Can I legally purchase and download a song from a legit mp3 site and use it with one copy of a photo montage DVD?

I have read through these forums and I am confused. I understand that I can purchase a song over the internet and everyone that has licence to it gets paid and everyting is alright. Many people are doing this and making a CD with their favorite songs on it. If it is OK to burn the song to a CD, I assume it is OK to transfer it to a tape, DVD or even cut a vinyl record if I have the equipment and I only make one copy for each song that I purchase, so - can I purchase a song and have it play as a photo montage plays? By combing the song with the images, have I somehow changed the song?

Thank you.

No. When you purchase a song online, all you are purchasing is the right to listen to it yourself, not to reuse it in one of your own productions.

Is it the 'production' part that caused the problem? If I make a photo montage for myself can I watch the DVD and be within the rights that I have purchased, or is adding the video the problem?

If you are the only person viewing this, then I believe it falls under personal use. The moment you give this to someone else I believe that crosses the line.

So where or how do we get music for montages? TL

You can check out www.smartsound.com as one starting point. I've noticed that several people - even among the pros - have said they use one version or another of the Smart Sound product line. I think Smart Sound may have purchased or is in some other way affiliated with Music Bakery, which also has been mentioned at dvinfo.

I don't know if it's ever been addressed, but I can't believe any court would find you liable for infringement if it's purely personal use. I am of the opinion that once media is in your home you should be able to do whatever the heck you want with it, including copying it as much as you want to whatever multimedia forms you want. The line should be drawn as soon as you give it to someone else. Of course that's my policy opinion, not necessarily the law. Like I said this area is not well defined.

Thanks Patricia, I will look there, TL

<<<-- Originally posted by Peter Moore : I don't know if it's ever been addressed, but I can't believe any court would find you liable for infringement if it's purely personal use.
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The court will uphold the law and if the copyright owner wants to pursue a judgement against you, you loose. The court has no choice.
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I am of the opinion that once media is in your home you should be able to do whatever the heck you want with it, including copying it as much as you want to whatever multimedia forms you want. The line should be drawn as soon as you give it to someone else. Of course that's my policy opinion, not necessarily the law. Like I said this area is not well defined. -->>>

I think it is well defined, just not widely understood. Just read the license you get with the music. It clearly spells out the license rights you get for your $.

I want to use popular music with photo montages that I make for other people. These will usually be just one copy and viewed in their home (vacation, birthday, etc). I didn't get a clear answer above, but from other posts I think that it is 'changing' the content of the music by adding it to the pictures that creates the problem.

From what I understand so far it goes like this: you must get a license to use copywrited music in a production like the ones I would like to do, however, the people that would do the licensing can't be bothered with small requests like mine, so they will not even respond or work with you. Thousand of people are using popular music in all kinds of small productions, such as wedding videos, home movies, etc. without licensing and I never hear of anyone being prosecuted for it (not that it doesn't happen, I just have never heard of it. Please let me know if you have). I read somewhere that there was an understanding that if you made fewer than 10 copies of a production, the owners of the copywrite would not worry about it. I guess it might be like other laws are still on the books, but are not persued. I think that fornication is illegal in many states, but I don't hear of people being prosecuted for that either, although I would guess that a few people are engaging in it.

I would be glad to pay a reasonable fee to use music, like the mp3 pay sites, but don't know how to do it. Is there a resonable way to stay in compliance with the law, or do the the people that do the licensing just not care enough to provide a way. If they don't care to provide a reasonable solution, I would hope they would also not care enough to prosecute.

Is there a practical solution to this?

As a total amateur who will never face this issue, but who still prefers to buy fully licensed music, even if only for home video, here's the way I look at it: if someone came across a video I made, cut two or three minutes of it into his/her product and distributed it to 10 people without attribution or payment, let alone my permission, would I mind? You know what, even as a lousy amateur, I probably would. I might not mind if it were for one person's use - if I somehow found out about it, I might even be flattered, depending on what use was made of it, but I might also take umbrage, depending on the circumstances. I would probably take the most umbrage if my work were being used for a purpose which I opposed or to make a profit for someone else off my unpaid labor.

Yes, they will come after you. Yes, there is a story in DV Magazine a few months back about a wedding videographer being shut down for using copyrighted music. Do a search under Paul Tauger here on the board for LONG threads about this subject.

There is a solution to your problem. It's called "Royalty free" or "Needle drop" music. You buy the library, and depending on the license, you get to use it in different ways. Or go to www.freeplaymusic.com to get a taste of what can be done.

You are an artist now. Do unto other artists as you would have them do unto you.

"I think it is well defined, just not widely understood. Just read the license you get with the music. It clearly spells out the license rights you get for your $."

First of all, I've never seen a license come along with my CDs, have you?

"The court will uphold the law and if the copyright owner wants to pursue a judgement against you, you loose. The court has no choice."

That's also not entirely true. Fair use is a very fact-based inquiry. If copying inside the home for personal or educational use, even in video projects, and never distributing it to everyone is a fair use, which I believe it is but which, to my knowledge, has never been addressed, then there would be no liability. You wouldn't "loose" you'd "win." The only legal barrier to private, personal copying is the DMCA, which fortunately doesn't cover CDs. Once copies are given to anyone else, of course, that's when you lose.

I have looked at this music and even have a copy of SmartSounds. It is very nice, but not what I am looking for. I'm sure that you have been driving in your car and heard an old song come on the radio that took you back to a different time. Music has a way of bringing back so many rich memories of a time, place and feeling. When people look at a photo montage the music is what creates the emotion, not the pictures. Although the soundtracks from places like www.freeplaymusic can create a mood, it is not the same as the song that brings back the strong memories.

Patricia Kim said, "if someone came across a video I made, cut two or three minutes of it into his/her product and distributed it to 10 people without attribution or payment, let alone my permission, would I mind? You know what, even as a lousy amateur, I probably would." I understand this, the problem I have is that the songs I want to use have been licensed and paid for by millions of people and every radio station in the country. They sit on the front rooms and automobiles of millions of people. They are available for purchase by me in record stores and on the internet, yet even when I purchase them there is no way for me to use them in my video. I want to pay a reasonable amount for them. I want the artist to get paid. I want to buy the rights to use the music in my video, but there doesn't seem to be a way.

Richard Alvarez said, "You are an artist now. Do unto other artists as you would have them do unto you." As an artist, I would love to have people begging me to pay for and use my work. That is what I am doing to them. It seem that they don't care enough to make it available.

Is there a solution to this problem? I want to be able to use popular music in my videos, 'the' song that everyone hears on the radio, owns a CD, and brings back the emotion and memories with their pictures.

Lloyd, you are facing the issue that many of us face. I, too, make video montages for all sorts of things: swim team, soccer team, basketball team, and some really are just for personal use -- that will not even be seen outside my family.

Using copyrighted songs for your video montages is the easy way out. Yes, they certainly conjure up emotions and images like no other type of music could, but it is just not legal if you're going to distribute it, even to one person.

Last year, someone on our swim team put together a montage, and the background music was several popular songs picked out by the kids. Everyone loved it. Everyone wanted to buy a copy. The decision was made to distribute the montage at a nominal fee -- $10. The only problem was, due to fear of litigation, the montage was only made available with no music. Have you ever watched a photo montage with no music? Boring. Now, the odds of the swim team being caught really are quite small. But if they were caught, is it really worth the consequenses? Not in the least. I sincerely doubt that the arguments of "hey, it was just personal use", or "we are a non-profit organization" or "I bought an equal number of licenses for each video sold" will hold any water. Besides, do you even want to be having that conversation?!?

But you're still left with the delimma, as I was this year when I was put in charge of the swim team video: how do I make this interesting and fun and pull out the emotions that I want to without using popular music? I have chosen the smartsound route. Everyone who watches this video comments on the professionalism, and the music does a very good job of catching the mood. Using smartsound, I adjust the music to the length that I want rather than adjusting the montage to the length of the song. You'll find several smartsound selections that sound remarkably similar to popular music out there, and can give the same feel that you're looking for. I'll admit, it is harder -- you may have to do a lot of searching and tweaking on the selection to get what you want.

All that being said, I've created montages with copyrighted music before, but *only* if it is truly for my own personal use (e.g., I am creating one right now for my daughter's 16th birthday -- it will only be viewed by my immediate family).

I'd say your chances of getting caught are small, but the penalty if you are caught is just too high. Think about this: let's say you get well known in your community for doing this type of work, and you build up a nice list of clientele. As your competitor in the same city, using only royalty-free music in my montages and therefore at an arguably competitive disadvantage, I might alert the authorities to what you're doing so that the playing field is level. It's just not worth the trouble.

Last night I followed Richard Alvarez' suggestion and looked up other threads on this issue using Paul Tauger's name as the search key. Didn't have time to read all of them, but if anyone has any doubts about this mattering to people who created and own the rights to their music, I think the thread featuring Douglas Spotted Eagle's views - he who has both won Grammys and had his music used without permission - should be of interest. My interpretation of what he said is that he would also like to see a way that people can pay for using his music for their videos, but until that happens, it's theft.

I don't know if it's ever been addressed, but I can't believe any court would find you liable for infringement if it's purely personal use. I am of the opinion that once media is in your home you should be able to do whatever the heck you want with it, including copying it as much as you want to whatever multimedia forms you want. The line should be drawn as soon as you give it to someone else. Of course that's my policy opinion, not necessarily the law. Like I said this area is not well defined.
There's nothing ill-defined about the law at all. The AHRA allows making copies of music for personal use (or, more accurately, precludes infringement liability). Note that personal use doesn not include "public performance," which means playing it outside of your immediate family and circle of friends.
I want to use popular music with photo montages that I make for other people.You cannot do this legally. The AHRA does not permit making copies for other people. Going back to the first comment, what is ill-defined in the AHRA is whether creating a derivative work by using music as a video soundtrack comes within the liability preclusion of the statute.
I didn't get a clear answer above, but from other posts I think that it is 'changing' the content of the music by adding it to the pictures that creates the problem.There are at least two problems:
1. Making copies for other people falls outside the AHRA.
2. Preparing derivative works falls outside the AHRA.
That said, my personal opinion (which is NOT to be relied upon -- you're not my client, and I'm not providing you legal advice) is that, if the CD is lawfully acquired by the party for whom you're making the tape, it _should_ be considered Fair Use. However, no court has ruled on it, and fair use is only a defense to infringement, meaning you won't know whether I'm right or not until you get sued.
I read somewhere that there was an understanding that if you made fewer than 10 copies of a production, the owners of the copywrite would not worry about it. Completely wrong. When I sue for infringement on behalf of my clients, it is generally because there is a sound business reason for doing so, e.g. sending a message to other infringers, preventing something from falling into the public domain, etc. Statutory damages for infringement of a registered work can be as high as $150,000.
I guess it might be like other laws are still on the books, but are not persued. I think that fornication is illegal in many states, but I don't hear of people being prosecuted for that either, although I would guess that a few people are engaging in it.
It's not a good idea to guess about these things and, in this instance, your guess is wrong. High schools have been sued for unlicensed performances of plays. Ministers have been sued for making copies of hymns for their choirs. As I said, if there is a sound business reason to pursue an infringement, the rights owner will do so. As for fornication being illegal, there may or may not still be blue laws on the books -- they are, however, clearly unconstitutional. Copyright law, on the other hand, is NOT unconstitutional, and has been tested many times.
Is there a resonable way to stay in compliance with the law, or do the the people that do the licensing just not care enough to provide a way.[/.quote]Sure. Just write to the rights owner and request a license. There are a number of posters to dvinfo.net who have done just that. You may or may not get permission, but evidently quite a few people do. Your other option is to decide to take the risk of prosecution and do it without a license. Only you can decide whether it makes business sense to undertake the risk. I will say this, though -- it's clear that you lack sufficient information to effectively evaluate the risk.
[quote]That's also not entirely true. Fair use is a very fact-based inquiry. If copying inside the home for personal or educational use, even in video projects, and never distributing it to everyone is a fair use, which I believe it is but which, to my knowledge, has never been addressed, then there would be no liability. You wouldn't "loose" you'd "win." The only legal barrier to private, personal copying is the DMCA, which fortunately doesn't cover CDs. Once copies are given to anyone else, of course, that's when you lose.Great explanation. One thing, though -- I don't believe the DMCA exempts CDs. Rather, most CDs are not copy-protected so the DMCA doesn't apply. The interesting question, though, is whether the DMCA would apply to copy-protected CDs, of which there are more and more. The DMCA provides that it does not interfere with fair use, and the AHRA, while not a fair use doctrine per se, is clearly related. Fortunately, Congress has woken up to the potential conflict and there is legislation pending to correct it.
the problem I have is that the songs I want to use have been licensed and paid for by millions of people and every radio station in the country. Yes . . . licensed by radio stations for public performance through BMI/ASCAP. _Not_ licensed for copying and preparation of derivative works. If your argument is, "the record companies have already made enough," that's contrary to Article I, Section 8 of the Constitution which expressly reserves EXCLUSIVE rights to protected works to the authors. This includes the right to withhold use, as well as the right to license it.
sincerely doubt that the arguments of "hey, it was just personal use", or "we are a non-profit organization" or "I bought an equal number of licenses for each video sold" will hold any water.Exactly right -- see what I wrote about high schools and churches.
think the thread featuring Douglas Spotted Eagle's views - he who has both won Grammys and had his music used without permission - should be of interest. My interpretation of what he said is that he would also like to see a way that people can pay for using his music for their videos, but until that happens, it's theft.Also exactly right. As I recall, I had a technical disagreement with Douglas about fair use, but hypertechnicalities aside, he was spot on.

Taking off my lawyer hat for a moment, and putting on my videographer hat, this is something I also face with my videos. I do travel videos, and I'm preparing to offer them commercially -- I already have a public website with trailers that are available to the public. My solution to music involves multiple sources:

1. Smartsound -- as other posters have indicated, these are licensed for unlimited use, royalty free. My production company trailer (or whatever it's called) uses Smartsound.

2. True public domain music -- I frequently record itinerant musicians in the field playing folk music (I've got an India video I'm going to release that uses this exclusively). Since the music is public domain and, presumptively, the particular musicians I'm using haven't recorded their performance, there are no copyright issues.

3. Electronic performances of classical music -- There are programs that can scan sheet music and produce a MIDI file. I have a few Emu Proteuses (Proteii?), which are sophisticated and convincing sample players (you can buy them on eBay for as little as $75). With judicious sound processing, some manually-applied fixes, and a little reverb, I can get a full orchestration of virtually any classical piece with little effort and at no cost. The only concern is to _not_ use copyright-protected sheet music arrangements.

4. Licensed music -- from time to time, I'll pick up CDs locally when I'm travelling. I haven't done this yet, but if I want to use a piece from one of these CDs (I'm thinking specifically of a Sicilian mandolin orchestra which I liked), I'll write them and ask if I can purchase a license.

One of the biggest factors in facing litigation is that you have to pay to defend yourself. You cannot find an attorney who will take it on speculation because you won't win anything of monetary value if you did win. So you can spend, say, $200 and hour for a low-priced litigation attorney with copyright experience (very low price for one BTW) and just to defend yourself.

Can you afford to play the game in that case? You have to defend yourself or they win by default. They'll probably win anyway.

For us professionals, that seems like very expensive music.

Smartsound and the thousands of royalty-free and needle-drop music suppliers out there have every genre of music there is. Some quite good. Many priced a quite low prices.

That said, what you said points up a possible business opportunity. Obtaining full license rights to music and selling a license to we small-time users.

I've obtained a one-time use license from Inner Circle for use of 'Bad Boys' in a police video and a one-time license for the use of 'Proud to be an American' for use in another Police Video right after 9-11. Cost less than $100 per use in total.

"There's nothing ill-defined about the law at all. The AHRA allows making copies of music for personal use (or, more accurately, precludes infringement liability). Note that personal use doesn not include "public performance," which means playing it outside of your immediate family and circle of friends."

But Paul, wouldn't you agree that it is hardly settled that the AHRA protects you from making a copy of music and using it in a derivative multimedia work (regardless of whether you keep it personal or not). I know you've said before you think it's a fair use, and I agree, but is there precedent for that?

It seems to me, the AHRA was meant to let people make first generation copies of DATs and CDs, not make photo montages. Besides, in the Diamond Rio case the court said that computers were not covered by the AHRA. That's a double-edged sword. No, computer manufacturers don't need to put in serial copy management, but that also means someone who uses a computer to make a copy isn't protected by the AHRA. The court did say making a personal backup to an MP3 player is a fair use, but does that extend to using it in derivative multimedia productions, even for purely personal use?

Again, probably fair use, but can we say for sure?

But Paul, wouldn't you agree that it is hardly settled that the AHRA protects you from making a copy of music and using it in a derivative multimedia work (regardless of whether you keep it personal or not). I know you've said before you think it's a fair use, and I agree, but is there precedent for that?
No, I wouldn't. The AHRA addresses copying, which is one of the enumerated rights reserved to copyright owners. Preparing a derivative work is a separate enumerated right and is not the subject of the AHRA.

The court did say making a personal backup to an MP3 player is a fair use, but does that extend to using it in derivative multimedia productions, even for purely personal use?

Again, probably fair use, but can we say for sure?As I said, they are different enumerated rights, one of which is the subject of the AHRA, the other isn't, so, no, it does not apply to producing derivative works. Personally, I think using a legitimately-acquired CD for the soundtrack of a video for personal use and limited commercial uses, e.g. wedding videos, is probably fair use and, should I ever get sued for something like that, that would be one of the bases for my defense. However, fair use doctrine is different from, and only peripherally-related to, the AHRA.

Right that's exactly what I thought. I think I misunderstood your response earlier. It seemed like you were saying the AHRA would let you copy as much as you wanted in whatever multimedia form you wanted, and since computers aren't even covered by it there'd have to be something else (fair use, etc.) that would protect you. I would be very interested to see how such a personal use case you mention would turn out.

I use royalty-free music exclusively.

But months ago, I came across this wedding videographer website, and I forgot whether it was in my area, or in another state, but this guy was playing the hit song from the movie "Ghost" (Oh my love, my darling...) right out of the CD, as the background music for his web page. Talk about in-your-face violation.

Even if he purchased a 500-time license or whatever from HFA, it must ran out already.

If people are doing that, I seriously doubt there is really any consequence. As for me personally, I don't take that kind of chance.

The thing is I forgot where this site is or how to get there, I will try to find it if I have time. At the time, I seriously thought of reporting this guy, but it was before I found you people.

Who was it in this thread who said he will report somebody to even the playing field? Will see if I can find this fellow.

Thank you everyone for the great information. I have learned a lot, but have more questions and want to clarify a few points.

1. Fair Use: Does fair use mean making a copy of a legitimately purchased song and only using it with immediate family and friends? If I don’t have the skill or equipment, can I have someone else make the copy for me as long as I still use it with immediate family and friends? Can I pay the person who makes the copy and still fall under the fair use definition?

2. Derivative Work - Synchronization: I am confused by this whole thing. It is quite easy to buy a license to play music at a place of business or other uses like that. You can also buy a license to play music on your website. A website has images that are shown with the music and are often synchronized with the music, yet it appears that these licenses (not sync licenses) cover this use. You can also legally buy and download music from sites like itunes. Their website says “You can burn songs onto an unlimited number of CDs for your personal use, listen to songs on an unlimited number of iPods and play songs on up to three Macintosh computers or Windows PCs.” When I listen to songs on my computer using Windows Media Player I can play these songs with ‘visualizations’ which are images that are synchronized with the music. How are websites and the players with synchronized images different that using the music with photo montages? Does fair use apply to derivative works?

Thank you.

Repeat after me:

"I will only ask simple questions for the next few months!" :-)))

Are there any simple copyright questions? :)

Finally, a simple question. The answer is, "NO!"

Oh, simple question, where do you report competing videographer violating copyright blantently and gaining an unfair advantage, and what chances you would simply to be told to go away?

We are talking about popular songs.

1. Fair Use: Does fair use mean making a copy of a legitimately purchased song and only using it with immediate family and friends? If I don’t have the skill or equipment, can I have someone else make the copy for me as long as I still use it with immediate family and friends? Can I pay the person who makes the copy and still fall under the fair use definition?What you've described, i.e. making a copy for personal use, comes within the AHRA, not fair use. Fair Use doctrine is a complicated equitable doctrine, meaning _judge-made_ law, that has been codified in the U.S. Copyright Act. Making a copy for personal use probably would _not_ come within Fair Use, though ripping to an MP3 player, making a tape for your car, etc. probably would. The AHRA precludes infringement liability for copyring music for personal use. It does _not_ permit paying someone else to make that copy.

. Derivative Work - Synchronization: I am confused by this whole thing. It is quite easy to buy a license to play music at a place of business or other uses like that. You can also buy a license to play music on your website. A website has images that are shown with the music and are often synchronized with the music, yet it appears that these licenses (not sync licenses) cover this use. You can also legally buy and download music from sites like itunes.
A derivative work, by definition, is one which is based upon, and incorporates a substantial part of, the original. Playing music on a website is not a derivative work per se, though it is a public performance, for which you need a performance license. I don't know what iTunes does, but I'm certain that, whatever license they convey, it does not include the right to prepare derivative works.

Fair use applies to derivative works. What you've described isn't fair use.

Oh, simple question, where do you report competing videographer violating copyright blantently and gaining an unfair advantage, and what chances you would simply to be told to go away?Now, THAT's an interesting question for a couple of reasons. With respect to the infringement, you'd report it to the copyright owner and, if it was critical, e.g. selling counterfeit movies, etc., to the US Attorney General's office and/or the FBI. That's not the interesting part, though. Most states have unfair competition laws that tend to be fairly broad. Here, in California, our unfair business practices act, Cal. Bus. & Prof. Code Sec. 17200 et seq. is so broadly construed as to penalize ANY conduct which is remotely illegal. I'd have to research it more, but it is possible that a videographer who feels his competition has gained an unfair advantage through the illegal use of copyright-protected music, _may_ have an individual cause of action for unfair business practices, i.e. he can sue his competitor on that basis. Unfair competition is, however, civil and criminal, so there is no one to "report" it to except, perhaps, the state attorney general.

Are "unfair competition" laws typically upheld? I am thinking they were typically passed by politicians on behalves of their business contributors, as a basis for the latter to harrass their competitors, all parties fully knowing that they will never stand up in the end. But the purpose is served when the competitors gone bankrupt from defending the thing or capitulate in some way.

Or am I wrong?

Are "unfair competition" laws typically upheld?Absolutely. Most times they are pled along with other causes of action, e.g. copyright or trademark infringement, antitrust, etc., so the remedies are cumulative -- you only get to collect once.

Law, Unfair Competition laws help the consumer in a lot of ways.

The reason is, it is very easy to lie in advertising. But if someone lies too much, their competition find it easy to attack them under the law. Keeps a lot of BS out of print. A lot of BS.

From my point of view, where I've done a few Silicon Valley startups, getting hammered by the competition who lies in their promotions is very unfair. It can cost jobs, and even companies.

Think of it as a kind of Truth in Advertising protection (I know, if you believe all the BS the edit system manufacturers put out, you'd believe you could cut 'Gone with the Wind' on a $200 system!) that is policed by the industry in which the company plays.

Kind of off subject, but say you were to make a wedding video, for instance, and the Bride + Groom request a song to placed on the video, would it be copyright infringement if both you, the videographer, and the receving party both purchased the CD that holds the song. Or even the single. As far as owning the music under a different medium, that would be taken care of. Any reason this would not work?

Ken, this has been covered previously in threads and answered by Paul Tauger. Please do a search so that we avoid duplication.