, etc., without your permission. The filing fee for registering a copyright with the U.S. Copyright Office is about $30. The US Copyright Office will, for a higher fee, do a registration on an expedited basis as well, for example if litigation is imminent. Try that with a patent!

The owner of a registered copyright has the ability to blocking the unauthorized copying or public performance of a work protected by copyright. Depending on how old a work is, whether or not copyright was renewed, when the work was published (if at all), and whether or not it is a work for hire, the U.S. copyright term for a work may be 28 years, 56 years, the life of the author plus 50 years, 75 years from the publication date, or 100 years from the date of creation.

Contrast this with a U.S. patent. It is obtained only after preparing a very detailed patent application, and then only after a patent examiner, in Washington, has determined that the patent application is allowable. Many if not most patent applications filed, never yield an issued patent. The patent application process typically costs at least a few thousand dollars and sometimes tens of thousands or more, including the fees of a patent attorney or agent, and can take a year or more to get. If you are able to get your patent it is only good for 17 or 20 years, the term of a U.S. utility patent. And, of course, this is just a U.S. patent, and not an international patent!

Again, to show the contrast, a copyright registration is granted almost as matter of course upon filing a relatively simple and relatively inexpensive copyright registration application, and you do not even need to file to be protected!

Another contrast between the two, is that if you invent something, then sell one of them before you obtain your patent, you only have one year, from the date of sale, to file for the patent. If you do not file within that year, you lose the ability to file and anyone can make and use your product or idea.

Copyrights and Patents, why the difference!
 

Article I, Section 8, Clause 8 of the U.S. Constitution, Congress shall have the power…..“To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

Copyrights actually started in 15th century England, because of the invention of the printing press. For a great read on their history, check this site:

http://arl.cni.org/info/frn/copy/timeline.html

First, why is the term of a U.S. patent only 17 or 20 years? The reason it is so short, compared to a copyright, is that the decision was made long ago by the government that new inventions or products were best delivered into the hands of the people as quickly as possible. In other words, if something great is invented, it is in the best interest of the general public and mankind, that it be available to everyone. This is why we progress so fast technologically and so forth.

For example, take the invention of the transistor and the silicon chip. If patent terms were very long or even indefinite, where would we be now if Texas Instruments had just said, no you can’t use our ideas? I doubt any of us would be holding those neat cameras we have today!

These rules on patents work very well for the general public and have not changed very much. I do believe that the term of a patent was only about 12 years not that long ago, and was increased just recently. This was done, I believe, in order to allow the holder of the patent a little more time to profit because of rising costs and time constraints. For example, we bash the drug companies for the high cost of drugs, but it can literally take 20 years and billions of dollars to bring a single drug to the market place. Then stand-by for the lawyers and the law suits!

Again, it was in the best interest of the general public, that patentable ideas or inventions be brought to market quickly.

Copyrights, however, are viewed somewhat differently. Writings and music are viewed more as art, without the need for them to be given to the public for general use so quickly. I think that that is where the changes need to start.

The Sonny Bone Copyright Term Extension Act (CTEA), of October 7, 1998, passed by congress and signed by President Clinton added another 20 years to most copyrights. Nothing like self-interest in congress!

Anyway, the length and terms for copyrights vary greatly and, because of modern technology, upholding copyrights is nearly imposable. The vary technology that gives all of these great toys like cameras and computers, makes enforcing copyrights imposable.

Someone mentioned the 55 MPH speed limit in an earlier post. It was not very practical, it was not really possible to enforce, and it was changed. But, it would have very practical say in 1920. No problem at all! Time and progress are why the copyright laws need to updated also!

How the Copyright Laws need to be changed!
 

This is where we will open up that big can of worms!!!! I’ll start, and then let the others join in.

First, I think that the laws should be rewritten to make them easy to understand and enforce. They should be more standardized as to what they cover and protect and the length of the protection. Get the lawyers out of the game!

Second, the terms need to be shortened. The life of the author + 50 years, 100 years from date of creation, that’s ridiculous! Still probably longer than a patent, but not that long! Because we use music and such in more ways now than ever before, it has to enter the public domain quicker.

Third, perhaps all copyrights should actually be filed for. If you don’t file within a reasonable period, it is not protected. It’s about $30.00 and a little work, is that too much to ask, if this is how you wish to make a living? This would probably save a lot of confusion.

Fourth, (reference number three above) Establish a central database. Having copyrights on file for everything that is protected, would make it easier to contact the owner and get or buy permission to use his material, and protect against illegal use. A central database could even be established where you just go and buy the rights to use say, “The theme from Titanic,” in your wedding video. Have a varying fee schedule for the type of use you have for the material, but establish a set fee schedule. It does not need to be the same for every piece of music for example, but just established and written down. Isn’t there a set fee paid by radio stations for playing an artists song on the air? I think the artists may even make more money, because they would get paid for a lot of what is now ripped off!

I’ll stop for now and let others chime in. Let’s just see if maybe we can start the ball rolling toward change!

Mike

Why not bioengineer our bodies to heal themselves better so we can get doctors out of the game? :)

Actually ASCAP and BMI don't hold the licenses - they are clearing houses for rights clearances, taking care of the paperwork and keeping a fee for their trouble.

I was wondering where Mike was going with the patent examples but I like that idea. Music should re-enter the public domain after a shorter time period. But I still think that ASCAP and BMI should be forced into a policy change that allows the smaller business folks a chance to legally use copyrighted music in their video productions. As it is now, they seem to enjoy forcing the little guy out of the game. Again, Apple's iTunes is a great example of getting folks to go legit. They are rolling quickly toward their 500 millionth song download.

Hmmm, it won't be easy.

-gb-

Ah, you are the master of understatement, and you are sure right.

Mike

Actually, ASCAP and BMI will tell you that this is not their problem. They only do performance rights. I know. I was told so when I said they should talk to their peers to solve the issue.

Well, the first organization who makes it their problem stands to secure a big win for everyone involved. One very simple fact is that even though it's cut-and-dry illegal, videographers are using copyrighted works in their productions. Another simple sad fact is that videographers will continue to use copyrighted works in their productions. And the last simple hopeful fact is that many videographers are standing at the doorway begging for a simple way to hand someone money to legally use those works. I'm one of them, and I know most everyone frequenting these forums stands with me.

I've lost business because people want me to sync their precious moments to copyrighted works and I gently explain to them that it's not legal to do so, but there's a plethora of legal music out there they can choose from. "But that's our wedding song!" or "But that's the song that was playing when we first met!" So they thank me for my time and proceed to videographer B who doesn't have a problem using the song.

One argument I've heard is that artists may not want their music used in your cheesy photo montage. My counter argument is that the same artist might not want some stripper doing a pole-dance with their song playing in the background. But there's nothing stopping the strip club from playing it as long as they belong to ASCAP and BMI. Providing the song to the ASCAP or BMI catalogs gives up a certain amount of control of how the song is used. The same must be expected of a video licensing system. The main difference is that (with proper licensing restrictions) a smaller audience will be viewing the work. Who besides the wedding couple will ever see the video?

"But it isn't fair that you use another artist's work in your productions to make money!" Well, every nightclub on the planet makes money by playing copyrighted music that they've legally licensed. The first nightclub that only plays royalty-free music will be out of business by daybreak.

The bottom line is that the only real difference between now and after the advent of an Australian-like licensing system is that a new influx of money will come streaming in the direction of the artists and publishers once the powers that be step up and make it feasable.

-Brent

Point #1---Yes, maybe they would not want it used in some "cheesy" way but, this is not really a reasonable request in todays society. There is way too much music available to just arbitrarily call it all classic art. Even if you think it is art, what prevents someone with money from buying, say the Mona Lisa, and hang it in his or her strip joint. Even if they wanted to, Haas Machine Tools, in California, cannot stop someone from buying one of there fancy $50,000.00 CNC, (computer numeric control), machining centers, new or used, to make molds for dildos! More than ever before, music is now just another tool. It is used just like other tools, to perform a function, i.e. emphize a point, add punch to a video, or provide a soothing background. And, that is just what the normal layperson or videographer wants to USE it for.

Point #2---Yes, of course it's fair that those who buy your music, put it to commercial use and make money with! It has been going on forever. Look at radio stations. That is exactly what they do. They buy the use of the music to attract an audience and the try to sell them things between songs. If Glenn Elliot wants to buy a piece of music for a fee and use it in a wedding video, that's just normal business. Again, most music needs to be viewed as just another tool used to make both the artist and the buyer money.

Point #3---I think you are right, that the artists may just end up making more money. Nothing would prevent the next "American Idol" from making a big hit, selling records and going on tour. Then he or she can sell the rights to Glenn Elliot. But, the little guy who can't get his stuff even heard, can put it on the market and maybe make a buck or two, and maybe even get discovered!

If my old memory serves me correct, it has happened somewhat like that at other times. How about the 60s I think, when Freddy "Boom Boom" Canon was hired to write and sing a song as a radio commercial for Palisades Park. I think it went high on the charts and he became a hit. I could be wrong, but he may have struggled with his music up until that point.

Anyway, good points Brent. Let's hear from others! Chris, you suggested this thread turn!

Thanks all,

Mike

I'm just a noob here, but here is an answer I want to believe (this came from a lawyer, but as far as I know, has never been proven by legal precident...)

Typically, a wedding video is not intended for public performance. Therefore, if the owner of the wedding video (the bride and groom) own a legal copy of the music in question (in other words, a CD) then there is no copyright violation.

So if a B&G asked me to include a specific piece of music in their video, I would purchase the CD, use the music in the video, and give the CD to them along with the video. If they choose to pitch the CD or sell it on eBay, it's their problem.

As far as using copyrighted music in business videos, I just don't do it.

On the surface that sounds fine, but the problem is that your financial wellbeing could potentially be linked (farfetched or not) by a lawyer to you using well-known music (which then people would be emotionally connected to) in your production. You're making money using an asset you shouldn't legally be using - probably similar to using pir8'd software to make money (maybe).

'Would your work have the same impact had you not chosen that piece of music?' That type of thinking...

Unfortunately, from what I've been reading lately, there are a number of cases involving exactly this scenario - the videographer either used the B&G's personal copy of the CD or he purchased a copy of the disc and gave it to the couple as a wedding gift after copying off the song they wanted. Our very own DSE discusses this and other issues in his article right here in the main site -

http://www.dvinfo.net/articles/busin...yrightfaq1.php.

I've read that in every case where this has come to trial it was held by the court that this was not a valid application of the "fair use" doctrine and the videographer's involved have consistently lost big time, losing their businesses along with all their other assets in the judgement. It's worth noting that purchase of a CD at retail only converys a license to listen to it. While the law specifically permits one to make a backup, it would be hard to argue that the copy on the video was made solely for purposes of backup of the CD in the event of loss or damage to the original disc. Beyond that, the rights converyed in purchasing the CD do not include the "synchronization rights" that allow you to link the music to the video images - those rights are a category in their own right.

Chris, Patrick, Steve,

Good input and just why this thread is here. Keep it coming guys.

Mike

I'm wondering about the details of this "Australian System," how it works exactly, who created it, and who manages it? FWIW, AFAIK there is nothing in the law that I know of that requires a copyright owner to license his work through BMI or ASCAP, they are private business entities offering a service on the open market and copyright owners are free to use their services or not as they see fit. Their line of business may be performance licensing at the moment but they could begin to offer synchronization licenses overnight if they wished tp do so and their client copyright owners wished to have their works included - it's only a new product line and doesn't require any changes in the law for them to begin offering it. The fact that they don't can only be explained by the conclusion that the owners of the works in question don't want them to do it, and as owners of the work they are perfectly within their rights.

As I understand the law, copyright involves the ownership of a piece of intellectual property. Like any other item of property, the owner has total control of if, when, and under what circumstances that property is sold, licensed, or used. With the exception of the doctrines of imminent domain and in cases of breach of contract, the law can never compel a property owner of any stripe to sell his property to anyone. So if the copyright owner would like to offer synchronization licenses or to be included with a group of other properties under a blanket license arangement of some sort is he perfectly free to do so right now without any changes in the law being required. Likewise, any change in the law that would compel a copyright owner to license his work when he does not wish to do so would be tossed out post haste under the common law standards that hold a property owner cannot be compelled to sell.

Steve, see http://www.ag.gov.au/DigitalAgendaRe...ecommendations -- it's a version of fair use which they call fair dealing.

Anybody here belong to WEVA? I'm tempted to pony up the membership fee just so I can pose these questions to 'em. Surely this topic has been thoroughly broached by that org?

But that's almost exactly what ASCAP and BMI do. Remember it's not just the artist that owns the property, but also the publisher. While either/both could elect not to have the song belong to the ASCAP or BMI catalogs, once they agree to license it to either of those organizations, they give up the stipulations under which that song can be played. They lose control of their own property in a sense.

A large lobby effort is needed.
 

The trickle down element has landed here from the beaurocrats in Ottawa who skim a fee from every piece of blank media sold at retail to recompense the authors of musical works in a purely knee-jerk reaction sort of way as an answer to the proliferation of peer to peer file sharers. So I pay musicians a fee every time I produce my creations and burn 'em to disk. Fair? Where's my dispursement as an artist!

Will you see a retail style clearing house for one time use, not for broadcast sync to video licensing for the little guys? Not anytime soon. The rights holders (publishers) just aren't set up for it, nor do their philosophies subscribe to it.

2 options exist.

1. Tread carefully and stay below the radar as you quietly eek out a living by using music tracks without paperwork as described above, and your clients will never need to hear your dissertation of copyright etc.

---or---

2. Get really good at your abstract non ceremony park,hotel,parking lot,drunk guest impromptu acts of bravery camera work and make kick ass reels that allow the use of royalty free, no needle drop fee music beds.

I use option 2.

well for some reason, my detailed post about licensing coywritten material (audibly and mechanically) seems to be lost.
head off to http://www.apra.com.au/music-users/a...t_licences.asp

for info on how it works

This what we are proposing to change. Let's not give in yet!

Your Options one and two are not any solution at all. How about option three: pay a resonable fee for the use of the music you want and that's it!

That is what this thread is all about!


Thanks Jimmy,

Mike

Thanks Peter! I had not seen this post yet. Not sure that I fully understand it yet, but I bookmarked it and will read and re-read. Perhaps someone who uses this system on a regular basis will help us decipher it. You know, referance wedding videos, promos, etc.

Mike

That may be true, but it's still a far cry from a law that compels a copyright holder to license his property if he does not wish to do so. Songs don't just automatically come under BMI or ASCAP jurisdiction when published or recorded. The owner of the song, whether it's the artist or the publisher or my old aunt Grundy who inherited the rights from her composer father, must give the clearance house the authority to license it out on their behalf. Their contract with BMI or ASCAP may include terms that limits their right to control who the clearance house licenses the work to but that again is purely a matter of the contractual relationship between the copyright owner and his licensing agent and not a matter of legislated law.

It would be great if we could and there's nothing stopping the present clearance houses from offering such licenses literally starting first thing next Monday morning (give 'em a couple of days to design the forms and post them on their web sites). How complicated can it be to set up a system where we submit a cue sheet and pay some reasonable rate for each song used in a non-broadcast, non-public-performance, not-for-public-retail-sale production, with a rate based on the use and size of the duplication run. After all, they can manage it now for performance clearances for every mom-and-pop karayoke bar, neighborhood pub juke box, and school play and band performace so it's not like a system for handling the paperwork isn't already in place. But other than using the power of persuasion and lobbying the present rights holders and clearance houses and showing them how it's in their self-interest to do it, I don't see how we could have a leg to stand on. AFAIK, its just not something that could be imposed by legislative fiat any more than the government can come along and tell you you have to sell your car to the kid down the block who wants it. We want it and we have really good reasons for wanting it but that doesn't allow the law to force the owners to let us use what is still their private property.

I agree with you Steve in that it will never come to a mandatory licensing of an artist's work. The artist/publisher will (and I think they should!) retain control of how their work is used. The can choose to have it in the ASCAP/BMI catalogs, and they should be able to choose whether it's in the sync catalog or not. I hope my points didn't suggest we should force the issue on an artist.

My point is simple: If you're standing in the middle of nowhere and someone walks up to you and says, "You can stand here and not get paid or you can stand here and take this money." Either way you're standing. Why not get paid? The choice is obvious. It's simply another avenue for an artist to make some cash.

Or you could look at it like the RIAA did. People were rampantly stealing music online. So the RIAA fought and fought and fought, with little avail. I'm sure tons of money was spent on legal recourse to try and stop the downloaders. Did it work? Nah. Might have made a small dent, but that's even debatable. So what did they do instead? They said, "Fine, you don't have to pay $18 for a CD. We'll let you buy a song for $0.99." Given the choice to make no money (actually spend tons on legal fees), or make some money by opening a new revenue stream, they chose the latter.

The same is true about the system we're proposing.

Hi Steve,I think this is the second or third time you've mentioned the spectre of compulsory licensing, and I think it's time we buried this fear. I don't think anybody here is miltant enough to advocate such a thing (at least I sure hope not). The proposals discussed here are all about easing the clearance process, and I think we can assume that this would be limited only to those copyright holders who support such a thing and wouldn't mind earning those additional royalties. In other words, let's assume from this point forward that we're talking only about a revised copyright / licensing structure that begins with an opt-in from the original copyright holder; in this way we can put behind us the ludicrous notion of mandatory licensing. Let's all agree that we're limiting this discussion to the assumption of an opt-in by the original artists, ala "American Idol." If it's a Top 40 hit that is commonly cleared for a variety of other venues, then there should be a "wedding video" option there as well. I believe if you poll most popular music artists these days, they would probably support such a thing. Let's say we're discussing this revised structure which would apply *only* to those artists who approve it, so that we don't have to travel down that ugly mandatory / compulsory road again. Thanks in advance,

Yep, makes perfect sense to me - and so we need to start lobbying intently with the clearance houses to start up such a licensing program. If I could get a one-time-use license for $10 to $50 to use the theme to Titanic in up to 5 copies of a wedding video that's not going to be licensed for broadcast or sold to the general public, I'd be more than happy to pay up and then build the cost into my rate structure. I can see saying to a client "Yes, we're glad to use your choice of music but if you want songs off of XYZ's CD there'll be an additional charge of $25 per song to cover the royalties to the copyright holders" and I doubt there would be much customer resistance. (If the license fee was $1000 it would be another story.) My point is that lobbying the government to change the copyright laws won't accomplish anything because the present lack of such licensing is not a consequence of the current copyright laws in the first place.

umm.. well i put up a post in the wedding/events forum about the licensing and use of this copywritten material.

The link i sent gives a rundown of how it works, its not all that technical, however the fact that it covers the "mechanical" use of said music allows me to use with a piece of video in sync (this si a new thing, in the past this didnt exist).
The payment i make to the licensing body covers the artist/publishers "fees"

The model there is a good one however. If you do want totake it further, get in touch with AMCOS and ask them whether they have considered going international.
The only way to find out is to ask..

I wonder - does this mechanism you have in Oz apply only to music published in Australia or does it also apply to works that would be "foreign" from your point of view? Could you, for example, use a song off of Celine Dion's last CD to be released in the USA under the same rules as you could the work of a local Australian performer? If so, that leads to another speculation - if an American shooter were to incorporate in Australia, would they be able to license works from American copyright holders through the Australian system and then sell the product to an American client? A lot of corporations incorporate "offshore" to take advantage of tax laws and so forth, I wonder if the same mechanism might work here. Heck, about half of the world's merchant ships are registered in Liberia and that country doesn't even have a seaport of any consequence!

Since this thread has evolved so much, I'm changing the title.