Using copyrighted music for weddings
 

This must have come up prior and if so, please post a link.

How do you U.S. based wedding videographers justify using copyrighted music in your videos?

I say U.S. based because I have found there are licensing channels in places like the UK for using such music at very low rates as long as the number of copies is less than 5 or so. I cannot find anything like this process here in the USA so how does one do it, legally?

There was a posting on the net that claims (no copyright law is sited to back it up, though) you can use music for less than 10 copies if the bride/groom supplies you with CD's they own. I see this as a stretch of the clause for digital shifting that allows one to make a CD of a record they own but I'm not sure I would want to go to court with this as a defense.

BTW: There is now something called Zoomlicense.com that is part of WEVA but after searching that site I can not find any songs one would want to use.

Comments and advise, please.

Hi George. Use our search feature; click the search link on the blue menu bar > Advanced Search. Enter the work "copyright" in the keyword field and scroll the Search in Forum list down to select Wedding. You will get several pages of results.

However I should mention that copyright discussions have a way of ending badly around here, so please use restraint when discussing this subject.

Hi George, unfortunately, that's becoming one of those internet urban legends. Plain and simple, there's no structure currently in place that allows licensing of popular music at affordable rates for small distribution like wedding videos. I wish there were and it would be nice if a large organization like WEVA could get that on the legislative table. I really feel that copyright holders are losing out on a lot of potential royalty revenue in the current scenario.

Maybe it will change someday. I see the issue from both sides of the table. I wouldn't want my work stolen. And from the other side, I want to use whatever music the client desires. Of course it's going to be something with lots of airplay and popularity. That's how the B&G know about the song/s in the first place.

-gb-

They do have it in other countries. There is a post on this forum from Australia and they have it. The UK also has it.

WEVA does have this new ZoomLicense thing through EMI but their catalog offers little that I see is desirable. They claim to be licensing new music daily but seemingly not from any current top artists that I can find through their online search.

So how do you meet their needs?

I don't do weddings. And the music thing is probably one reason why. If WEVA got EMI on board, that means the process may be getting started. It will take awhile, just like it did with iTunes and legal downloading. If it works out well for EMI, then other publishers may follow. At the very least, it gives WEVA a chance to show the others that it's a workable business model. I was aware that other countries offered a reasonable licensing structure and I applaud them for having that in place.

-gb-

I am no lawyer so take this with a grain of salt....

I spoke with lawyers on this issue and how fair use applies....

The bottom line "as I understand it" all comes down to how the video is used.

So if the Bride and Groom purchase the music CDs and you get them to sign a release that says that they (and who ever else will possess a copy of the video) will only view the video in the privacy of their own home its ok to use the music. However this video can not be publicly broadcast (put on Internet without a password).

It can not be played in any public event/place. And retirement home where you have your great grandma does count as public place..... So does the church or any other place where a NON invited person can be present.

It is also recommended that when you structure your contract that you provide videography service only and charge a flat fee for that. In that contract you can state that music provisioning and licensing is responsibility of the purchasing party. Hence you only provide your equipment and expertize the rest is on the purchasing party.

So that way if the party only shows the video to relatives in their own home they are utilizing their "fair use rights" if they choose to violate the law its their problem.

Hey Max:

I'm not a lawyer either but I can see a potential problem with your theory. If you are acting as an independent contractor you cannot be excused from your legal responsibilities by somehow shifting them to the party doing the hiring.

You can still be held liable by your own actions regardless but especially if it was clear you knew what you were doing was illegal or at least a violation of the existing copyright law.

A "fair use" defense for wedding videos seems a bit of a stretch. First off, how is the "greater good" being served by your lifting a song for free and using it in a private party's video for which you are being paid a richly sum?

Second, if you use the entire song you pretty much kill "fair use" right off the bat since the amount you have lifted is no longer a small part of the overall whole of the work.

Finally, my understanding of "fair use" is intended to allow for one to comment or critique a work by including portions within the new piece. Not to allow one to use something belonging to someone else without paying for it's use.

How do you justify the making of more than a single DVD of the wedding. To copy it means you have violated the "digital shifting" clause. Now there is more than a single "archived" copy in play.

Ask your lawyer friends if they would be willing to represent you in court pro-bono using a "fair use" defense should you get sued. I'd be interested in their answer.

BTW: If there are any folks out there from the UK or Australia where they DO have a system in place... Can you tell us if the US artists are also included as part of the available catalog of songs you can license for a flat fee or is it only your own county's artists that are available to you.

Please allow me to apologize for my heated reply to Max, above.

Sorry!

The utilization of fair use as you say above is for works that will be public. For example if I want to show everyone in this forum how to use a song in a wedding video, I can take a snipped of the song for educational purposes and use it in my material. That material can be sold and shown publicly. So fair use allows for some usage of copyrighted work in commercial use. So if you are writing a book critiquing a song, you can use a snipped of the song being critiqued and get paid for the book.


What I am talking about is different. You can purchase a CD and play it in your house 1 million times. Thats "fair use". You bought it and you can play it for yourself privately as much as you like.

But here is a twist.....Lets assume you would like to make a stereo system that will play that song in every room. You hire contractor to put a stereo system in your house. He does that. Than you invite a bunch of people over to listen. The system does not work. You call the contractor he comes over and fixes the system on the spot. You ask him to pop in the CD... you play it. What if this was a paid event? Is the contractor liable for you playing the copyrighted music over the stereo system that he built?

My point above is that if the couple has "their song" and they say "we want" that song in that video, it is THEIR creative decision, you simply inserted the song into the video as a paid contractor on their direction. Hence if your contract with the couple states that they are RESPONSIBLE for licensing of music you are off the hook. They can use THEIR right to play their song in their house any time. So if they do not show the video publicly, they are in fact exercising the right to listed to the song they bought in the privacy of their own home.

Finally, this is not to be confused with a videographer who wants to use all kinds of music in the video and simply asks the couple to purchase cds. Then he/she sells the videos to every guest and charges for each purchased DVD. As you can see in my previous post... i recommended charging a flat fee for videography services. Hence you have to give up the rights to sell the actual video. The assumption is that you are giving up your copyright to the couple for one flat fee.... Hence they can make as many copies as they wish...... Obviously your flat fee has to cover all your expenses.... but thats a business and not a legal decision.

ONCE AGAIN I AM NOT A LAWYER

Guys, I'm not a lawyer, but I play one on the internet.
Max, there is what you are referring to as "fair use" and then there is what the law calls "Fair Use." Unfortunately, many people confuse them.
If you want to put your own wedding video on a DVD that also contains copyrighted music for your own use, that is legal and *is* fair use. If you want to put your own wedding video on a DVD that also contains copyrighted music, and make copies of that DVD for your friends, that is not fair use nor Fair Use.

There is no relevant example where Fair Use can come into play for any 'for hire' use, excepting;
Parody
Social commentary
Political commentary
Certain (very specific) educational activities
Certain news-related stories
you might find an article I did some years back to be of value:
[url=http://www.dvinfo.net/articles/business/copyrightfaq1.php[/url]
While it's general, it's also quite specific as to our industry.
Having experience on both sides of the legal table in the copyright arena, it's reasonably clear as to what is and isn't permissible.
If you didn't create the original and don't have permission from the owner of the content, chances are great that you don't have the right to copy.
Australia, the UK, and few other countries do have low-cost licensing proviso's for small/limited uses of copyrighted works. Australia has this down best, but they also have other restrictions that we don't have in the USA. We'll be seeing some shift in this aspect of the industry sooner than later, thanks in no small part to groups like WEVA, DVPA, 4EverGroup, and other special-interest groups.

http://www.law.duke.edu/cspd/comics/digital.html

This is the coolest (and factual) explanation of fair use.

I'll be the first to admit I use popular music in my wedding videos and I don't have legal permission to do so. I wish there was a clear system to legally use the music, but there really isn't, and I think most videographers would agree that trying to sell your services to a couple and telling them you can only use stock music tracks (which they've never heard before) is going to lose you enough clients to put you out of business. So really, there doesn't seem to be much choice right now.

Now, I would have to also agree that putting in your contract that the couple is responsible for securing the rights to the music isn't going to protect you if things go to court. Most of the stuff in your contract probably wouldn't hold up in court (mine too).

Additionally, my wife is a photographer, and when people go to make prints of her work most places will ask the couple for a signed release; even Wal-Mart does this. Why? Because those photo places know that they can't simply take the customer's word and wash their hands of all responsibility. The same goes for us I'm sure.

So what I do is I purchase all of the music to be used in a video (usually from iTunes if they have it). I don't even ask the couple for it anymore, since they might just be burning me a copy of a track they downloaded illegally anyways. It doesn't make what I do legal, but it makes me feel like I'm at least doing the next best thing.

So the bottom line is, you probably are in for a tough decision. I'm a very straight-laced business person, but this is the one area that I feel I have to make an exception. If the artists get together and come up with a system for me to buy "use rights", then I'll be all over that. Until then, I'm doing what I feel is the next best thing.


Oh, and it doesn't matter if you charge a "flat fee" for videography. If you are distributing CD's or DVD's, and you're being paid for that, then it IS a product. This is why I have to charge sales tax on the entire amount I charge to a client for a wedding video, and not just on the cost of a DVD. It is considered a complete product and can't be separated out.

Again, as an independent contractor you cannot assign responsibility for infringement to the client. If you were employed by a company and they told you to use copyrighted music in the video you were editing then, yes, the company would be liable. As an independent contractor you take the responsibility for knowing the laws and abiding by them upon yourself.

Can't have it both ways. Want the freedom of being your own boss? Then accept the responsibility for your actions.

Does anybody know if the iTunes license clause that says you can't resell your purchased tracks has ever been tested in court? I recall assertions that such a restriction is illegal (if you can buy it, you can sell it), but I never heard of any challenges. If that clause in the iTunes license weren't there, then Travis's approach could actually be legal.

-Terence

The problem with all this is that once you put the music with a picture, you have to obtain synchronization rights as well. It gets complicated real fast.

-gb-

Exactly! The real hurdle is not redistribution of the music on a DVD, but the fact that you're synchronizing it with video. Even if you own the CD with the song on it, you only have the right to PLAY that song. You don't legally have the right to edit video to it. To be perfectly honest, I think it's pretty silly, but I think it's really there to prevent massive misuse (like using the song in a production that's going to be sold by the hundreds or thousands).

What's funny to me is that when Napster was allowing people to download shared music for free (totally illegal), I didn't use it. It was an obvious breach "fair play". I actually argued with friends and family for using it, because the people "sharing" their music were taking sales away from the artists.

Now in my business, me using Aerosmith's latest song (after purchasing it on iTunes) isn't taking any sales away from the artist. In fact, the couple almost always already owns the song, but I'm making an additional purchase from the artist. I know it's not legal, but I certainly think it's fair, considering the intended use of the song.

The bottom line for me is that anything that is important enough will get attention. "Sharing" music was important enough that the music industry got together and shut Napster down. If charging fees to videographers for music use in wedding videos becomes important enough, they'll do something about it.

Until then, I can't stay in this business if I'm going to have to tell my clients, "Nope. Sorry. I can't use your favorite song in your wedding video. It's illegal. Yes, I understand you have the CD. Yes, I'm sorry you own all 12 of that artist's CD's and have paid to go to every concert. Yes, I know every other videographer in town will do it. Okay then, have a nice day. Give me a call if you change your mind".

Yeah, right, lol.

The Sync license
 

The sync license has been largely left out of this discussion. For good reason. It is hard to understand, makes no sense, and is harder than crap to actual get any real information from with out goign through a music clearing company.

I honestly have never had ANY issues with clients over using strictly Buyout music. I tell them strait out that I cant use any copyrighted music, and I have yet to have any client complain about that. I understand some couples might want "their" song in the video, but im not willing to run the risk to get busted. I know the chances are ULtra slim of the RIAA coming down on me, but get some good buyout music, make good shots, and you should be good to go.

What Travis Bowers says makes sense. If everyone who was a member of this WEVA (I am not) organization held firm on not using copyrighted music the word would get around that to do so is unethical and against what "legitimate" wedding videographers do.

BTW: On the matter of (perhaps) not getting caught.. I was DP on a job for the software industry's trade organization. They have an investigative arm as you might expect. We did a story on a young fellow who was downloading pirated copyrighted software. He was not doing it on his own home computer but the one at his parents house.

Well, the FBI raided that home one morning around 6:00am. I believe there were some eight agents with vests and armed to the teeth. They tore the house apart. Took the computer from the living room and the one his retired father had in a small shed in the back he used for his mail order metal working business. They were held "captive" all this time while agents then went after the son at work. When mom had to go to the bathroom a female agent went in with her.

The father never got his computer back and lost his little business. The son lost his wife and kid and may lose his job (at a bank!) if found guilty.

It was not a pretty site. Doing the video was a way for the son to lessen his sentence and perhaps get probation. The FBI will investigate copyright infringement of any kind no matter how big or small the case. This case proved it to me!

Travis C has an interesting idea -seems like it would be a reasonable defense to "buy" a copy of the song for each copy of the DVD... not saying it would save your bacon on an infringement case, BUT it would show you TRIED to compensate for use...

Just curious, for those who might know - how do synchronization rights compare to "other" use costs? Obviously this is what the big studios have to get for their movies, and there must be some system in place for reasonable fees. I'm guessing that there's compensation scales in place, and probably reciprocal agreements as the use of a song in a movie might result in more sales for the song and more interest in the artist (like resurrecting "Bohemian Rhapsody" for WW?).

Intellectual property/copyright/patent law is a real pain to figure out, and it's tough to figure out what is "fair" or as Spot put it "Fair"... Music is an extra tough thing, because it's EVERYWHERE - muzak/car radio/etc, etc. You sort of EXPECT to hear music and probably your favorite tunes throughout your day without paying for it per se (or at least more than once at a cheap price), so it's a bit of a shock when you're expected to PAY...

I once advised a friend to go into IP law - figured it pretty much guaranteed job security... still good advice!

DB>)

Hi George -

There's another thread on here re. matt boxes where a poster is cheering on an Indian company "ripping off" the designs of another company...

I think it's important to remember how you'd feel if someone were stealing YOUR product! Theft is theft. If you'd want to get compensated for your work, isn't it fair to expect the other guy would too?

I guess the challenge becomes how do you comply with a licensing system that apparently DOESN'T have a method in place for purchase of rights at a reasonable price?

I always argued that if software (be it computer or entertainment, movies and music included, so lets call it "product") was fairly cheap, there would be little incentive to "steal". Even most software companies realize this and give away limited time or feature DEMOS of their product in hopes you'll find it useful and buy it... even if it is expensive. It's really hard to justify stealing a sub $20 product if you and your time are worth ANYTHING at all...

Obviously somebody has to come up with a profit model that compensates the ARTIST and the distributor, whoever that may be... I think that's one of the HUGE battles we will see fought in the near future (it's already begun to some extent...) - the OLD distribution channel vs. the NEW distribution channel - times they are a changin'... technology will probably eliminate or at least reduce many business models to the point of near extinction. It's not like typesetting is a growth industry for instance... look at the "democratization" of video on YouToob...

We all like to eat, it's just how do we do it, and it's good to respect the next guy's right to eat too while we're at it!

DB>)

I think Stock20.com is moving in the direction that would make it a little easier for us to buy artist's music.

It wouldn't be hard I imagine to add an option to iTunes to purchase a song for "use rights" instead of "play rights". Just charge me more and I'll pay.

What's funny is that I bet a lot of these music artists have their own wedding videos that have been edited with other musicians music anyways. No one seems to care, and why should they? If someone wanted to take a wedding video I edited for them, and have another editor cut it up and make something new out of it, I wouldn't have a problem with it. It's not like they making it to sell a million copies to their friends. Who cares?

I also wonder about DJ's. I mean, they just buy a bunch of songs on iTunes or via CD's and then play music at a public event. That certainly can't be legal, but there's no industry fuss over that either.

To put things in perspective here, take this for what its worth.
Back in the 70's and 80's there were some successful bands that realized that if they wrote songs that were really easy for local bar bands to learn and "illegally" perform at clubs, then they were ensuring their tunes would become heard and in turn become more popular.
I understand that times have changed with the internet and all, but I can still sit and remember the "good ol days".
If every videographer in the world went with exclusively stock music, then the artists will lose out in the end by having their music heard less.
I am more than willing to pay for music I use, and hope that eventually a (easy to use) mechanism will be put in place to take my money!

Mark

The venue, the hall or restaurant, is charged an annual license by the recording industry based on the number of occupants it holds. For that license they may allow music to be played by live bands or use recorded music.

Same goes for diners that have a juke box. They get a bill (ASCAP I think) every year or 3 years and they can play all the records they want. This has been the standard operating procedure for as long as I can remember.

Ever go into a small diner and see a note on the juke box that says "out of order"? It's not the juke box. The owner does not want to pay for the license.

Actually there is a fuss from time to time. Just a few years ago the performance rights organizations went after doctors and dentists who played the radio or other sources as background music in their offices without paying commercial performance roylaties.

It is completely legal to play the radio (or television) in an office since broadcast stations also pay for the music they use on a blanket license basis. Therefore, the royalties are being paid at the time of broadcast. As long as you carry it live and do not record it for playback at a later date.

The playing of CD's is another matter and would, if the recording industry wanted to make an issue of it, probably fall under the same category of a diner's juke box.

That's why many opt for a service like Muzak where there is never any worry about someone knocking on your door looking to be paid a royalty. Agents for the record companies go to the doctor too.

Ah, interesting. Thanks.

This kind of reminds me of the music on youtube. There are several offroad vids that have been put together (I wont say by me.. ;)
that contain copyrighted music. It's still illegal, but it's not really a problem (imo). Especially since trying to rip music from youtube would be stupid.

When people ripped off Greorge Lucas' stuff and made their own Star Wars trailers, Lucas loved it and even encouraged it to a degree. I realize that not everyone thinks this way.

All in all though, even though record labels are not trying to put wedding videographers out of buisness, it would be nice to have some kind of affordable license to be protected.

I just found this site.... www.Musiclicensingstore.com
Seems to average about $30.00 per song for our intended use.

Much ado about nothing! I have never heard any music publishing company suing anyone for using music on someones personal wedding video.

Stelios

Just because you haven't heard about it doesn't mean it doesn't happen and with great frequency. Such lawsuits are often setted before trial once the defendent's lawyer makes it clear to him that he doesn't have a prayer of winning.

The problem that makes it illegal is not that the music could be ripped from the download from YouTube. It's illegal because the poster TOO YouTube stole the music when they copied it into their video.

The idea is that music is a commercial product. The ONLY reason the people who wrote it, published it, performed it, recorded it, distributed it, marketed, sold it did all that was to make a buck and pay their bills. When you buy a CD you are licensing it for your personal listening pleasure. The law does allow you to do a few limited things to make it more convenient to perform its primary function, like make a copy on your mp3 player to listen to while jogging, for example, but aside from those limited uses, listening to it is all you can do with it. If you want to become part of the party and use that product to somehow pay your OWN bills or even if you just want to be a nice guy and make it available to others to enjoy, you need to pay the creators for the priviledge. While I agree that it would be great if it were easier and cheaper for us little guys to get the required licenses, there's no compelling reason that it 'ought' to be that way. Lennon and McCartny wrote "All You Need Is Love" for THEIR benefit, not mine, and there's no moral principal that says I have a right to use it to my benefit beyond the pleasure I get from listening to it. It's the result of their personal work and they (or their estates) have every right to say what it can and cannot be used for and how much each use will cost. As to whether their demands are reasonable or not, that's just not something any of us have a right even to have a voice in ... the music is their property just like your camera is your property and they have the absolute right to total control over what it's used for.

I've been there before, and there are other sites like it as well. The problem is, they don't carry music from popular artists that the b&g are likely to ask for. The music they sell is good, but if the b&g wants a highlight video set to their first dance song, which happens to be "Right Here Waiting" by Richard Marx, then I'm still stuck.

Interesting article on this subject.

http://www.eventdv.net/Articles/Read...rticleID=11202

Here is the web site for the wedding licensing organization in the UK

http://www.wvrl.co.uk/richtext.asp?p...&content_id=38

There is also an interesting case where a videographer was sued by the recording industry for using music on Amway videos he made. He was found "wholly responsible for the copyright infringement" even though he tried to get some of the Amway distributors involved. The court would not see it.

This gets back to my reply earlier on that, as an independent contractor, we cannot pass the responsibility for our illegal actions to our clients. The "she told me to use that music" defense just will not work in the eyes of the court.

http://www.law.emory.edu/11circuit/m...14123.man.html

Finally, YouTube does not condone the posting of copyrighted material to it's site. It clearly states that in the user agreement and when you try to post you will get a prompt to agree to those terms before uploading. They also will not protect violators and will pass your real identity or to law enforcement if served with a subpeona.

There are any number of suits pending against Google and YouTube for copyright violations. Just do a search and you'll find them!

What about the DJ's playing this copyrighted music at the reception? They are being paid too, and I'm pretty darn sure that they are not paying royalties. DJ's fall under the same situation as we do. The music they purchase/download is meant for non-commercial use same as us, but they are getting paid to play it. And what if they do have a license for each song played (which, of course, would cost them way too much money)? We are still recording the reception, hence we are recording the music that's being played. Are we supposed to ADR the reception, and cut out the music in the background? This is a difficult situation. I understand arguments on both sides (I, like others, do use music for the video's and unfortunately run the risk).

I've suggested to B&G's not to use their choice of music due to the legal issues and they looked at me as if I was crazy. Imagine a DJ telling the B&G that they could only play royalty free music at the reception... think they'd get hired?

Already covered in this thread, Todd. Go back and read it over.

Thanks George,

I did read the thread, but somehow I missed that (must have been when my two boys were jumping on the couch).

That makes sense, but how does it cover the fact that we tape the reception? Of course the music (typically the entire song) would be heard during the first dance, etc. Obviously we can't cut the music out. Even though the venue and DJ is covered due to it's license agreement, we are not. How do we legally stand in this case?

Todd

I'm not a lawyer but I would venture to say you are somewhat safe if you are simply covering the event and you do not control (add in post later on) that music.

My rule of thumb when I work for a producer is to always have any radios, CD players, TV's turned off prior to shooting. Even art work and photographs are now a no-no unless created by the person we are shooting.