Copyrighted Music Playing At Event?

[Chris Hocking]

I have been filming a circus in Taiwan.

A lot of the acts performer to music such as AC/DCs "Stiff Upper Lip" and Bond's "Explosive".

After reading through a pile of copyright information on the Internet, I've come to the conclusion that I need permission to use that music in my film even though I just filmed an event. Correct?

Trouble is, some of the acts have a live band playing what I can only presume is unoriginal music, and also some latin music which no-one seems to know the artist name of. What to do!

If I record a live band, and have the band's permission to film them - do I require copyright clearance if they are playing something composed by someone else? I'm under the impression that you do.

The footage is for a non-commercial, assessment purposes only student film, however the university demands copyright clearance on all items for obvious reasons.

If I could get permission from the authors to use the audio for non-commercial use till the end of the year that would be ideal. I'm in the process of contacting APRA in Australia.

I can't "drop" the music for something else (ie. something that doesn't require clearance) - I just need to find a way to get clearance.

Any ideas?

[Cody Lucido]

Copyright is often confusing. I would also like to hear a response on this topic.

I have read that it is all right to use footage with copyrighted music in some situations. The example was something like this:

OK - Filming a guy while he is driving around in his car with the radio on. The radio plays copyrighted material. No cuts are made.

NOT OK - Filming a guy while he is driving around in his car with the radio on. The radio plays copyrighted material. You cut up the footage with different takes, cut aways, etc. and you lay that song over the scene.

[Steve House]

Originally Posted by Chris Hocking

I have been filming a circus in Taiwan.

A lot of the acts performer to music such as AC/DCs "Stiff Upper Lip" and Bond's "Explosive".

After reading through a pile of copyright information on the Internet, I've come to the conclusion that I need permission to use that music in my film even though I just filmed an event. Correct?

Trouble is, some of the acts have a live band playing what I can only presume is unoriginal music, and also some latin music which no-one seems to know the artist name of. What to do!

If I record a live band, and have the band's permission to film them - do I require copyright clearance if they are playing something composed by someone else? I'm under the impression that you do.

The footage is for a non-commercial, assessment purposes only student film, however the university demands copyright clearance on all items for obvious reasons.

If I could get permission from the authors to use the audio for non-commercial use till the end of the year that would be ideal. I'm in the process of contacting APRA in Australia.

I can't "drop" the music for something else (ie. something that doesn't require clearance) - I just need to find a way to get clearance.

Any ideas?

IANAL ... AFAIK Chris, your impressions are correct. Performance rights and sync/mechanical rights are two different things. When the music is used by the circus acts or performed by a band at a concert or a club or played by a DJ at an event or put on a jukebox in a bar or broadcast on the radio or TV, performance rights are what are in play and clearance is through rights clearance services such as ASCAP in the US. But when it's in the soundtrack of a video or film alongside images, whether placed there purposefully in post by the filmaker or captured from the environment along with the images while filming "cinema verite", syncronization and mechanical rights come into play. And distributing copies of the video brings reproduction rights into play. You have to obtain all of those clearances direct from the copyright owner(s). AFAIK the only exceptions might be when the music is so much a part of the general background environmental noise that it's clearly accidental that it's there at all, and even that would be dependent on the leniency of the court if the copyright holder made an issue of it. Filming the guy listening to music on his car radio as he drove would require clearance of the music. Filming an interview on the street at a parade and hearing barely intelligible snatches of music in the distant background from a band three blocks away would probably slide through. And sorry Cody, as far as I know your theory about there being a distinction between running a clip intact versus cutting and laying in the music afterwards won't hold up. By that theory, replacing picture with cutaways while letting the original sound run uncut would work but AFAIK it won't.

If you can't get clearance, you have no choice but to replace the sound or drop the scene, especially if the resulting video is to be handed off to someone such as your university or a film festival where proving in writing that you have clearance is a condition of acceptance. Except in those very few explicitly defined circumstances where "fair use" applies, there just are no other options if you are to remain legal.

You're not alone in your difficulty in tracknig down who you need to get clearance from. Even the major studios and broadcast networks sometimes run into it - there are a number of classic TV series from the 60's-80's that would be great to release on DVD but the studios who own the shows don't have and can't get clearance on the music to use it with the show in any format except broadcast so while they can be syndicated in re-runs they can't be released on DVD. And in some cases, even the clearances they had for the original show runs expired after a certain time period for re-runs and so they can't even be syndicated for broadcast any more. And the stories are legend of classic documentaries that included period music that can't be shown any more because no one knows who owns the rights to the music and so they can't get the necessary clearances - American PBS's vaults are full of 'em.

[Peter Wiley]

On fair use and music or images "in the background" see:

http://www.centerforsocialmedia.org/...nds_and_images

and:

http://www.centerforsocialmedia.org/keywords/fair-use/

Of course this applies to U.S. law.

[Kevin Shaw]

Sounds like Steve is saying you can't reproduce anything which is copyrighted without permission, while the examples Peter referenced suggest otherwise. Is there any definitive legal decision on this for videotaping live events?

[Steve House]

Originally Posted by Kevin Shaw

Sounds like Steve is saying you can't reproduce anything which is copyrighted without permission, while the examples Peter referenced suggest otherwise. Is there any definitive legal decision on this for videotaping live events?

I'm not saying you can never do it, just almost never. AFAIK, if you are shooting breaking news, for example, and copyrighted music happens to end up in the background sound, you're still good to go. The problem is that while the principle of Fair Use exists, with a very few exceptions it's not spelled out in black and white in the law exactly where it does or doesn't apply. It's up to a court to decide in every single case on its unique merits and that means in the event the copyright owner wants to make an issue of it you'll have to spend thousands of dollars in legal fees even if you eventually win.

The site those video links Peter posted has some other excellent material on the issue, BTW. See also their page at http://www.centerforsocialmedia.org/resources/fair_use/

The problem with following the Statement of Fair Use they have posted is that it is a statement of reccomended practices, a statement if you will of what the law ought to be rather than a statement of what it IS and calling on documentarians to go ahead and use material according to those guidelines and be ready to defend themselves in court with the suggested arguments. But following their guidelines won't guarantee you'll be able to stay out of court or win if you have to go there.

[Chris Hocking]

Thanks EVERYONE for your replies!

According to the Australian Copyright Council:

Research or study

There is no general provision that allows people to copy for personal or private use. However, the Copyright Act does contain provisions which students may sometimes be able to rely on, including when they want to use music and sound recordings in films and videos they make as part of a course of study. In particular, a student may be able to deal with copyright material for research or study, provided the use is fair. In one case, the Court considered the meaning of the words "research" and "study" and held that they have the meanings given in the Macquarie Dictionary:

research
diligent and systematic enquiry or investigation into a subject in order to discover facts or principles.

study
1. application of the mind to the acquisition of knowledge, as by reading, investigation or reflection.
2. the cultivation of a particular branch of learning, science, or art: The study of law
3. a particular course of effort to acquire knowledge: to pursue special medical studies ...
5. a thorough examination and analysis of a particular subject ...

An example of fair dealing for research or study may be using music in a film which is to be submitted for a school or university project, but which you do not intend to show outside the classroom or distribute further. However, a person making a home video or movie of a wedding or school concert could not rely on this exception.

According to APRA/AMCOS (which again obviously only affects Australian filmmakers):

Permission to use music in audiovisual media is obtained from the owners of the copyrights on the music involved (there is no central organisation such as APRA/AMCOS administering audiovisual licensing in general). There are two kinds of copyright which may be involved:

- the copyright on the musical composition. This copyright is usually administered by a publishing company, on behalf of the writer/s of the music.

- the copyright on the sound recording (if an existing sound recording is being used). This copyright is usually administered by the record company which produced the recording.

There will usually be Australian contacts, even when a composition or recording is originally from elsewhere.

As you may know, there can be exceptions to this rule if a production is made as part of a course of study. No permission is required to include music in a production made for assessment purposes (i.e. to be viewed and evaluated by the student's teacher/s). However, if a production made for assessment is also to be used in any other way (particularly any way involving screening before an audience) permission is required as above.

So basically in my case, as it's for assessment purposes only, I do not technically need permission from the authors. HOWEVER, if I ever decide to publically screen the footage, I WILL need written authorisation.

Chris!

[Todd Giglio]

I agree, too, that it can be difficult finding out what needs clearance and what doesn't. I recently received a Syncronization License to use the song "Little Drummer Boy" for a film that I'm in pre-production on. The song is going to be played by the two main characters acoustically. I did a lot of research (especially after being told the song was 'in public domain', but learned that there was still copyright protection.

Fortunately after doing a lot of 'googling', I found who owned the publishing rights and contacted them. Everything worked out great.

I'm still checking out everything to see what needs clearance and what doesn't (for example: a scene is shot in a bar at a pool table. There is a large "Coors Light" light over the table. I've contacted Coors to see if I can use it, and received no answer. I'm not sure if this is fair use, but I'm still trying to find out).


We all have it difficult as film makers since we don't (can't afford) have a personal Intellectual Properties Attorney at our beck and call. But we don't have a choice if we hope to get distributed.

As I like to always say "Lights.... Camera.... what a minute, get that beer can out of frame."

Best to all.

Todd