Paul Tauger,

I totally understand that it is illegal to add copyrighted music/songs in wedding video. The law is very clear. Have been thinking a lot on how to avoid being sued. May I transfer the risk to the client by stating that the client is responsible for obtaining all necessary copyrights and I am only responsible for taking the video and doing the editing?

I am sure there must be a way to stay clean.... anyway, it is the client who wants the copyrighted music and a wonderful wedding video... not me!

You mean you DON'T want to be sued? Chances are slim that you would be caught. However, for your own peace of mind, just tell the couple "No". If they really want the music, go to ASCAP or BMI, and get the cost of the music they want. Tell them it is either that, or canned music, but you won't steal for the price you gave them.

Just my two cents...

Getaway Driver to Special Agent: "Well yes, now that you mention it, officer, perhaps it was odd that these armed gentlemen asked me to take them to the first national bank. But you have to undserstand the robbery was all their idea. I just drove the car."

Um, Paul, no lawyer is going to advise you on how to commit wilful copyright infringement and get indemnity for doing so.

However, if the client is really obtaining permissions, there are ways to protect yourself with indemnity agreements. Whether they'd do you much good is a case by case question. You'd need to consult a lawyer (and not on a message board).

May I transfer the risk to the client by stating that the client is responsible for obtaining all necessary copyrights and I am only responsible for taking the video and doing the editing?Nope. Copyright infringement liability is strict liability, meaning, if you've done it, intentionally or not, you're liable. You can ask the client to indemnify you, but that only means that, if you're sued for infringement, you can sue the client for your damages and expenses.

Um, Paul, no lawyer is going to advise you on how to commit wilful copyright infringement and get indemnity for doing so.He's not asking how to commit infringement. He's asking how to avoid liability, which is a perfectly acceptable question. The only problem is, the answer is, "you can't."

You'd need to consult a lawyer (and not on a message board).I am a lawyer. Though I don't give specific legal advice to posters here, since none of them are my clients, this is a general enough question (with a simple and straight-forward enough answer) that I can respond.

Paul,

Thanks for correcting my understanding of liability. So, I have obligation to ensure the material sent to me is legal, right?

Just want to better understand the concept:
- For contractor-client relationship and the music is provided by the client, in order to protect myself, does it mean that I shall not use the music before I am provided proof showing the right of usage is properly granted by the copyright holders?

- For employer-employee relationship and the music is provided by the employer, obtaining proof from the employer would be difficult. If I am an employee, anything I can do to protect myself if the music may not have been paid for? The publishers normally sue the employer, not the employee, right?


Thanks!

"If they really want the music, go to ASCAP or BMI, and get the cost of the music they want."

Amen.

Just buy the rights from ASCAP and pass the cosst back to the client. It's not really that expensive.

Last time I checked, ASCAP and BMI would only sell performance rights. The did not do sync or mechanical. Since Harry Fox got out of the business of sync, there is basically none of the rights licensing groups that support video sync and distribution. You have to go directly to the publisher and artist.

It is almost too hard to do the right thing. I gave up and bought SonicFire Pro.

I don't know, it sounds pretty clear cut what he's saying:
"I know I'm committing infringement and I want someone else to take responsibility for it." As most of the other people who replied suspected, it sounds fishy to me. Just my jaded and pessimistic opinion, I guess.

<<<-- Originally posted by Peter Moore : ... "I know I'm committing infringement and I want someone else to take responsibility for it." As most of the other people who replied suspected, it sounds fishy to me...>>>

Peter,

What would you do if your client give you the music and tell you that he/she has paid/will pay the proper fee to the publisher? Certainly, you may choose not to accept the job.

I wouldn't know if my client lies to me or not. Basically, I would like to get the job and I need to protect myself if my client lies. Of course, if there is no way to avoid the liability I would be left with no choice but to insist the copyright fee be paid via me or I won't get the job.

Sorry that my messages sound fishy. May be it is my English. In fact, I have not done a single wedding video before and have not used any copyrighted music in my video. I am preparing to enter the wedding videography market and want to figure out all the legal/business stuff before I enter. This is a good forum and this "Taking care of business" section is very helpful to new comers like me!

<<<-- Originally posted by Peter Wiley : Getaway Driver to Special Agent: "Well yes, now that you mention it, officer, perhaps it was odd that these armed gentlemen asked me to take them to the first national bank. But you have to undserstand the robbery was all their idea. I just drove the car." -->>>

Peter Wiley,
In this world, many innocent taxi drivers have helped robbed banks without knowing it until it's too late. I don't know how similar videography is to taxi driving. However, I do know that, like the taxi drivers, videographers need to earn a living and many of them cannot spare the effect to check out their clients and the materials they were given. Taxi drivers may have an iron stick hiding somewhere as a defence weapon. What defence does a wedding videographer have?

It is common sense that will usually save you in the end. If you know that there is no license to use the music, don't use it. Ignorance never works as a defense. You are getting paid to put together the video, so it is up to you to make sure everything is legit. It is up to the client to decide whether they are willing to pay the extra fee.

On the other side of the coin, getting caught using unlicensed music on a wedding video isn't likely. It is pride and professionalism that keeps most from stealing from a fellow artist.

Ok, well I'm sorry if I misunderstood but it sounded like you KNEW the client was giving you copyrighted material that they probably didn't have permission for. If you're talking about thinking the client might lie to you about permission...

"What would you do if your client give you the music and tell you that he/she has paid/will pay the proper fee to the publisher? Certainly, you may choose not to accept the job."

You should insist on proof. As Paul T said indemnity only allows you to force the client to cover your liability - and if he goes bankrupt you're SOL. Whether this helps you depends on how big the client is. In fact, if you really want to be safe, obtain the permisisons yourself. It's your ass.

Again, my advice is to consult a live lawyer and establish an attorney-client relationship. He'll be able to hear all the facts of your situation, give you formal opinions, and draft up whatever agreements you might need. This is not an area to fool around in - wilfull infringement can carry very severe penalties.

Of course this depends on how valuable the job is. If it's only a couple thousand bucks, it's not worth paying a lawyer for, and it's not worth the risk of liability. My advice is if it's not worth hiring a lawyer for, it's not worth the liability risk. In that case, go only with music you know you have rights to.

ok so im confused. I own a CD, i went out and paid for it, have the real thing, not a copy, i can burn songs from it all i want for my own personal use, cant i? If so could i not also have it on a video tape for my own personal use? If i can have it on a burned cd, and a video tape, why cant i just add some wedding footage to it? i still bought the music, its still just for my personal use, is this still illegal? or does it become illegal when say my friends buy the tape and now its not just for my personal use?

Okay, guys, I'm at a seminar today so I don't have a lot of time to answer the new posts . . .

Re: Proof: Copyright infringement liability is strict liability, meaning that, even if you ask for and are provided with proof that rights have been obtained, you are STILL liable if what you do turns out to be infringing. The best way to be completely safe is to obtain a license yourself (and either learn enough about licenses to determine whether it's valid, or consult an attorney ). I'm _not_ suggesting that anyone do any of this. I'm just explaining the general principle of law that applies.

Re: Copying a CD you bought onto video. I've written on this subject many times, here. Please do a search on my name and you'll find more thorough explanations than I have time to do right now.

Re: Is it worth hiring a lawyer? There are two answers to this. Obviously, for the typical wedding videographer, it is not cost-efficient to consult an attorney on every job -- even a two-hour fee could wipe out any profit the videographer would make. It may make sense, however, to establish a general relationship with a lawyer, so the videographer can pick up the phone and simply ask. As a rule, I don't bill short phone calls (nor do most lawyers). Of course, it's still necessary to retain the lawyer in the first place (and, unfortunately, for my firm, it's not cost efficient to accept retainers that would be typical from a one- or two-man video operation). The ultimate question comes down to business risk -- if you are extremely risk averse, you won't use commercial CDs without a license. If you're willing to play the odds and assume it's a long-shot that you'll get found out and sued, then you will. I can't advise about what makes good business sense in terms of risk acceptance -- only the business owner can do that. All I can do is explain the applicable law and explain the kinds of decisions _my_ clients make when they determine whether or not to sue for infringement of their IP rights.

Re: BMI and ASCAP: They don't have the necessary agency from the composers to grant sync rights. However, the can do whatever their member/composers want them to do and, if they wanted to act as a clearing house for wedding video sync rights, they could. Unfortunately, I've spoke, informally, with BMI's counsel about exactly this issue and, at least as of last year, there was no interest on the part of BMI to get involved. This is something that the wedding videographer's trade group should take up -- either lobby Congress for a statutory exception, or try to persuade BMI and/or ASCAP (the most likely candidates for administering this) to handle licensing "small commercial use" sync rights.

Re: Other considerations: I've said, for some time, that my belief is that using music from a legally-acquired commercial CD on a wedding video should come within fair use doctrine and, arguably, within the AHRA. The problem is, no court has addressed this yet, and won't until these issues are raised in the context of a copyright infringement defense. Much will depend on the current climate vis-a-vis IP protection (not good, thanks to RIAA), which administration appointed the particular judge ruling on the case (and the appellate judges who decide the appeal, prior to which the decision isn't controlling), and what part of the country the underlying action is brought in (fair use and statutory construction will vary from circuit to circuit). If anyone here ever gets sued for this, please let me know and I'll try to persuade my firm to let me handle the defense on a pro bono basis (no promises, though -- this is not a guarantee that I will be able to represent you if you're sued).

Paul,

The key thing in my example is that the Taxi Driver could SEE the weapons and that should raise one's suspicions, or any reasonable person's suspicions. In such a circumsatnce most taxi drivers would drive away as fast as they could get away, I think. Most of the time, they just avoid stopping for people who look suspect.

So when the video professional has a client who brings him/her recorded music to include in a video it's just like seeing the weapon. A professional has to be suspicious because of the potential costs to his business, his reputation etc. As someone who might rely on copyright for income a video professional will have very weak defense if all he has to say is "it was the client's idea." A professional has to check -- that's part of being a professional, it seems to me, and it's just the kind of thing a plaintiff would argue.

The only thing to do, really, is to tell the client you won't use music without clearance and to tell them what royalties will cost and let them decide. If they don't want to pay, they really don't want the product.

"I've said, for some time, that my belief is that using music from a legally-acquired commercial CD on a wedding video should come within fair use doctrine "

I agree with you 100% as far as the SHOULD. :) That is, of course, if it's for personal use of the client only. One thing I also wish with respect to distributed material is that there was an easier way to acquire sync rights to commercial recordings. There's an easy way to get re-recording rights, why not sync rights? Independent filmmakers have to go through hell trying to acquire such rights.

With respect to sync rights and the fair use doctrine, here is a thought, which might pass the equitable 'sniff' test if not the statutory and case law (apparently unevolved to this particular issue).

IDEA (Not legal advice).

If the client requests partiuclar music, ask them for two things. First, they bring you an unopened original recording from the artist(s) of their choice, with a sales receipt. Second, they sign a waiver stating that they will not sell copies of the wedding video to anyone, ever. Then, you transfer the client's music from the client's CD to the client's video. Retain the original CD's and receipt in your files, with the signed waiver, and a notation as to the new, unopened recordings.

I do patent and trademark work, no copyrights, so I'm no expert in this area of law. But, I'd be interested to hear Paul T's reaction to this idea.

Dan- You are the one being PAID to use the material. Therefore, it has been re-sold, and the artists and license owners are entitled to their share.

In theory, you aren't even allowed to use copryrighted music for your own projects. Selling videos with copyrighted music is not allowed.

If the client requests partiuclar music, ask them for two things. First, they bring you an unopened original recording from the artist(s) of their choice, with a sales receipt. Second, they sign a waiver stating that they will not sell copies of the wedding video to anyone, ever. Then, you transfer the client's music from the client's CD to the client's video. Retain the original CD's and receipt in your files, with the signed waiver, and a notation as to the new, unopened recordings.

I do patent and trademark work, no copyrights, so I'm no expert in this area of law. But, I'd be interested to hear Paul T's reaction to this idea.
I'm not sure what retaining the CD accomplishes. I think this use constitutes fair use based on the four factor test, of which the one given the most weight is effect on the market for the original (there is, obviously, none).


There is _no_ way to minimize liability in this situation. Using the CDs constitutes copyright infringement. The only question is whether fair use doctrine offers a defense.

This issue needs to be addressed by the copyright holders and their agents. I was not aware that ASCAP did not grant use rights, only performance. It's common to use commerical sound tracks in indie, low-budget and amateur films. It seems like a good market for ASCAP and BMI, and a way for the authors to get more income from their creative works.

I have a project in which I'd like to use Deep Purple's "Smoke on the Water" sound track. In fact, I bought a copy of the CD and transferred it onto my Mac, for editing. It's fair use since it's non-profit for my personal use only, but what if I wanted to enter the film into a few festivals, maybe take it to some commercial level down the road. I sure wish I could write a check to ASCAP to make that use proper, I'd happily do it. But, apparently I can't?

It's fair use since it's non-profit for my personal use only.Neither is the test for fair use. Fair use doctrine is complicated, fact-specific, and judge-determined. The only way anyone can predict whether a specific use will be fair use is by knowing the entire corpus of fair use precedent, and even then a judge may do the opposite. I see statements like this all the time, i.e. "Oh, that's fair use, you don't have to worry." No layperson can make that determination.

I should have said that as...

It's non-infringing use since it's non-commercial for my personal use only. In other words, copying a song from a commerical CD I bought at the record store onto a video that I created for my personal use and enjoyment does not constitute an act of copyright infringement.

That's the problem -- it isn't non-infringing. It is not a defense to copyright infringement to say, "I didn't make any money and/or it's for my own use." It's still infringement and illegal (of course, whether anyone would sue is another question altogether).

Copying a CD for your own use comes within the AHRA. Creating a derivative work by using a CD as a soundtrack, even for your own use, does not come within the AHRA (it might, but it hasn't been litigated, and, given the Congressional intent of the statute, there's a good chance that it wouldn't).

Thanks Paul Tauger and others for answering my questions. Obviously, copyright is a very misunderstood/arguable subject.

I agree that we should pay for the rights to use copyrighted materials in our video production, no matter it is for commercial use or not. The law is the law. Anyway the doctrine of fairuse is very subjective and unclear, and it is ultimately upto the judge to decide.

However, I would hate to see laymen like videographers are sued for copyright infringement, knowing that the music industry is not doing much to help educate the public and to provide a simple way for purchasing the rights.

I think that videographers should team up and push the music industry to provide a clear and simple way for purchasing the rights (performance, sync, mechanical, etc).

The definition of derivative work lies along a gradient as well. Say I host a 60's rock & roll party at my house. I buy a Black Sabbath and Deep Purple CD and I load them in to my CD player. I program it to play intermixed cuts from the two albums in a predetermined sequence. Derivative work? Of course not. How abouut a fade from song to sone without listening to the entire songs. Deriviative work? Now, I hook up a light sequencer to flash multi-colored lights in rythm to the music. Derivative work? Of course not. I create a DVD of people dancing in 60's garb and display it while the music is playing. Deriviatve work? I decide to record the cuts from the two albums onto a single CD burned on my iMac. Derivative work? Onto a DVD? I record separate video and audio tracks onto a single DVD. I play only the pre-recorded Deep Purple cuts. Deriviative work? I play the video and audio simultaneoulsy.

The definition of derivative work lies along a gradient as well. Say I host a 60's rock & roll party at my house. I buy a Black Sabbath and Deep Purple CD and I load them in to my CD player. I program it to play intermixed cuts from the two albums in a predetermined sequence. Derivative work? Of course not. How abouut a fade from song to sone without listening to the entire songs. Deriviative work?Both examples you gave are, as a matter of law, derivative works.

Now, I hook up a light sequencer to flash multi-colored lights in rythm to the music. Derivative work? Of course not. Well, it depends. If the intent is to create a multi-media production then, yes, it's a derivative work.

? I decide to record the cuts from the two albums onto a single CD burned on my iMac. Derivative work? Onto a DVD?No, for either, though you have created copies. The AHRA precludes infringement liability if done for personal use. If done for a commercial purpose, or for other than personal use, you've infringed.

I record separate video and audio tracks onto a single DVD. I play only the pre-recorded Deep Purple cuts. Deriviative work?If you're only playing the audio track, i.e. doing nothing else with it, and it's not publicly performed, then first sale doctrine says you're not infringing any rights.

I play the video and audio simultaneoulsy.It's a derivative work if video and audio are synced. It's just playing audio and video at the same time, within first sale doctrine, if they are not.

Thanks Paul, very interesting.

Have you looked at the iTunes grant language? It differs a bit.

Do you mean the itunes license? No, I haven't seen it. However, a license can grant or withhold whatever rights the licensor wants.