Very high price for using music

[David Seguin]

Originally Posted by Shaun Roemich

By some of the "logic" used in this thread, it seems I SHOULD be allowed to acquire copies of footage shot by all the immensely talented videographers here and reassemble it for a VERY nominal cost (like the cost of the DVDs themselves) for a benefit fundraiser I'm holding for the Assembly of People Who Like to Kick Babies and Puppies...

What? You don't want YOUR good name besmirched by inclusion of your art in my program? Wow, are people greedy... Listen, I'll give you $50. And an IMDB credit.

<Tongue planted FIRMLY in cheek>

If it's not yours, ask before you use it. My mom taught me this when I was 3.

Well that's a different way of looking at it lol

I get what you mean though

[Dave Blackhurst]

Originally Posted by Andrew Smith

Have you got a source for that? I find it hard to believe that Conan's people could justify spending $1M for 30 seconds worth. On a business level, there's got to be a significant payoff in order to justify that kind of expenditure and the entrepreneurial risk that goes with it.

Andrew

If you 're unfamiliar with the final weeks of the Conan show, it was filled with expensive "stunts" - it was hilarious as the "Tonight Show" controversy boiled up and over the top - he had a Bugatti Veyron, Stones clips, A thoroughbred horse, and so on - basically the "gag" was to see how much of NBC's money he could spend in the final days of the show, which actually became worth watching (IMO). The "payoff" was reciting how rediculously much MOOOLAH each portion of the gag cost... take that NBC execs!

In the end I don't know how much of the acrimony was real, and how much was "high theater", but since it "took the safety off" on the show, it did make for interesting watching, and I think those last days were good for some decent ratings (which had tanked when Conan took over the show...). Even the guests cut loose, "no holds barred", and it was raw and hilarious... up until that time Conan's "tonight show" (small letters intentional) was pretty sad, again IMO...

[Andrew Smith]

Ahh, that makes sense. No wonder they were paying top dollar!

Andrew

[Dave Blackhurst]

Once again, at the risk of starting another copyright thread war, I'll mention our own Chris Hurd's "Carterphone" thread... basically the argument that you COULD play back the video with the song from a CD player, separate playback, but technically NOT illegal, and as noted, a wedding couple could make the copy for ther own use, again not illegal, merely a shift of digital format. But it becomes illegal once the technical innovation of a NLE/computer is used by a "professional" to achieve the exact same result... hmmmm.

Where this gets messy is where there potentially is big $$ involved, and the enforcement requirement for both financial and issues of "artistic integrity" (Geoffrey, duly noted!) requires an artist/copyright holder to prosecute infringement in some meaningful way... of course if there's "real" $$ involved, there are attorneys looking for work...

ANY artist/content creator has the need to protect THEIR "work", and profit therefrom, video dudes included, and yet in the fallout from the Digital Revolution, it's all a bunch of bloody 1's and 0's, about as difficult to copy/manipulate/media shift as it is to change your shirt...

Heck, I've just been alerted to a site "scraping" eBay listings, mine included (blatantly violating my copyright on my photos and text, and I can already show tortious interference with "my" business as I was contacted by a "confused" customer). That site is (mis)using that stolen digital information as "content" to ply their advertising site - I'll be sending them notice shortly, and asking eBay to shut them down and divest their "profits" from the theft... I've already run into another similar site, must be the new "scam"... steal content from wherever on the web, slap it into a template to make it "yours", and slap PPC ads on it...

As a practical matter, I still say that the state of the law doesn't really have an effective way of dealing with the reality of the situation, post digital revolution. One only needs to look at the "music business" and the state thereof to see the net results...


I'd also note that there have recently been some "relaxations" of "fair use" coming out of the copyright and trademark office in regards to "documentary" use... so there's some acknowledgement that strict application of the DMCA is perhaps a bit TOO restrictive. Maybe in time there will be a "hammering out" of more workable "use and re-use" of copyrighted material. There has to ultimately be a balance between content creator rights and "fair use", even within some limited commercial contexts.

[Steve House]

Originally Posted by Dave Blackhurst

Once again, at the risk of starting another copyright thread war, I'll mention our own Chris Hurd's "Carterphone" thread... basically the argument that you COULD play back the video with the song from a CD player, separate playback, but technically NOT illegal, and as noted, a wedding couple could make the copy for ther own use, again not illegal, merely a shift of digital format. But it becomes illegal once the technical innovation of a NLE/computer is used by a "professional" to achieve the exact same result... hmmmm. ...

It's not so much that using a computer to make the copy makes it illegal but rather who is doing the copying. If the wedding couple makes a copy of a CD they own for their own personal use, it's perfectly fine. They can play their own music along with watching their wedding video and it would be perfectly okay. But if another party makes the copy and subsequently sells or gives the copy to them, it's not. Remember, you can't legally rip a copy of a CD you own and subsequently sell or give the copy to someone else. As soon as the person doing the physical copying transfers the result to another party, it becomes illegal. That's the position a wedding videographer is in ... he not making a copy for his own personal use, which would be legal, he is making copies that are incorporated into a second copyrightable work and then selling or giving those copies to the wedding couple. If he doesn't license the music he uses, that puts him in exactly the same position as the guy at the corner store who buys the latest hit CD and burns off copies on his computer to sell under the counter, he's making copies for public distribution. The only difference is the wedding videographer is only distributing a handfull of copies to one customer while the commercial pirate is distributing as many copies as he can to hundreds or thoudands of customers. The Carterphone case, as I understand it, deals with making copies for personal use, NOT with making copies for distribution to third parties. Most wedding shooters would say that they would be at a disadvantage if they didn't use the couple's favourite music and they would be right - the music used contributes materially to the mood and ultimately the success of the production. As such, the people responsible for creating and performing the music and making it available in the marketplace certainly deserve a piece of the videographer's action

I'm not so sure you legally COULD playback a CD on a separate player as the video played on screen. That's the way movie sountracks actually WERE played back in the early days and that was the practice that gave rise to the whole notion of the synchronization license that we need today to use copyright music in our productions. The music was being played back synchronized to the picture and it doesn't matter if it's played on a physically separate playback device or incorporated into the soundtrack in the video files on the tape or DVD. In fact, for the earliest films the music was performed by live musicians in sync to the picture on the screen and then, as today, with the introduction of the synch license the filmaker licensed the musical score from the composer/publisher and paid a royalty for its use with his fiilm.

[Philip Howells]

Steve, that historical perspective makes the whole question of the legality of my suggestion much clearer - and of course, the answer to the original question much simpler. Thanks.

[Noa Put]

and of course, the answer to the original question much simpler.

That was never the original question, this topic has sidetracked due to my remark about using copyright music in weddingdvd's and that this was allowed in my country.

Now when I first asked about this (around 2005) I got a clear answer from the organisation that deals with these matters that this exception was made for creating and delivering weddingdvd's. Because some did not seem to believe me I inquired again this week at that same organisation and got the same answer, again, today.

Strictly taken the law applies like Steve mentioned in his post above BUT for weddings they make an exception here, the guy on the phone told me that this exception is nowhere to be found on paper (that's also why he called me and didn't want to put it on paper) but he clearly said that as long as the dvd is only used by the couple and even if I was the videographer selling it to the couple they actually didn't care and I did not have to inform them about it. He told me that they never get requests about this specific matter from other weddingvideographers about using copyright music in wedding dvd's.

Only when the wedding dvd would be made public, like when you use it as a demo on a site or to distribute it to other clients then it becomes a different matter but only for weddings where the dvd would only be used by the couple and only showed in their own livingroom it was a unwritten exception they made.

So as you see it's a grey area and that's the last thing I want to say about it, I just wanted to confirm that what I heard 5 years ago is what I heard again today. I only do make these exceptions for weddings but for ALL other productions I do follow the law to the letter.

[Jim Andrada]

Hi STeve

Interesting point about the history of synchronization

However, I really wonder about it - as I understand it, in order to be copyrightable something has to be "fixed in tangible form" - which would seem to exclude a CD played along with a video etc - if it were played by humans, then each time it was played it would be slightly different - ie nothing would be "fixed" in any form, tangible or otherwise.

If I happen to listen to a CD while watcing TV out of the corner of my eye, am I "Synchronizing" something? Clearly the CD is playing along with whatever is on TV - or maybe You tube or whatever.

Of course, I'm probably as wrong about this as I am about most other things.

[Richard Crowley]

Even without the question of *synchronization", just the "public performance" rights for a major rock anthem at a large corporate live event would be major $$$ (if the rights-holders even agreed at all).

[Steve House]

Originally Posted by Jim Andrada

Hi STeve

Interesting point about the history of synchronization

However, I really wonder about it - as I understand it, in order to be copyrightable something has to be "fixed in tangible form" - which would seem to exclude a CD played along with a video etc - if it were played by humans, then each time it was played it would be slightly different - ie nothing would be "fixed" in any form, tangible or otherwise.

If I happen to listen to a CD while watcing TV out of the corner of my eye, am I "Synchronizing" something? Clearly the CD is playing along with whatever is on TV - or maybe You tube or whatever.

Of course, I'm probably as wrong about this as I am about most other things.

The "tangible form" is why music or a play is copyrightable but specific performances of that music or play are not. Yet recordings of those perfomances are. Your same argument would apply to sheet music - the exact frequency and duration of each note is slightly different each time the music is played. The vibrations of musical notes in the air aren't fixed and tangible, but a physical piece of sheet music says "Here play an A-flat for 1 beat and then play a C-sharp for two beats" in music notation and that is. The sounds of the words spoken by an actor are ephemeral but the script that defines what those words will be is tangible. Perhaps your argument might have some merit if all one was doing was playing a random CD or had a radio turned on in proximity to the video but as soon as there are directions to the effect of "play the US Air Force Band recording of "Smoke On The Water" as the river-rafting scene begins" you have something 'fixed'.

[Richard Crowley]

Note that the licensing of "pubic performance" is not limited to playback of pre-recorded music. ASCAP and BMI are agressively going after public venues down to the smallest coffee shop and hot-dog cart for public performance license fees for both recorded music and live music.

A news story currently making the rounds here in Portland, OR:
Exerpt from news article in Willamette Week...
&ldquo;BMI/ASCAP&rdquo; | Willamette Week | February 23rd, 2005

BMI wants its cut, no matter how small the venue. Ask Stefanie Fisher, the owner of the Abbey Cafe on North Killingsworth Street. Although the 12-seat coffee shop plays only independent local music, BMI demanded its $400 a year.

Fisher finally caved in so that her cafe could keep playing CDs and hosting small, live shows.

A month later, however, another tentacle of the music industry (and our other Rogue) the American Society of Composers, Authors and Publishers , or ASCAP sent Fisher a $900 bill for its "service."

Fisher explained that the Abbey Cafe only plays music by local acts, but ASCAP still wants her to pay its fee because her musicians "might do covers."

[Geoffrey Cox]

Johann Mattheson (1681-1764), Der Vollkommene Capellmeister, once said about musical borrowing:

'Borrowing is permissible; but one must return the thing borrowed with interest, i.e., one must so construct and develop imitations that they are prettier and better than the pieces from which they are derived'.

Ah for the days when even the concept of intellectual copyright didn't exist (then again, many on these pages would struggle to make a living without it).

But the moral point still is that simply using someone else's music to enhance something unrelated to the music and / or to solely make financial gain without the author's permission is wrong and always has been. I would not include dubbing a couple's favourite music on to their wedding video in this as to me they want it because they love the music not for any other reason and find it hard to believe a band would sue over it - they would certainly look very bad if they did! And referring back to the quote, I don't personally have a problem with sampling etc if one 'returns the thing borrowed with interest', though that wouldn't stand up in court!

And Steve, I was intrigued to find out recently that not only was live music synchronised with the images in the early days, but whole troops of skilled performers hid behind the screen providing live sound effects, including lip-synched speech! So much for the 'silent' cinema! (from a great book by James Lastra).

[David Seguin]

I'm sorry, but before I go on I feel the need to point out this hilarious typo.

Originally Posted by Richard Crowley

Note that the licensing of "pubic performance"...

Haha..."pubic performance".

Anyway, here's what I really wanted to say:

Originally Posted by Richard Crowley

Although the 12-seat coffee shop plays only independent local music, BMI demanded its $400 a year.

How can they ask for money if the music the coffee shop plays is local indie music? I would completely understand if it were songs that are protected by BMI, but otherwise that's just unfair. It's like saying that if I decided to open my own pub, and have my friend's band play there every friday night, they could charge me for it. Yet my friend (and his band) agreed to play for free as a way of promoting their music. How does that make any sense?

[Steve House]

Originally Posted by David Seguin

....How can they ask for money if the music the coffee shop plays is local indie music? I would completely understand if it were songs that are protected by BMI, but otherwise that's just unfair. It's like saying that if I decided to open my own pub, and have my friend's band play there every friday night, they could charge me for it. Yet my friend (and his band) agreed to play for free as a way of promoting their music. How does that make any sense?

I'm guessing BMI and ASCAP are assuming the musicians couldn't have actually composed all the songs they're playing. Being an indy musician or band doesn't mean that they are the actual songwriters as well, exclusively perofrming there own compositions, and an indy could make an entire career performing covers - tribute bands do it every day. The BMI/ASCAP fees cover performance royalty payments going to the music's composers, lyricists, and publishers of the songs the bands are playing and have nothing to do with the status of the band itself. When we think of music we think of the artists themselves and tend to forget that there's a whole music publishing industry behind them that actually creates most of the music the artists perform,

If the band is performing only their own stuff, they may be self-publishing and that makes them become part of the whole royalty process. The fees ASCAP and BMI collect from the venue ultimately trickle back to the band in the form of royalty payments covering the music they have been performing. The band gets a royalty each time their composition is performed, whether thr performance is by the band themselves or by a third party. Thus the venue is indirectly paying the musicians as the composers for the performance of the songs they wrote. Just because they're a local indy doesn't mean one should expect their talent to be free.

[Jim Andrada]

Interesting. It makes me feel so much better knowing that BMI/ASCAP are assiduously tracking down the heirs of Bach and Scarlatti and others of that era so they can pay them a royalty based on the number of times a classical guitarist performs their work at our local 10 - 15 table coffee shop.

Although now I'm wondering just how they would know how many times the works were performed considering that nobody working in the coffee shop would even know what was being played much less how to report it to who.

Edit

OK - Just in case you didn't figure it out, this was supposed to be tongue in cheek (or foot in mouth, or...)

However, I started huning around to see if I could disprove my own comments and came across a very interesting (if very old) thread here

http://www.guitarseminars.com/ubb/Fo...ML/002062.html

If all the apparently knowledgeable commentary is to be believed, it turns out that nobody has any real idea about how often things in fact do get performend live.

Anyhow, I thought the thread was interesting.