Thank you Paul for that very complete post. If I could close the thread I would, so it doesn't go down the "here is how things should be" road (which is an endlessly speculative road).

Suffice to say, use this experience of JJ's as a good warning.

It kinda sucks to be a bad example, but I really hope he would just send me an invoice for usage of his music and get it done.
I don't want any court appearances in NY.
Thank you for your detailed advice, though, Paul.
I have a wedding to shoot tomorrow and I am not feeling it..
I couldn't do any editing today, no nothing....
It simply sucks to get into something like this.
If I didn't follow him on Tweeter, I could have avoided this...at least for now.
Again, just like the title says, stupid of me...

jj

I do EXACTLY that ALL THE TIME. I even have TWO points in my FAQ on my website addressing the fact that I will not use non-Royalty Free music in any video I produce UNLESS the client sources the rights to use and provides me with written proof PRIOR to placing said music track in my production. Only ONCE has a client gone ahead.

I don't do wedding videos as a direct result of this moral and legal position that I am VERY comfortable with. REMEMBER that every corporate client wants to use Tina Turner's "Simply the Best" for advertising and years of service acknowledgments.

I understand that it is difficult (if not impossible) to convince a bride that you CANNOT legally use her favourite songs in her video (because face it, it's the bride's, not the groom's...) BUT you ARE BREAKING THE LAW in many countries if you do this.

I'm sure if you told a couple you couldn't steal a Ferrari so that they could arrive in style at their wedding, they'd get it. Every videographer that uses copywritten music illegally is helping to perpetuate the problems that you are facing.

AGAIN, for those that CAN legally buy rights en masse as discussed (Australia) POWER TO YOU.

The rest of us make choices: I CHOOSE to use Royalty Free and I face the realities to my business that perhaps I won't get that next corporate piece where someone who hasn't discussed the issue with Legal wants to use "Born in the USA" for their next marketing piece. I ALSO won't have to wait for the lawyers to show up...

Shaun - can you do one thing for the board.

On Monday phone the RIAA in New York. Tell them you want to license music for a wedding video. I can't remember the reply verbatim - but two points were made when I made a similar call a couple years back.

1. You don't need a license
2. Many top attorneys and judges, including Supreme Court Justices have commissioned wedding videos.

If you could reserve judgment until you've made the call that would be great. Once you get an answer do let us know if it's changed from the ones that have given me and many others over the years.

For those who don't want to make the call themselves but still require incontrovertible advice - why not check out what NPR's Intellectual Property attorneys and NY Times ethicist think of it: "Could a wedding dance turn into a copyright infringement if it's videotaped?" -

Is Videotaping a Wedding Dance Illegal? : NPR

Including copyright music in a wedding video is neither illegal or immoral. If you have a problem with that view - why not phone NPR? I'm sure they would be really interested in your viewpoint, although in the interview they are pretty scathing about people who hand out bogus legal info on the net.

On the other hand setting a montage/highlight reel to a piece original music without crediting the author is illegal. Hoping to secure some commercial advantage from that is immoral.

Not to worry; the end is growing near... I fully agree with you that Paul's post would make an excellent conclusion to this thread.

J.J., I'm sorry about your situation and I wish you the best. However, this could have been more easily avoided if you had not uploaded that video clip to the web. For anyone out there who is using music without permission of the copyright holder, this is a good example of why it's never a good idea to put that material on the internet.

Close, but no cigar. What you hear in that piece is one person talking about capturing background music while recording an event. He was not referring to syncing a montage to music.

Chris

Go back read the final paragraph of my post.

Just send a box of Romeo Y Julieta and you can skip the grovelling apology

:)

JJ,
My hope for you is that the musician is just trying to scare the living crap out of you to teach you and I (all of us) a lesson about not using copyrighted music. Sure he's mad, but my hope is that he won't actually sue his fan.

Cross your fingers.....

Dang - all I have is Hoya De Monterrey Excalibur, and you're not getting those. I'll go buy a pack of Swisher Sweets for you! :)

Paul,

I stand corrected. I feel for JJ in this case and have read various cases, like the 8 year old (or so) girl that got sued a few years back. I don't know that I agree with all your points, but if you're a lawyer that deals with this you no doubt know what you're talking about.

Your reply and post was really informative and brought me up to date regarding this issue. And yes, you are right..this has nothing to do with the majority of those of us that think lawyers ruined this country.. that was indeed an incorrect statement.. the majority seems to fall on the ridiculous lawsuits over injuries and such.. so I apologize if I offended.

So it sounds like most of you that understand this do ok even tho you have to severely limit the selection of music you can use in a video. I am really curious tho.. when you recording sections of a wedding that have DJ music in it..I am guessing you have to edit out the sound completely (unless of course you had permission to play the music..which I would assume is almost never going to happen).

How do ya'll present your music list that you can use in a video then? For that matter, when you're making the videos.. do you choose the music for it, or do you let (or offer) the bride/groom the option then present a list and explain the copyright issues (not nearly as much as Paul did of course) and tell them you'll look up their choices to see if they can be used via one of the royalty free or yearly license sites?

Why would I do that? Number one I live in Canada and any response the RIAA gave me would not represent my situation and number two, I have no interest in producing wedding videos. Instead, I will defer to what knowledgeable professionals like Paul and MY lawyer have said.

Canada DOES have an association that regulates and allows you to play commercial music in wedding films! Contact the CMRRA @ www.cmrra.ca for more information. There's a PDF which clearly outlines the fees and then you're good to go! Not sure what's going on in the US though.

And when you call NPR or RIAA, be sure to ask them if they'll indemnify you if you are sued. And be sure and get it writing.

And what was that you said about handing out bogus legal info on the net? Does that include non-lawyers?

For what it's worth, my personal opinion, NOT my legal advice, is that using the bride's legally-acquired CD as a soundtrack for a wedding video SHOULD be fair use. I say "should" because I think standard fair use analysis, i.e. it's transformative, doesn't hurt the market for the original, etc., could apply. However, here is why I think it won't be held fair use, at least today:

Fair use is an equitable doctrine, meaning that it is committed to the discretion of the judge. Copyright cases can only be tried in federal court and in federal court all the judges are appointed by the president. Currently, something on the order of 80% of the federal bench was appointed by Republican presidents, and not just Republican presidents, but, specifically, Reagan, Bush senior and Bush junior. As a result, we have a very conservative, pro-business federal judiciary. Federal appellate justices are also appointed and drawn from the ranks of the federal district courts. As I'm sure everyone is aware, the Supreme Court is staffed by Presidential appointees. The present Supreme Court, which many regard as "liberal," is, in reality, the most conservative court since Herbert Hoover. Remember, this is the Supreme Court that held that government exercise of eminent domain so that the property so condemned could be turned over to a private developer did NOT violate the 5th Amendment and that the "limited time" of the monopoly grant for copyright in the Constitution could be 100 years+. This is not a slam against Republicans or conservatives -- it is just a fact of federal litigation that all of us who practice in federal court are aware of.

For this reason, I find it highly unlikely that fair use would be applied in such a way as to disadvantage copyright owners who, generally, are large corporate entities and NOT authors, musicians or, for that matter, film makers and, in fact, that has been the apparent trend of the relatively few recent fair use cases. One of the underlying principles of fair use doctrine is that ameliorates the tension between the First Amendment and the Article I, Section 8 grant of an exclusive monopoly in copyright. Unfortunately, wedding videography has virtually no claim to core value speech -- it is commercial and, at least with respect to using protected music, it is completely unrelated to the free commerce of ideas.

Nonetheless, I have previously indicated that, to the extent I am able (and this is a big qualifier -- it depends on my two employers consenting), I would try to make myself available to defend, on a pro bono basis, any wedding videographer who is sued for using the bride's favorite CD as a sound track. I can't make promises but I really am with all of you -- it SHOULD be legal. However, I don't make the law, I only explain it and, right now, the law is pretty clear.

props to you paul.

That's it. I'm moving to LA. d;-)

This thread reminded me of an interview we were showed in a uni course where a high profile music producer was being questioned on how the hip-hip industry was dealing with copyright infrignement through sampling. The interviewer played a very short snippet of a song - one syllable of one word, or about 1/4 of a second - and asked him how much that sound was worth and what it would cost for each sampling of that sound in a new work.

The interviewee replied very seriously, without barely even blinking, that it was worth about $7.

Music copywright may seem unfair but it is the very same laws that protect our video's and films as well... so i guess it's a double edged sword.

I am lucky enough to be in Australia where we have the licensing fee - I just found out about it last week during a job interview with a wedding production company. I've never done wedding's before and one of the main concerns I raised with them was music copyright - I was very pleased to hear the licensing fee took care of this!

Does this Australian licensing fee cover only Australian music, or does it provide international coverage as well? If it does cover American music, does the fee go through BMI and ASCAP? Just curious.

I was wondering the same thing. Thanks Paul for your support. Appreciated much.

Paul -
Thanks for weighing in, I appreciate your "eminent domain" reference, I consider myself conservative and that particular decision offended me greatly. You are correct in your analysis that individual rights are being outweighed more often than not at the expense of "corporate" or big business "rights". Personally I find this repugnant to the rights of the individual to "life, liberty, and the pursuit of happiness". This is after all America, and "we the people" still have a voice.

I think a short analysis of the typical "wedding" situations would be helpful.

Situation #1, you're "rolling" and a song is being played. (this is the NPR example). You have no control over what's being played, and it's "incidental" - your intent is not to capture a recording of the song and reproduce it for profit, your intent is to capture the moment, whatever music is being played. Videotaping is not illegal, and you're not trying to profit from or co-opt the original work - any profit is derived from memorializing the event, not copying someone else's IP. The "end user"/viewer is not playing the video back to listen to the song, but rather to watch the video of the event.

Sitation #2, as Paul has graciously offered to defend, you utilize a track from a legally purchased CD (or online, since this is more common now) as a "soundtrack" for the strictly limited use of a few copies of the wedding for the bride/family. Search "carterphone" on DVi and the web for a good example of how this sort of use of technology is not likely to be illegal - I've argued before that you could play the CD while editing, remove the soundtrack, then tell the bride to play the edited video along with the CD and achieve the exact same result... the fact that technology allows you to put both tracks together for personal uses shouldn't create an illegal act... This gets touchier because the song at least in theory has a special meaning, but the end user has a license to play that song back in one medium, by extension that license "should" provide for it being played back in a "shifted" medium. I have CD's, I have the right to rip them to MP3 and play them back via some other device... the medium itself is just a "container" for the IP.

Situation #3, DANGER WILL ROBINSON!!! This is a "logical extension" of situation #2 - you or the bride are proud of the final "wedding video" (it's really more of a highlight set to music, and this is where you run into problems as you ARE using someone else's IP for a derivative work and are in theory crossing into "sync rights" - something which may become outdated/obsolete over time due to technological progress IMO).

Since you or the bride are so proud of it... "someone" posts to UToob or other "open" video sharing site, it goes viral for some odd reason and now you've exposed the "borrowed" IP to a huge audience, let's say the IP holder isn't too happy about your video or thinks it reduces the value of his "work", or most likely you have "gained" from his work without his permission to use it and "distribute" it. You are now in the middle of a poo-storm extrordinaire, and likely at great risk even if you "won", and I don't think even a "liberal" reading of ANY copy-rights ANYWHERE will provide you protection, nor should it, IMO. Until there is a licensing system devised to allow for online use, it's really just painting a gigantic red circle on your posterior to do this!!


It's this third scenario that JJ tripped over, and given the reach and scope of the web, it's a HUGE potential problem area - ripe for litigation, and liability. Hopefully an agreement to "cease and desist"/mea culpa maxima can be worked out, that's the first thing I'd seek. If not, maybe some reasonable compensation can be worked out, but since the IP holder is already "vocal" about how much he spends on his attorney, I wouldn't hold my breath. I've worked with reasonable artists, and UNreasonable artists, same goes for attorneys, we can all hope for JJ's sake he finds everyone reasonable...



Hopefully that wasn't overly long, and perhaps can serve as a foundation for the "copyright" primer Chris, Paul and a number of the rest of us have discussed? I think it covers the scenarios wedding/event shooters are likely to encounter, if not, please throw out any others.

I don't want to turn this into a political thread, so I'll just say that I disagree with nothing you've written above.

Me. too. ;)

I'll provide the legal answer, only. This is an area called "incidental reproduction." There is very, very little law on this -- I've only found a couple of published decisions. Looking at the situation literally, you are making an unauthorized copy of the music that is played -- it's therefore copyright infringement. The question is, does fair use apply? The answer is, possibly, unless you want me to provide a binding legal opinion, in which case the answer is, "no.' ;)

There is no bright line rule for incidental reproduction. However, the decisions seem to suggest the following:

1. If only a portion of the entire musical number is used, it is more likely than less likely to be considered fair use.
2. If the purpose of the incidental reproduction is reportorial, as opposed to commercial, it is more likely than less likely to be considered fair use.

So what does this mean to a wedding videographer? When you're shooting the couple's first dance, don't use the entire song and definitely don't use it as a sound track, e.g. using it as underscore for other sections of the video. I think a good argument can be made that wedding videos are reportorial -- after all, their function is to document the wedding. However, this is a very, very gray area at the moment. It's been a couple of years since I've looked at it but my recollection is that there were only a couple of district court, i.e. non-precedential, decisions that addressed incidental reproduction and none involved wedding or event videography.

Here's the problem with your analysis. When the bride plays the CD along with the video, no copy has been created, so no reserved right has been infringed. Though, in practical terms, it should not make a difference whether the music is on a CD or transfered to an audio track on the video, the legal difference is profound: one is not an unauthorized copy, the other is. As I've said, I really think this should come within fair use, but I'm not prepared to bet the farm on saying that it would.

Also, note that using the CD for a sound track MAY be fair use. Putting up a trailer that uses it on a website to sell the videographer's services almost certainly would not.

Yep -- I agree with this.

Speaking practically, which is something lawyers rarely do, JJ's problem was getting caught. As I noted, using unlicensed music in this way is not fair use and, what made it even worse, notifying the copyright owner via twitter that you're infringing is . . . well . . . not a good idea.

The reason animals herd is for safety -- predators pick off the weakest members at the fringes. There are an awful lot of wedding videographers using commercial CDs and the odds are that, eventually, someone on the fringes of the herd is going to get picked off.

For now, my legal advice is this: use royalty-free music or obtain a license to use the bride's favorite CD. Also, incorporate yourself as a limited liability corporation, observe all of the corporate formalities, obtain CGL, preferably with an intellectual property rider, and don't use your house as collateral for an equipment loan.

Just a note on the LLC thing.. for those of us that run small businesses..I think you can form S-Corp.. its easier, cheaper and provides the same protections as LLC for small businesses.. I think? Paul I am guessing could answer this best.

So as a conclusion to my thread :-)
Here is what I got from the musician's assistant this morning (while I was shooting a wedding):
"Dear JJ:

Using someone's copyrighted work to promote your own work is a violation of copyright law. Synchronization and master licenses are required. It's similar to someone using your creative product for their own self-promotion and financial gain without credit or compensation being given to you.

We are happy to license compositions for projects such as yours, but on a case-by-case basis. So we need to clean up the current situation first. Here's what xxxx recommended we do:

In lieu of a license fee, we'd like you to make a donation to a charity that we do a lot of work with, yyyzzzzyyyzzz (www.yyyzzzyyyyzzz.org). A donation of $150 ($50 per composition) would be appropriate. It can be made through their website via PayPal or credit card. You make good for the unauthorized use of the compositions below (1492, Magnetic Angels, Howard Sees the Sky) and it's a tax write-off for you or your company because they are a 501(c)3 non-profit organization. Just mark your donation "For urgent rescues/xxxxxxx License."

When you receive your receipt, or the thank-you note from the org's director, forward that along to us and we'll issue a license retroactively which will allow you to keep those trailers up on your website.

Best regards,

Zach G for xxxxxxxx"

I am very happy how it turned out... very.. very happy..
Thank you everyone for the support and advice, especially, Paul Tauger with very detailed infos, and I am not going to make same mistake ever again...(sigh)...
Have a great weekend, everyone..

Best,

JJ

WOWWWW...... GOOD ON YA JJ!!!

seriously its like watching a thriller movie with a happy ending.

we can now all proceed our way out of the theatre with warm feelings that there are still very very nice cool people in the world.

The charity bit really touched my heart. The fact that this guy doesn't want a penny from JJ but instead he still want JJ to contribute something for his license.. is magic..

Wooohooooooo!!!

Santo

Thank you, Susanto
I was extremely relieved when my wife called me while I was shooting a wedding this morning and gave me the news.
Not only I am going to buy the license from him but also will give him credit in the beginning (briefly) for the trailers, cause he does make beautiful music.
Again... thank you all and Susanto, your works are very impressive and your creativity is extraordinary.
Have good night, ya'll.

jj

Full marks to the "injured party" for playing this INCREDIBLY fairly!

J.J.

Even-though I didn't post and get caught up in the "great debate" earlier. I've been following this thread for the very beginning. I'm happy to hear that everything turned out well for you.

Steve

That's a terrific outcome! I'll bet you'll sleep better tonight. :)

That's awesome news, J.J., and it really shows that there's hope for a revised system of some sort. Very amiable of them to offer you this resolution!

JJ -
Sounds like a good reasonable artist, glad to hear the result, lessons learned, and nice to know there are still some good decent people out there.


Paul -
I agree this isn't the place for politics, better a place for common sense!

On situation #1, I concur with your analysis, the lack of precedent is always worrisome, but I think your qualifiers are good (use portions not the whole, and regard the work as a "private documentary"), I suspect that one major photo studio moving into the video area has reached the same conclusions, based upon their position I've seen.

Situation #2, I'm using the analogy of the Carterphone case that Chris posted a while back elsewhere on the forum. The logical combination of the technologies involved (i.e. media shifting from a legitimately purchased CD/MP3 to the audio track of a DVD) shouldn't result in infringement.

While you are making a "copy", you can't as a practical matter play the original simultaneously with the copy, and you have the right to play the 1's and 0's of the original, arguably regardless of the "container" (media) - it's like if I copy a CD to my MP3 player - I've made a copy for my use and enjoyment, and I have the right to media shift that "copy" to a media most convenient and condusive to my personal enjoyment.

The rapid changes in digital media are stretching the boundaries - thus my comment on the probable obsolecense of "sync rights" as a concept. "Multimedia" inherently starts to "mix up" which 1's and 0's are which. "Art" and "business" are at a messy intersection in the "digital revolution". The fact that one can do things on your destop that would have taken a multimillion $$$ studio even a few short years ago is cool, but it opens up a big can of worms.


And of course openly thumbing your nose at the requirements of being a good citizen, well, just not a good plan. And good advice about protecting yourself even if you "keep your nose clean"!! One run-in with unethical attorneys can ruin quite a few days, as I've personally experienced (and unfortunately that continues...).

I think I hear a collective sigh of relief from people around the world who've been following this thread.

it was more like a horror movie than a thriller - I'm just glad it's over and I'm out of the theatre and I was only watching!

JJ that is great news. What's even better is you can even post the videos on Facebook coz you have the license to do so.

Thanks Bruce Patterson for the link. I'll contact them about licensing fees this Monday.

Dave, the only issue I see with this analogy is that is would require that the end user of the DVD retains it for themselves and DOESN'T make 10 copies for the relatives. To continue your analogy (which is a GOOD one IMHO), it would be just as illegal to send copies of the DVD to Aunt Ruth and her brood as it would be to purchase music CDs, burn copies and give them away as door prizes at your next social event - you've only bought the rights for your own personal copy (or copies, if you've chosen to archive the media OR encode for your MP3 player).

Shaun -
Your example is analogous to situation #3 -"someone" decides to copy/distribute/put online, and yes it is a risk. Technology once again opens doors to potential infringement, and it becomes incumbent on the owner/licensee to act appropriately.

Ever since it became possible to economically make a "copy" (tape, CD, Xerox, VCR, camera), the potential for "illegal" copies became a reality. BUT the purpose and capabilities of such devices (and the legal precedent) also allows for LEGAL uses. To borrow an analogy, "DVD burners don't infringe, people do..."

The cat's out of the bag as it were, it's possible to make copies and media shift, that's not going to change anytime soon. That's why I think we all struggle with what is legal, moral and ethical when something is POSSIBLE (and quite easy), but unclear as to what "the right thing" is. Common sense says once the 1's and 0's are purchased, personal use is allowed, including media shifting and copies. BUT...

That DOESN'T include copies for all your friends and relatives (though LENDING out your copy for them to listen to while you aren't isn't illegal... so there's some grey area here), or public posting, as that deprives the IP holder of compensation for the multiple uses. On the flip side, if you don't "share" a cool new tune, picture, video or whatever with your friends, the artists loses the benefit of "word of mouth", which inhibits THEIR ultimate success.

Much like software licenses which acknowledge that you may use the software on multiple machines within reason, there needs to be a defining standard allowing for "reasonable" use. I don't run a bunch of copies of "Word" simultaneously, but as my license allows, I have several installations for convenience. I can create documents for other people with that software too, even if they don't own "Word". And I don't have to pay every time I "use" the program... or pay on a sliding scale depending on whether I'm writing a note to myself or a book I intend to publish and sell a bazillion copies of. I've included those analogies to address the usual responses when "Copyright" comes up here. The analogy isn't perfect, obviously... but when you license something that inherently has multiple potential end uses (in the case of a music track, the buyer can listen at home, in the car, on an MP3 player, on a CD, or for the sake of argument on a DVD of their personal event), you need to acknowledge that those uses are foreseeable and reasonable. IMO the current "rights" system has a fundamental weakness in that it comes from a "phonographic reproduction" era and hasn't kept pace with the digital revolution.


Put on the IP holder shoes:
If you charge for DVD's, you most likely don't want a client purchasing one and making copies. I think a recent thread was mixed on this, but I personally don't want a disc out there that I didn't print (no "sharpie" copies please, except for the ones I clearly marked "demo" <wink>), and test. QC and all that. I'm not going to sue a client if they make a copy, but I'd rather make however many discs they need and keep an archival copy if they ever need more.

I think it probably would be a good idea to explain to the client that if they make copies or post online without authorization they are infringing (your work product as well as any media tracks).


AND... I think we may have stumbled across...

Situation #4, thanks to "web 2.0" - that would be if "someone" posts a "private" video (password protected, or only available to "authorized" "friends") . You've definitely opened the door to multiple viewers/users, yet you've restricted it to people who might watch it in your home, but due to distance or whatever would prefer to view on the web... it's "private" viewing, but if they can download the file and save a copy, you created a situation where infringement was easy. I think this opens the debate to the difference between "sharing", and allowing a copy to be made? And a slippery slope back to Situation #3, if it's "shared", but no copy can be made...

Oh the joys of the digital revolution...

I have a theoretical situation for Dave... You shoot the wedding and make 10 DVD's. What if you purchased the song 10 times (one copy for each DVD), and upon handing over the DVD's, destroy or delete the song files? With $.99 downloads from a variety of sources, it's not exactly cost prohibitive. Since you purchased 10 copies of the song, and there are only 10 copies in existence... would this scenario run afoul of copyright law?

Yes. that is still 100% illegal. Potentially more mentally justifiable, but still 100% illegal. UNLESS you purchased the song from a source that gave you synch and duplication rights with each copy you purchased.

Lets try and get this pounded into the collective heads of videographers in teh USA (all other nations can ignore this post as other rules apply)........

Purchasing a song is fine and dandy, but if you didn't purchase additional rights, all you can do is play the song to yourself in your own home or on your iPod (etc).

That does not involve the ability to do ANYTHING else with the song.

That is the state of copyright law as it exists today.

Your suggestion is mental gymnastics to get around the guilt of breaking the law. Many of us do exactly as you mentioned, but all are 100% illegal.

No, it is not mental gymnastics... it is a legitimate question. If I was trying to "get around the guilt of breaking the law", I wouldn't have asked and just started doing it. Since this entire thread has been predicated on someone buying *one* copy and making multiple copies of the original and then using it on the web for public display, I was curious if buying a copy for every DVD and then deleting the originals once the DVD's were finished... thereby maintaining the same amount of copies in existence as the amount purchased... was staying within the bounds of the law.

It seems to me that most of these license you can buy were set up for large scale distribution. For a small scale (10 copies) distribution for private use, I would think that the license holder would make more money per copy that way. BUT, I didn't know if it was illegal or not. I am not a lawyer, let alone a copyright lawyer. Dave apparently is, so I asked him since he would know. That's not trying to play mental gymnastics, but trying to get clarification so as not to run afoul of the law or screw over the license holder.

Actually Paul's the lawyer, I just spend more time than I'd like doing legal analysis... I'm a layperson, but I've got a pretty good understanding of how law "works" or at least how it should... truth be known, it doesn't all too many times... but that's the subject of a website I'll be launching soon. Law and sausages...

To clarify, I'm not an attorney, and I don't play one on TV or the internet... Even the attorneys who pop in won't give you any legal advice, particularly in an area this problematic. We can discuss these things civilly, but don't rely on it as anything other than intelligent, thought provoking discussion of a question.

I have done more than a fair amount of case law and statutory research, and as Paul notes, there just isn't a clear answer - I don't pretend there is (law is often fluid, and technological or societal change can make legal "illegal", and vice versa). We can do things with technology that were not conceivable or economical not too long ago - and that creates potential scenarios that will have to be resolved over time - I don't believe they have been adequately addressed as of yet.

Review my post about the 3 (or 4?) scenarios. I believe it's reasonably close to the "state of the law", keep in mind this area of law is not well defined, as the technologies simply haven't been around long enough for there to be a lot of precedent (read Pauls comments VERY carefully!)

I'm fairly sure "incidental" capture, with Paul's caveats is defensable, and I am aware of one studio moving into adding video that seems to concurr, and is willing to put it in their terms when hiring subcontractors. Then again, they may be whistling in the dark.

I believe that media shifting is a defensable concept and fairly soundly based in precedent, I believe Paul concurrs. BUT, until a case comes up that fits this VERY limited fact set, it's a theory. It relies to some extent on "sync rights" as currently defined not applying to a private, personal end use of the media in the same way as it would for a major studio using a song as part of a soundtrack for a major studio, wide distribution release. Would it hold in Court? No way of knowing, but the cost of finding out could be rather high.

Your approach of buying as many copies as required shows a clear intent to compensate the IP holder (thereby mitigating any damages, again in theory, presuming your video doesn't otherwise harm the artist or their image), making prosecuting you a little harder when the media shifting defense kicks in. I can buy 5 copies of a CD I like for friends and give them to them as presents, and I didn't break any laws, "media shifting" is legal, and the major studios are even adding digital files for portable use right on some DVD's I've seen... so IN THEORY you've got an affirmative defense.

It's not mental gymnastics, it's trying to find a viable approach that allows for reasonable use and compensation to the IP holder - it would be nice if such a system was in place, or there were contractual or legal precedent. Neither applies AFAIK, so the best I can say is proceed at your own informed risk. I don't think the risk is large, but when the RIAA attorneys started cracking grandmas knuckles... well, you have to decide your risk tolerance.

Keep in mind that these sorts of mental excercises are exactly how law gets formed and changed (more typically by lawyers and Judges than laypeople, but we're a smart lot around here...). It's good that this thread has remained on a high intellectual level for once, let's keep it that way.

The SAFE answer is to use royalty free or buyout or compose your own... or a friendly local musician...

The "practical" answer I suspect many use is to take the approach you suggest and keep a rabbit's foot handy... and don't walk under ladders... or break any mirrors... and avoid black cats...


PS- As for the genius who thought he was doing something cool in releasing the G'n'R tracks ON THE WEB... well, he sure got off easy... unless it was all part of a publicity stunt... sometimes things are not what they seem. I think his "infringement" got more press than the actual album release... leading to the question... if you infringe on a song no one even cares about, is it still infringement? <wink>

PPS - the answer is yes, because the ARTIST cares... but they might let you use it for free or a reasonable compensation if you show you care!

The point in this case is not that the videographer broke some legal provision, the point is he behaved badly in attempting to gain competitive advantage by choosing to use copyrighted music without permission. Once he was caught the "everybody does it" bubble burst, guilt (in the moral sense) was undeniable.

If the bride had said "this is my favorite piece of music please use it for the montage" and the videographer had credited the artist correctly, then arguably, the legal situation may have been the same. But the ethical implications would have been very different.

Beware. A lot of the "wedding video is a crime" contingent are just wanting a smokescreen to sell elaborate music videos without regard for law or morals.