How much to charge for this, and what about tax?

[Mark Williams]

There has been some great advice here but Sebastian is going to do what he thinks he can do. I don't think he will be persuaded otherwise regarding music rights and their application in this situation.

On DVD production here is a great article on dual layer discs which is what he wants to do DVD-9 Compatibility: Creating a Suitable Master for Replication | Disc Makers? Echoes – Insight for Independent Artists
There seems to be some issues duplicating them and having them compatible with most DVD players unless specific procedures are followed. You can fit 2 hours on a DVD-5 disc if carefully encoded. This might be the better route to go vs. issues with dual layer compatibility.

[Sebastian Alvarez]

Originally Posted by Steve House

Public viewing of the video is not the issue other than public viewing such as posting on YouTube increases your chances of getting caught.

OK, but wouldn't that be as easy as having a clause in the contract and in each order form specifying that copying or extracting the content of the DVD is strictly forbidden, as well as posting all or part of it online?

Originally Posted by Steve House

Public SALE of the video is problem. And you're engaging in public sales of the music when you offer it to the audience for purchase.

That's where we disagree. Public sale would be if I went there, recorded the event, produced the DVDs and then tried to sell it to anybody. For this the school would basically take pre-orders from parents whose children are in that particular recital. What I'd be doing is documenting their children dancing, they'd be paying me for that service, they wouldn't pay because they see it as a replacement of the music in the recital and they would see it as an alternative to buy the CD. Like I said, most likely that would convince them to order a bunch of CDs or at least the legal downloadable songs. So it's not music piracy by a long stretch.

Still, I'll see if I can check with an IP lawyer that doesn't charge me an arm and a leg for a few questions. Obviously I won't do it if it will put my at risk of losing everything, regardless of how small the risk might be.

[Sebastian Alvarez]

And by the way, does anybody know where to find out if I would need licensing for this, what would it cost, and what's the process to obtain those licenses? I mean, would it be ASCAP, BMI, the RIAA, the label of each artist? When a TV producer has to purchase the rights to use a song in an episode of his show, how do they do it?

[Sebastian Alvarez]

Originally Posted by Mark Williams

There seems to be some issues duplicating them and having them compatible with most DVD players. You can fit 2 hours on a DVD-5 disc if carefully encoded. This might be the better route to go vs. issues with dual layer compatibility.

I would never do that. To me quality is a top priority, and no matter how good the encoder is, at 4.5 Mbps you can't have decent video. Maybe it was tolerable when watched on CRT TV sets, but even 9 Mbps MPEG 2 video shows mosquito noise in a 46" LCD. 4.5 Mbps is just horrendous.

If it was up to me DVD would be buried for good. I don't understand why when a Blu-ray player is only $50 or $90 for a decent one people are still fixated on getting DVDs for everything. I'd happy if I'd only had to give my customers Blu-rays.

[Steve House]

Originally Posted by Sebastian Alvarez

And by the way, does anybody know where to find out if I would need licensing for this, what would it cost, and what's the process to obtain those licenses? I mean, would it be ASCAP, BMI, the RIAA, the label of each artist? When a TV producer has to purchase the rights to use a song in an episode of his show, how do they do it?

ASCAP/BMI/SESAC licenses do not cover this so they don't apply. They are performance licenses, which the venue must obtain to play the music in front of an audience or a radio station must obtain whenver the music is broadcast. To use existing music in a soundtrack alongside images you need TWO separate licenses. One is the sync license, obtained from the owner of the copyright on the words and melody itself, typically the publisher as representative of the composer and lyricist. That entitles you to use the music per se. But you're not done yet. Each RECORDING of the music by a particular artist carries it's own separate independent copyright, so to use an existing recording (rather than making a new one yourself of a new performance) you also require a master use license from the owner of that copyright, typically the record label that released the recording in question. So if you want to use "Stardust" recorded by Frank Sinatra, you get the sync license from Warner/Chappell Music, Inc., Universal Music Publishing Group, EMI Music Publishing as publisher for the the composer Hoagy Carmichael and the Master license comes from whatever label has released the CD you're getting it from.

A regular TV producer / production company has a rights clearance agent or department that takes care of the legwork. Rights clearance agents know who to call to clear songs quickly and economically.. But it's not always straight forward even for major producers - for example there are a number of TV series from the 60s and 70s that aren't available on DVD even though there is a fan base wanting them because the production company owning the rights to the show itself and wanting to release a DVD version can't clear the copyright for the additional use on some music in the original soundtrack .

[Dave Blackhurst]

Sebastian -

Once again we have a huge debate over copyright... it's a mess, yes, but also something that will eventually sort out. There are MULTIPLE licences for a given work, and that's part of the problem. It's a system that evolved around (and you'll find many of the terms directly refer to) technology like "phonograph" that are simply OBSOLETE. Digital changed the possibilities, law IMO has yet to catch up... My local court still uses typewriters... and few utilize e-mail or other electronic trasmissions.



I tend to agree with the "incidental" capture argument, but it's tougher with a DANCE recital since music is integral to the event... to me the strongest argument is that IF the parents can record it for themselves (and typically they can, perhaps even with HD cell phones...), providing the ability for them to get a better quality recording of the same event should become a clear exception, as long as you are "documenting" an event as it happened, for the benefit of those in attendance. It's as far as I know a completely untested affirmative defense, and whenever you get attorneys into the mix, and a "justice system" that IMO is highly suspect, it's a gamble as to how things would end up...

Your friend has consulted a few attorneys who are of one "opinion", others here have consulted other legal advisers and come to different "opinion". Such it is with legal matters, and what is legal or allowed can just as quickly become illegal or vice versa, depending on the "opinions" of a few special people in robes, who end up listening to the aforementioned attorneys of differing OPINIONS argue, and make a ruling which may or may not stand on appeals or future cases reviewed by "higher" Courts. One side wins, one side loses, and the attorneys ALWAYS win...

One thing for certian is that there is a HUGE untapped market for rights clearing in the USA, and until such a thing exists, we'll have these discussions!


edit: Steve explains the multiple license thing rather well, so you can see the interesting challenges presented trying to clear a specific "work"...

IMO this is SOMEWHAT offset in digital reality by the fact that YOU aren't syncing, or reusing the "work", but just capturing the actual documented event as is happened, so it's VERY different from someone producing a movie where each choice is carefully thought out to enhance the end product. YOU are simply documenting a bunch of kids bouncing around on stage, hopefully artfully, for the benefit of those who are interested in those specific kids (and who wants to watch someone else's kids stumble about, really?).

[Sebastian Alvarez]

OK, so this afternoon I went to see an IP attorney, not just any attorney, but one specializing in intellectual property and patents and has been for about twenty five years, and he told me I have nothing to worry about. First off, the client is responsible for obtaining the license to play that music at the recital, and since the owner of the institute pays for that license, that's covered. But even if that license is not a sync license for video, this is not a video for public broadcast or public sale. The institute will hire me to document the recital, edit it and give them as many copies as they need, but my role there is as a work for hire. He told me it would definitely be different, and then there would be copyright issues if I went there out of the blue with my cameras, recorded the recital (provided they didn't call the police to kick me out), and then tried to sell it to the institute and the parents, and to anybody who will buy it.

I asked him if it would be preferable in that case not to take the money directly from the parents (which is what the institute prefers), but instead for the institute to collect the money from them and then pay me the whole amount, and he said that would be the best option, because it would make it even more clear under the law that I was just a professional for hire to document the event.

I also asked him about the weddings, specifically what to do about the music that is captured using the cameras mikes, such as the bridal march, first dance, party music, etc, and he said that's not infringement based on the same principle, that the DJ is supposed to pay a license to play all that music and that I'm just documenting the event. Obviously he confirmed what we already know, that we can't use a copyrighted song to do a highlights video or any other use. But as far as the music that is played by the DJ and recorded on the camera, that's not a problem, since it's for private viewing of the couple who hired the videographer to document the event.

What he wasn't 100% sure about is if I'm liable if I put a highlights video on my website with short portions of the wedding that include a few seconds of the first dance, or the party music, as recorded with the cameras. He thinks it's probably infringement because it's not private viewing anymore, but he was going to double check and get back to me.

So there, basically he told me the same thing that the other lawyer told that other guy I spoke with. So we can put this to rest.

[Allan Black]

And you can go back to working out if you're going to make any money from selling the DVDs :)

Cheers.

[Mark Ahrens]

I second the Kunaki solution.
But in the case of in-house productions, look into CIS systems (continuous ink supply) . . . so much better than cartridges. For quantities over 30 i usually just output color copies and have them trim them.
Best of luck to you.

[Sebastian Alvarez]

Today I talked to another IP lawyer, and basically he told me the opposite of the first one, that it would make me liable for the music in the video, not only me but the owner of the institute as well. So I'm going to keep checking with other lawyers to decide for good if I can do it or not. At least they didn't charge me anything for the short consultation.

[Chris Medico]

Your second opinion is more right than your first.

[Sebastian Alvarez]

I sent an email to another IP lawyer in my city who seemed more specialized in music copyright, and he replied that "you will generally need licenses in each of the scenarios you describe, which in most cases are prohibitively time consuming and expensive", and then offered me to discuss further for $275, which no way, but at least he gave me the general answer I needed. So I told the institute I wouldn't do it.

At some point videographers have to get together to organize a way to make the music labels understand that the current laws don't help anybody but lawyers, while taking away profit from both videographers and musicians. For example, if I would have done the recital and the parents see their daughter dancing to a song, even if they don't like the song, chances are they would order the CD, or at least the song in digital form.

Even further, there should be a simple system like there is for restaurants and public venues for playing music, it would be as simple as paying 2% of the value charged for the video to be able to use the songs captured on video.

So if anybody has any ideas on how to organize something, and especially if anybody knows a lawyer that can help pro-bono, let's bring it on. Videographers deserve to make money, and musicians deserve to make money. This system only helps lawyers.

[Dave Blackhurst]

You've got it grasshopper...

Different attorneys, entirely different "opinions"... just as I said. I'd side with Atty #1, as his opinion aligns more with other opinions I've encountered in the "industry" (videography side anyway, NOT "movie industry")... but he'd be facing Atty #2, who might be backed by deep pockets and be friends with the Judge...

The current system of multiple licences for "similar" uses makes it decidedly "UN-simple" to "fix". We've got to wait for "the law" to catch up with digital technology, by which time we may be dealing with something completely different.

Remember as I said that if you read the actual copyright law, you'll find it typically uses the term "phonograph" when referring to copying... while I still have a "phonograph", I doubt it still even works, and I have little use for it anyway, when I can probably download digital copies of any old LP's for a couple bucks... While almost EVERYONE is familiar with, and uses, digital tech (most of which has the capability to RECORD in one form or another), the law generally feels like it's expecting "copies" to be on papyrus...

Technology has hurtled forward, the parents can probably get together, put a couple iPhones on tripods strategically located, mix it in Vegas studio, and have a pretty "pro" production... and since THEY are doing it for their own private use, guess what... no legal "issues"... the tech is there, most people will have it or have access to it, but it's "criminal" if one uses it to offer a "commercial" service to deleiver the exact same thing... ? And we wonder why the USA is rapildly losing ground in so many respects?!


There is a lack of common sense involved here, as well as practical considerations... while it's a different area of law, just ask yourself "is it ALWAYS illegal to go through a red light?" (really think about it...)... there's the LETTER of the law, and there is also the SPIRIT of the law, one of which you're virtually guaranteed to violate multiple times a day if you get out of bed... and the other, which allows one to actually go about one's business!

And on another note, keep in mind the recent case of the composer of the music for the "anti-piracy" advert that is in circualtion - he had to sue when he discovered that the limited distribution he had granted license for was actually being used worldwide on a far larger scale - IOW, even the "anti-pirating" commercial producers violated his copyrights... sigh.

[Steve House]

In talking about the way the system ought to be, you guys are forgetting one thing...if the music publishing and recording industry perceived that it was in their financial self-interest to change the law so as to make limited use licenses for events such as weddings and and recitals easy and inexpensive, it would happen as fast as it takes a good secretary to type up the memo. They obviously don't see it as benefiting their industry to do so. And since the music IS their property, not ours,, they can be as liberal or as stingy with permission for its use as they wish

[Sebastian Alvarez]

Originally Posted by Steve House

In talking about the way the system ought to be, you guys are forgetting one thing...if the music publishing and recording industry perceived that it was in their financial self-interest to change the law so as to make limited use licenses for events such as weddings and and recitals easy and inexpensive, it would happen as fast as it takes a good secretary to type up the memo.

Well, if they don't see the benefit to their industry, they are either stupid or they don't even dedicate a minute to think about it, because the benefits are obvious. If the music industry in the UK saw the potential and is getting 15 pounds per videographer per wedding and more in some cases just for the music they capture through the microphones, then how is that not possible here? They could charge even more, like 2% of whatever the videographer charge for the video. So $20 for a $1000 video, $40 for a $2000 and so on. And then they could charge $10 to allow the use of each copyrighted song in post production, which now they don't get any money from only because they don't allow it. People would pay to use probably 5 songs per wedding. Musicians could be getting a lot more money in royalties if the music industry would get rid of all the people with backwards mentality and bring new ones that see the market potential for a licensing system for videographers, whether it's weddings, dance recitals or school events.

And where's the WEVA in all this? Shouldn't they be fighting for this with the music labels? The labels would laugh at a letter from a wedding videographer, but sure as hell would pay more attention to a letter from an association that represents weddings and events videographers. I would gladly pay a membership with them if I knew they were fighting for this, but all I read is that some people mentioned it to them and they didn't care. Correct me if I'm wrong.

The point is, we're getting screwed, the musicians are getting screwed, only because of a few suits with backwards mentality. We have to do something about it.