Paul Tauger |
May 16th, 2003 04:44 PM |
Quote:
But theres no way to take the original background music out of the video without taking out whatever is being said at the time... If that is also a violation of copyright there is nothing most of us are going to be able to do about it.
|
The law varies from jurisdiction to jurisdiction, and is by no means clear. However, generally, where the incidental copying occurs because of what is essentially a reportorial activity (this comes up most often in news), and only sections of the piece are recorded, it is not deemed copyright infringement. In other words, it is likely that, if a wedding videographer tapes the bride's dance with her father, and the entire song isn't used, it would not violate the law. If, on the other hand, a wedding videographer records an entire song played by the band or DJ with his/her video camera, then uses it as a sound-track, doing insert edits of other scenes, that would incur liability.
Note this, though: I'm not anyone's lawyer here, and none of this is legal advice. Particularly with respect to copyright law in the context of incidental reproduction, there is certainly no bright-line rule. In fact, there are very few reported cases that deal with this at all.
Since no one wanted to go to Google and see what I've already written on this, I've copied my post below:
Quote:
. . . to the question, "Is it infringement if my video contains music played by the band at a wedding?"
Unfortunately, the answer isn't exactly definitive (and somebody owes me a beer! ;) ).
First, a disclaimer:
NONE OF YOU ARE MY CLIENTS. I AM NOT YOUR ATTORNEY. THIS IS NOT LEGAL ADVICE. I AM DISCUSSING AN ABSTRACT PRINCIPLE OF LAW THAT IS OF GENERAL INTEREST. NOTHING IN THIS POST IS A LEGAL OPINION. DON'T RELY ON ANYTHING
I'VE WRITTEN. CONSULT YOUR OWN ATTORNEY IF YOU HAVE A QUESTION ABOUT POTENTIAL LIABILITY.
Okay, with that said, (and please, read and heed!):
The particular legal doctrine at issue here is called "Incidental
Reproduction." Incidental reproduction occurs when, as the name implies, copyright-protected material is reproduced as an incident to another activity, for example, in a motion picture, an actor is shown reading a Time magazine or, as is of interest to everyone here, when a wedding videographer tapes the couple's "first dance" and, in doing so, records the music played
by the band or DJ.
When Congress codified the equitable doctrine of fair use, it gave some examples (which are not part of the statute, but are part of the legislative history, which is considered "persuasive" when construing the statute) when the fair use defense would apply. These examples included: "incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being recorded.' " 1975 Senate Report 61-62; 1976 House Report 65, U.S.Code Cong. & Admin.News 1976, p. 5678.
Unfortunately, there aren't a whole lot of decisions which deal with this subject, and they aren't consistent.
I've found two cases, Italian Book Corp. v. American Broadcasting Co., 458 F.Supp. 65 (S.D.N.Y. 1978) and US v. ASCAP, 1993 WL 187863 (S.D.N.Y. 1993), that come close to being on point. Italian Book involved a plaintiff songwriter who sued a television crew that videotaped a parade at which plaintiff's song was played. The Italian Book court held the parade videotape to fall within the "incidental and fortuitous" fair use exception. The ASCAP case which, apparently, dealt with royalty allocation and
collection by ASCAP, includes a reference to another unpublished decision in the same matter in which a magistrate judge held that fair uses, which included "ambient music incidentally picked up during news and sports broadcast" should trigger either a full-program ASCAP fee, and should not be included in ASCAP's incidental-fee category.
However, at least one court has rejected Italian Book, denying fair use when an entire song was broadcast, not as a news event, but as live coverage of a festival. See Schumann v. Albuquerque Corp., 664 F.Supp. 473, 477 (D.N.M. 1987).
Nimmer, a legal treatise on copyright which can be cited as persuasive authority in American courts, characterizes application of fair use doctrine in this context as "spotty." Also, bear in mind that Italian Book is a NY district court case, and isn't binding anywhere. ASCAP is also a New York district court case, but it is an unpublished decision, which renders it even less persuasive. Schumann is a New Mexico district court case and it, too, is not controlling authority anywhere.
So, where does that leave us?
Well, unfortunately, with very little guidance from the courts. Wedding videos are funny things -- on the one hand, they can be considered analogous to news, in that they report an actual event. On the other hand, the public interest in allowing greater lattitude to news organizations isn't present (or, at least, not to the same degree) for wedding videos. It's simply impossible to predict which way any given court might go -- the focus might
be on the commercial, non-news aspect of a wedding video, resulting in infringement liability, or it might find the fact of limited distribution and impact on the commercial market for the underlying work does, in fact, constitute fair use.
Remember that fair use is an _equitable_ doctrine which is a _defense_ to infringement. The "equitable" part means that it is a fact-specific doctrine; different courts may come to different conclusions based on seemingly minor factual variations. The "defense" part means, you won't know whether you're liable or not until you're actually sued and a court rules.
If I were advising a client, I'd probably recommend the following:
1. Get an express, i.e. written, non-infringement opinion from an attorney. A proper non-infringement opinion from competent counsel is, for all intents and purposes, prima facie evidence that infringement was _non-intentional_. This is important, both in terms of limiting liability if you are sued, and for number 2, below.
2. Get a policy of general liability business insurance which includes an "advertising injury" provision that is sufficiently broad as to provide coverage for an infringement action predicated upon inadvertent inclusion of copyright-protected material in the video. Note, though, that whether or not a given policy will protect someone in such instance is, in itself, a difficult question to answer, and the answer should be provided by an attorney (or, better still, by the insurance agent, _in writing_). Number
1, above, is important because these insurance policies only protect against _negligent_ infringements; intentional infringement are outside the scope of coverage.
3. It would seem from the case law that, the less use made of the protected original, the more likely it is to be found fair use incidental reproduction. Therefore, it's probably a good idea to avoid using entire songs. I can think of other ramifications as well. For example, if you do an L- or J-cut, the "incidental music" would be functioning more as a soundtrack than as an incidently and fortuitously recorded background to a specific event, so I'd limit use of "incidental" music to the actual event it accompanies.
I can't (and won't) tell anyone in this group what they should do. It is important to realize that this particular factual pattern, i.e. incidental reproduction of music in a wedding video, is far from settled at law; I'm not sure anyone can give a dispositive answer at this point. My personal inclination is that incidental music in a wedding video probably should be considered a "fair use." However, I don't sit on any appellate courts, so my personal inclination doesn't count for much. That is, however, the defense that I would raise if one of my clients were sued in this context.
Finally, remember that what I've written here is the product of about 10 minutes of very hasty research. I would NEVER counsel a client based on such a skimpy review of the law. This is a complex question that requires more than just a passing review before an informed opinion can be provided.
Now, who's going to buy me that beer? ;)
|
|