Hello everyone (and Mr Paul Tauger if you're reading this). I have read through forums where I've found some helpful answers to copyright DV questions (especially answers by Mr Tauger who seems quite generous with his time), though I have not yet come accross an answer regarding this in particular, so here goes...

It seems most editors avoid the whole issue of copyrighted music altogether by just purchasing their own generic catalogs.
I would like to know if an agreement form (scroll dwn) like this, included with the order sheet I'd have clients fill out, would be a good enough safety net for someone like myself to use so that I can legally provide the option for people to use their OWN music (at no extra charge), which they themselves bought, as an alternative to using a track from my very limited generic free-use collection. Any suggestions would be greatly appreciated!

So basically, I would not carry a catalog of copyrighted music. I am trying to position myself as merely the middle-man giving them the option to personalize it in this way with THEIR own music they purchased which they would have to physically hand to me (if that makes a difference). This would be at no extra charge. I'd only charge for the editing work itself, length, # of photos, etc, not the audio track used (incl in price).

Also in addition to what's currently written in this agreement (if it makes a difference):
I would maybe require proof of their purchase of that track/CD.
I would emphasize no ownership attachment to the final product other than maybe "Edited by [my own name or business name]"


THE AGREEMENT:
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
An edited Photo/Video Montage is a work done by artisans. The editor's results are a combination of talent, technology and creativity. [Co name] retains the rights of creativity and style in producing any montage, excluding any and all copyrighted material. [Co name] does NOT guarantee the use or exclusion of any specific visual effect or production technique. It is agreed that rights to exclusive use of all NON-copyrighted video tape footage, audio tracks, music tracks and reproductions there from are reserved by and for [Co name] whether for production, promotional use or otherwise. We encourage you to choose your own music. It is a violation of copyright law for us to provide music that we do not own the rights to. Therefore if you wish to use any copyrighted music you will need to provide us with the original CD or a burned CD copy of the music. Make sure that each CD you submit is in its case. Any music we provide will be instrumental music we possess the rights to. Contracting Party (CP) assumes all responsibility and liability for the legal use of all material, copyrighted or otherwise, to be incorporated in the video; and hereby grants permission for [Co name] to use all materials provided by the client in the production of the Photo/Video Montage ordered herein. CP hereby declares that the purpose of this video is non-commercial and for In Home Use only. Any expectations CP has concerning content, quality, editing, or any other aspect of your montage video must be delineated in writing, attached to this form, and given in advance of production for our review. Your requests will be given all consideration but NO requests are guaranteed to be fulfilled due to the nature of the production process.

We understand and accept, as stated, the conditions and limitations described herein.


Full Name______________________________________

Contracting Party (signed) ___________________________________________ Date ______________

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

This way, I'm only profiting off of the video editing services and not the music.


Is there ANYTHING at all I can do to make this work, either as a SP or LLC/LLLC?

Sorry I know this is alot of questions. Hope someone can help me out with this. Thanks in advance for any help anyone can offer :)

Background:
I am setting up a small, discounted memorial montage video editing service for people on a budget who've lost their beloved pets and also for animal-related non profit organizations (I assume I cannot use copyrighted music for those projects period as that would be "commercial use"?).

I will be sub-contracting out work with video editing STUDENTS for these relatively simple projects to keep prices down and provide a positive work reference for students trying to get a foothold in the workplace. I'm also seeking to partner up with other SMALL, local production companies for additional "premium" service offerings. Starting out as an SP for now, then incorporating into I guess an LLC or LLLC later on.


GA

That is a good thought but won't work. As the producer of the work you are responsible for getting the proper licenses to use the music. You can't push that off onto anyone else.

One way to pass the buck might be to do the editing but deliver the cut piece to the client sans music and have the client insert the music themselves. That could move the issue off your plate and on to theirs. This assumes the client as the technical ability and equipment to insert the music.

Others may have better answers but my understanding is that you can't do that.

It's always amazing how everyone thinks their copyright issue is unique.

Copyright is simple; "If it's not yours and you (or your client) don't have permission to use it then you can't use it."

Buy library music - middle man or not, theft is theft. You're still liable when the lawsuit arrives.

Echoing the others ... when you produce a video program YOU are the creator of a copyrightable work, NOT your client. The client is a customer to whom you are subsequently selling that work. But the work is your creation. If it incorporates within it other copyrighted materials YOU are the one copying those materials and as the producer it is your obligation to insure all proper licenses have been obtained. Having your client sign an agreement to obtain them on your behalf does not absolve you of that obligation. The very best such an agreement might do for you is, after the music owner sues YOU for copyright infringment and wins (and he WILL win), you can turn around and sue the client in hopes you can recover your losses. You might or might not be successful in such a suit - the court might hold the agreement applies but it could also hold that since you are the original wrong-doer in the infringment, you can't pass off your punishment to a third party even if they have agreed to step up to the plate for you and so the agreement is void. It is kind of like getting an agreement from your friend that says you're going to rob a bank and you'll give them half them money if they agree to go to jail on your behalf if you're caught.

The fact the client (or you) purchases a CD of music DOES NOT convey any rights beyond listening to the CD. You may not copy it, you may not broadcast it, you may not play it as music in your bar or office or other public place, you may not act as a DJ and play it at a wedding reception, you may not incorporate it into a video or film, nada. All your purchase licenses is the right to play the CD and listen to the music for your own personal enjoyment (unless you obtain additional licenses and pay the rquired royalties etc). So the fact you have made sure the client owns the CD of the music they want you to use means nothing. Whether it's you or the client who actually buys the disk, any use in the video you're producing requires a valid license ... actually several licenses - a sync license from the music's composers and publisher and a master use license from the record label that published the CD ... and it's your duty to obtain them.

addendum
----------------------
"Commercial Use" doesn't matter .. inclusion of copyrighted music without license is infringment regardles of the disposition of the resulting video, whether it's sold or given away doesn't makes any difference.

Agreed. Long story short, no that contract absolutely would not work. If anything, you're just documenting the fact that you know what you're doing is negligent, and if it came to trial would probably be worse than someone who shows up & pleads "Oops, sorry I didn't know". So there really seems no reason to use it. It won't protect you, and it'll just annoy or scare off potential customers anyway, and one more thing for you to ask they sign. On the other hand, use it if you want I suppose, but I don't think it serves any purpose.

I just stick to Royalty Free buyout music like SmartSounds, Digital Juice, Music Bakery etc. It's a lot simpler. If you look around online long enough, you can find legitimate sources of music that will work with most any type of project. As for top 40 hits, forget about it.

Also, don't go shoving a lot of documents at a potential client, unless you want to run them off. Keep your paperwork to a minimum, just the essentials.

I'll guess OP has read some of the long discussions on this (I'm recalling one in particular ages ago with "Mr. Tauger") and is trying to figure out a way to sneak through the one "possible" loophole that Paul said he'd defend, the Carterphone case Chris posted about suggests, and I contend is viable as an "affirmative defense" in a VERY limited set of circumstances... with the attendant risks.

First, it's not a great idea to "document" this in a contract, nor would it prevent you potentially being part of an expensive defense if the poo hit the rotary oscillator. Of course now you've posted it a public forum, so "ignorance is no excuse", and the cat's out of the bag. Now you try to work the possible loophole at your own risk...

Second, most clients are not going to understand the "agreement", even though (presuming they don't publicly post the end product 15 minutes after you provide it... DOH...) they may de facto abide by it, since most people are going to be using your contemplated product for "private personal use", nothing more, and ideally might like to listen to it simultaneously with some meaningful to them "soundtrack" of music they already have purchased for thier listening pleasure. (Chris touches on this, and it's analogous to the "Carterphone".)

Third, you need to read a recent thread about the potential emotional effects of attaching a specific piece of "audio" to a "visual" playback and contemplate it carefully, particularly in the arena you are thinking of producing...

The problem with trying to "get around" the copyright is that you're still using someone else's end product, and they may or may not find your "use" innocuous or inoffensive... or "non-commercial" if you start making a "big" profit. You haven't "discovered" a way around anything, although you apparently have absorbed the gist of the conversations here, remember there's a strong disagreement as to the conclusions, creating "precedent" (as in case law) is VERY expensive, and you move forward at your on risk...

I just stick to Royalty Free buyout music like SmartSounds, Digital Juice, Music Bakery etc. It's a lot simpler. If you look around online long enough, you can find legitimate sources of music that will work with most any type of project. As for top 40 hits, forget about it.

Also, don't go shoving a lot of documents at a potential client, unless you want to run them off. Keep your paperwork to a minimum, just the essentials.

thanks for the tips :)

I failed to mention in my post that there is a company that's been around for several years and is using this agreement as we speak. That's where I copied it from. That's the only reason I was thinking to myself "hmm, well if THIS guy is doing it, maybe he knows something the other folks don't!". But apparently he/she knows much less :(

In response to a couple replies, I wasn't intent on doing anything illegal, so the fact that I posted this wouldn't have made a difference either way if it (hypothetically) were a legit, legal agreement.

Anyway, I had a feeling this would be the answer. It was worth a shot right? right? Well, worth it to me, since I have virtually nothing to work with in terms of music for getting started in my work.

Oh well, guess I'll continue my endless search looking for free/cheap, nice, non-cheesy, royalty-free music for my projects :-/
*cue sad royalty-free violin music*

GA

I failed to mention in my post that there is a company that's been around for several years and is using this agreement as we speak. That's where I copied it from. That's the only reason I was thinking to myself "hmm, well if THIS guy is doing it, maybe he knows something the other folks don't!". But apparently he/she knows much less :(

In response to a couple replies, I wasn't intent on doing anything illegal, so the fact that I posted this wouldn't have made a difference either way if it (hypothetically) were a legit, legal agreement.

Anyway, I had a feeling this would be the answer. It was worth a shot right? right? Well, worth it to me, since I have virtually nothing to work with in terms of music for getting started in my work.

Oh well, guess I'll continue my endless search looking for free/cheap, nice, non-cheesy, royalty-free music for my projects :-/
*cue sad royalty-free violin music*

GA

The SmartSounds library is pretty much non-cheesy (unless you actually WANT cheesy) and IMHO is very reasonably priced. You can audition tracks online and only purchase licenses you need. Each track is about $20 if purchased as singles and once you buy it you can use it in as many projects as you like going forward - it's a 'buy-out' library, not a 'needle-drop' library. So you build ithe cost of licensing the new music tracks you use in each new project into your rate structure and let your clients pay for the tracks you purchase as you build your library. Once you have the license, you can use the same track in any and all future projects you may do for any of your clients without additional fees, the music is licensed to you, the producer, rather than to the individual project.

Another good source of buy-out music is Magnatunes. A variety of genres and definitely NOT cheesy. Want a medaeval lute track? They're your source.

Thanks Steve! that really helps, since from what I've found there seems to often be some kind or another of little invisible strings attached to those music libraries (well, invisible to me anyway). I will definitely take a serious look at those! :)

Stock20.com is similar. Has some good instrumentals imho. I gotta check out this smartsounds though too. I'm looking for some classic rock style songs for a project if anyone has some pointers. FWIW after you buy a couple songs in a library you can pretty much repeat them in other weddings, so it's a high start up costs that pays off over time. There's an all-piano songs there that's really good.


And I know what you mean about other people doing it, I second shot for a guy near me who I met with & was discussing his business & giving some pointers. He said the same exact policy (They must bring him the cd's) and spoke to me like it was a true law. Even would not begin editing until the bride brought him the cd's, sometimes delaying it for weeks. I wanted to laugh in his face & tell him it's completely illegal anyway so he might as well rip the songs off piratebay anyway but just let it go.

I got an ad for VASST "trakpaks", not sure whether they are any good, but are currently half price, say you can build your own tracks with little or no talent (well, they put it more tactfully...). Just an FYI, I know their infinicam software has worked great for me, so I don't mind mentioning them!

We use Smartsound whenever we want royalty-free music & not only is the music non-cheesey but it sounds like real musicians rather than a computer. It's more than just regular royalty-free music as you can customise the mix, length, bpm etc of the track to match it to your video. Royalty Free Music for Productions (http://www.smartsound.com/) Now that you can purchase music by the track instead of a whole album at a time it's even better value.

Although if you check the Smartsound license they mention it being considered royalty free in US & Canada, which does raise the question about the other territories.

Although if you check the Smartsound license they mention it being considered royalty free in US & Canada, which does raise the question about the other territories. Apparently some countries don't allow for 'royalty-free' licenses and require fees to be paid to their performance licensing organizations regardless or place limitations on their extent. If that's the case in your country you'd have to deal with it with any music you use, not just SmartSounds.

Just for info - the same thing is valid here in the UK - I'm not sure if there is a direct equivalent in the US, but we also have a license requirement when a copyright work is dubbed to a new new medium - so a purchased CD (clearly labelled for domestic use only on the edge) needs permission to be copied to the editing system and then transferred to the final product anyway. So as the client doesn't do this 'dirty deed', and you do, then if payments are due, you can't duck it because they told you to. As far as I'm aware, that's not actually a defence in any legal issue is it? If somebody asks you to do something illegal, a piece of paper saying they will be responsible and you won't, just doesn't work. OJ Simpson would have tried that one, I'm sure!

Also just for info here in the UK we generally wouldn't need to even try to use such a clause as we can licence any music for wedding videos & similar (which I guess the OP has in mind) for just a few pounds per disk. We don't need to keep track of what we use just abide by the rules & buy the appropriate PPL & PRS Limited Manufacture licence depending on the number of disks & amount of music used Limited Manufacture Licence (LM) (http://www.prsformusic.com/users/recordedmedia/cdsandvinyl/Pages/LimitedManufactureLicence(LM).aspx) They still haven't sorted out anything similar for using the same finished video online but when delivering physical product on DVD, Blu-ray etc it's simple & affordable.

Sorry everyone, haven't had much time to respond here, but thank you all who responded with helpful info and suggestions! :)

And I know what you mean about other people doing it, I second shot for a guy near me who I met with & was discussing his business & giving some pointers. He said the same exact policy (They must bring him the cd's) and spoke to me like it was a true law. Even would not begin editing until the bride brought him the cd's, sometimes delaying it for weeks. I wanted to laugh in his face & tell him it's completely illegal anyway so he might as well rip the songs off piratebay anyway but just let it go.

I'm glad to know I wasn't the only clueless editor with this belief (or wish, to be more accurate) ;-p

Greg

QUESTION 1: Would the following language work?

If the contracting party desires to provide their own music for use in the video montage it is the responsibility of the contracting party to secure proper copyright permission for such use.

Description of sound recording ______________________________________________

Please check one:

[ ] I own all necessary copyrights and grant non-exclusive use of the sound recording
described above for use in the video montage.

[ ] I have obtained all necessary permissions from the copyright owner for the use of
the sound recording described above in the video montage.

[ ] All necessary rights for the use of the above sound recording in the video montage
belong to the public domain.

By signing below the contracting party confirms that the above information is correct and that the provided music may be legally used according to United States copyright law in the video montage.

Full Name ________________________________________
Contracting party (signed) ____________________________ date ___/ ___ / ___

QUESTION 2: To what extent do I need to verify the information above is correct?

If the provided music contains a copyright notice, it seems reasonable to check that the contracting party also has a note from the copyright holder granting permission to use the music. However, if the music is provided on media with no copyright notice, is the above document enough?

There are several flaws in that approach but the most fundamental one is that as the program's producer the buck stops with you. You are the individual causing the copy to be made when you bring the music into your project timeline and place it alongside the images. As the one doing the copying, you are the one doing the infringing if the proper licenses or permissions haven't been obtained. You client cannot obtain licenses on your behalf or transfer any licenses that he has obtained to a third party such as youself. Then when you deliver the program to your client you are selling the copy that you have made to him and it becomes copying for a commercial purpose, more akin to commercial piracy than simply distributing copies.

What would happen in the event the copyright owner discovered an unlicensed use of their property and decided to make an issue of it, if you relied on a document such as you propose, is that you, not your client, would be the one to be sued. After you have fought it and lost (and you would lose) and you have lost your business assets, home, etc, you might then be able to turn around and sue your client to try to recover your losses. That could go a couple of ways ... one is that the court would hold that a contract to perform an illegal act is invalid on its face and toss the whole thing out leaving you holding the bag. The other is they rule that you have no course of action under the doctrine of "clean hands" - you must come into court having done no wrong yourself in order to prevail, for example you can't sue to recover some money you gave a dealer in advance for the purchase of some weed which he then failed to deliver - and your case against your client is dismissed. Or they may allow that the contract is valid, ruling in your favour that the client had indemnified you against loss and then your client says "Lots o luck collecting, chump" and walks away. Your chances of ever being made whole again are slim to none.

As an aside, if the person putting the show together is not the program's producer but an editor who has been hired by the producer or client to make a work for hire, it doesn't let him off the hook The producer as the person creating the final program AND his employee the editor are equally liable for the infringment - the copyright owner could go after either one separately or both of them together. So saying I'm only a hired editor doing what I'm told won't help.

Dear Steve, Does your reply addresses the contract in the original post or my post above?

The modified language I suggested above is modeled after the agreements used at printing shops for copying things like books. The print shop is satisfied when the customer either states they are the owner of the copyright or provides a note giving permission and terms from the current copyright holder. If such a statement from the customer provides sufficient legal protection for the print shop and the employees of that print shop, wouldn't a similar statement from the customer about a sound recording be sufficient for a video company and the employees of that video company to safely copy the music onto the DVD?

Eric,

Steve is addressing the updated version.

You can't write a contract that indemnifies yourself from copyright issues.

As a producer you are responsible - period.

Dear Steve, Does your reply addresses the contract in the original post or my post above?

The modified language I suggested above is modeled after the agreements used at printing shops for copying things like books. The print shop is satisfied when the customer either states they are the owner of the copyright or provides a note giving permission and terms from the current copyright holder. If such a statement from the customer provides sufficient legal protection for the print shop and the employees of that print shop, wouldn't a similar statement from the customer about a sound recording be sufficient for a video company and the employees of that video company to safely copy the music onto the DVD?

The updated version.

Note that placing music into a film/video soundtrack is not simple copying such as when a print shop copies a book or magazine article. When you place music into a video in juxtaposition to the images you are copying for the purpose of creating what is known as a derivative work - the video is a separate copyrightable work that is based in part on the music - and different rules apply. It's not the same thing as Kinko's making a copy of a series of pages from a magazine, or TIVO'ing a program on TV to view later or even burning a copy of a music CD.

Thanks for clarifying, Steve.

I think I understand the differences between derivative works and reproductions of the original and would agree a different type of license is required in each case.

If I understand what you are saying, then using client provided music in a video montage based on a written statement provided by the client that the music has been properly licensed is quite dangerous. Similarly, if music purchased from a royalty free music distributor turns out not to be royalty free after all, it appears anyone who inadvertently used that music in a derivative work could end up in court for copyright infringement. I find this very interesting.

Damn. Too bad that wouldn't have worked. And here I was getting all excited after reading Eric's post just now. :-/
Yah, thank you Steve for that detailed clarification, helps me understand what you said before even more.
Eric gets an E for effort ;-p

Similarly, if music purchased from a royalty free music distributor turns out not to be royalty free after all, it appears anyone who inadvertently used that music in a derivative work could end up in court for copyright infringement. I find this very interesting.

You have a good point there Eric.
Has anyone ever come across this issue before (reading about it or it happening to you personally)?

I would ASSUME that the major players that have been around for several years would make sure 100% of their stock music would be 100% legal, but I'd hate to limit myself to the big guys because there's also occasional nice stuff that's made available up on smaller cheap/free loop & fx sites made by the company or by individual users uploading their (or supposedly their) content like soundsnap.com.

Steve: what are your thoughts on this?

Eric,

Steve is addressing the updated version.

You can't write a contract that indemnifies yourself from copyright issues.

As a producer you are responsible - period.

This is a niggling point, but I think you meant "immunize" rather than "indemnify."

You certainly can write a contract that indemnifies you. That is basically what liability insurance does. "Indemnity" shifts who has to come up with the money for the judgment or settlement and the legal expenses of defending the claim. Basically, an indemnity provision can do two things: (a) allow you to turn over the defense and payment to somebody else (insurance or your clients, say) and (b) allows you to get reimbursed for paying those things if the others didn't come up with the money in time for you to avoid having to pay out of your pocket. If you were going to write an "indemnity" provision into the contract, you basically would be telling the prospective clients that you will incorporate their choice of music into their video as long as they agree to pay your costs if you get sued for using the recordings they want.

Whether this kind of provision would be good for client relations is a different question, as is the question of how much it could actually help you if somebody decided to sue you or get you arrested for criminal misappropriation of intellectual property.

You can do whatever you want, use whatever you want, under fair use principles. The legal issues come in with distribution. I don't know specifically how you are selling your media but if it's for personal use then you can pretty much sidestep all potential legal problems. You only get into hot water as the producer if it's for a tv show or something that will air over public or certain private channels..

so I'm not sure why everyone is so paranoid about you holding all liability, you absolutely don't hold all liability. The distribution parnter would get sued, not you. But then they would sue you, and if you have a contract stipulating that you were not handling music rights, then you are good. You're just a content producer, which is only half of the industry. Content distribution is the other half.

Jad: not even CLOSE to being accurate! It's exactly this type of misinformation that keeps these discussions popping up EVERY MONTH on here...

There is the law and there is reality, and fair use comes down to intentions. If you intend to make money off of selling DVDs then you better own the copyright to whatever's on them. You just have to word your contract differently to state those intentions. You are providing video services not video products..

Do you run around with release forms for people at the wedding? Do you blur out all the visible brands? Then the music copyright is the least of your concerns because you technically can't even show the picture. And how do you know that those royalty free libraries actually have those tracks licensed? Are you verifying their paperwork with the author, are you responsible for all of that?

Weddings are doc, fair use holds. Yes it's a hotly contested issue and yes you can find lawyers who will defend both sides. When all else fails, use common sense. YouTube - Broadcast Yourself. (http://www.youtube.com) exists and continues to exist. This shouldn't be possible according to copyright law.

I've wondered about that fair-use thing myself but it seems it only applies to things like journalism and other non-commercial "reporting", and other things I'm sure I'll understand better once I get around to searching around the forum for threads on this sec. 107 of the copyright law (title 17, U. S. Code)
U.S. Copyright Office - Fair Use (http://www.copyright.gov/fls/fl102.html)
DVD Ripping Guide (http://fairusetube.org/dvd-ripping-guide)

In the meantime, although I'm tempted to seriously consider what Jad is saying, I'm still too wary of this.

Although it makes me wonder why all those people in that famous viral wedding dance video never got sued for using copyrighted music. Among countless other examples on the internet one could give.

*sigh* 3 thread pages later and I'm still clueless. Oh well. ;-p

G

There is the law and there is reality, and fair use comes down to intentions. If you intend to make money off of selling DVDs then you better own the copyright to whatever's on them. You just have to word your contract differently to state those intentions. You are providing video services not video products..

No. Wrong. Copyright infringement does NOT require the intent to profit. In fact, all the "I am not profiting from this in any way" B.S. "disclaimers" that have popped up on YouTube do NOTHING in ANY legal sense and are the result of "The Internets" telling people that Fair Use includes posting songs with their World of Warcraft videos online.

"Fair use" is a both a technical term and a phrase that gets bantered in discussions to the point that it seems to be turning into a generic term. As seems to be the case here, people use "fair use" to refer to everything that is, at one end of the spectrum, classified as parodies and appropriately minimal quotation in scholarly/technical/professional discussion and teaching. At the other end of the usage spectrum, it seems to get used by some people to cover personal uses such as photocopying cookbook recipes for a personal collection, copying your purchased CDs to your iPod, adding music to saved games, recording tv programs to your DVR for later viewing/re-viewing, etc. So, if I make a video of my own wedding for my use and I own a CD of the music I want, I can use it in my private video without violating copyright, and some people will call that "fair use."

It is an entirely different kettle of wriggling legal terminology when we get to distribution, whether via the net, DVDs to be played by others, and etc.

Regardless, none of that use or misuse of the terminology has anything to do with what is being discussed here. Nor does it have anything to do with risk assessment, which seems to be the point of some comments.

Risk assessment is saying: "what are the chances anybody is going to do anything about it if I use this recorded music in this DVD of a wedding video or use it in my viral You-Tube clip?" A lot of this kind of stuff is simply too trivial for most copyright owners to care about. Or, the use might be apparent (as with that viral You-Tube clip) but the copyright owner might see him/her/itself benefiting more than being harmed. Or, maybe does not care. Or any of many other seemingly arbitrary reasons for acting or not. None of this makes it any more or less legal, nor does the fact that you are not immediately struck down by lighting make it legal, either.

Confusing risk assessment with legality leads to the kind of unfortunate discussions that so provoke Shaun and move us away from the original question. The original question is whether it is possible to protect yourself from possible copyright infringement issues by putting some kind of provision in your contracts with your wedding clients? It does not help to say that you might find a lawyer to argue that you didn't violate the copyright. When a lawyer tells you that you have an argument, that means very high legal fees. The point we were talking about is whether or not you can come up with a contract provision that allows you to avoid having to participate in the argument in the first place. So far, the answer is pretty clearly, "no."

Well said, Jay.

I can see I'm unearthing old repetitive discussions here, but echoing what Jad said, intent DOES seem to come into legal play here, at least according to Standford Law School Center, but that intent does need to show in certain ways, and even then you're still not 100% protected as there's so much potential grey area:
Stanford Copyright & Fair Use - Copyright Protection: What It Is, How It Works (http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter0/0-b.html#3)
http://cyberlaw.stanford.edu/fair-use-project

[Excerpt]
"Often, it's difficult to know whether a court will consider a proposed use to be fair. The fair use statute requires the courts to consider the following questions in deciding this issue:

Is it a competitive use? (In other words, if the use potentially affects the sales of the copied material, it's usually not fair.)

How much material was taken compared to the entire work of which the material was a part? (The more someone takes, the less likely it is that the use is fair.)

How was the material used? Is it a transformative use? (If the material was used to help create something new it is more likely to be considered a fair use that if it is merely copied verbatim into another work.

Criticism, comment, news reporting, research, scholarship and non-profit educational uses are most likely to be judged fair uses. Uses motivated primarily by a desire for a commercial gain are less likely to be fair use).

As a general rule, if you are using a small portion of somebody else's work in a non-competitive way and the purpose for your use is to benefit the public, you're on pretty safe ground. On the other hand, if you take large portions of someone else's expression for your own purely commercial reasons, the rule usually won't apply."

And here's a transcript from NPR interview with the director of The Fair Use Project at Stanford Law School's Center. Also examples in both below of how the fair-use/copyright/DMCA laws on BOTH sides are often ignored or mis-used. It's still a mess:
Stanford Center Advocates for Fair Use on Web : NPR (http://www.npr.org/templates/story/story.php?storyId=10040628)
Fair Use Principles for User Generated Video Content | Electronic Frontier Foundation (http://www.eff.org/issues/ip-and-free-speech/fair-use-principles-usergen)

Excerpt from EFF:
"Creators naturally quote from and build upon the media that makes up our culture, yielding new works that comment on, parody, satirize, criticize, and pay tribute to the expressive works that have come before. These forms of free expression are among those protected by the fair use doctrine.

Copyright owners are within their rights to pursue nontransformative verbatim copying of their copyrighted materials online. However, where copyrighted materials are employed for purposes of comment, criticism, reporting, parody, satire, or scholarship, or as the raw material for other kinds of creative and transformative works, the resulting work will likely fall within the bounds of fair use.

But a commitment to accommodating "fair use" alone is not enough. Because the precise contours of the fair use doctrine can be difficult for non-lawyers to discern, creators, service providers, and copyright owners alike will benefit from a more easily understood and objectively ascertainable standard."


There seems to be alot of grey-area (hence the careful wording of "usually", "likely", "generally", etc) that's only determined in the court if/when you get sued (such as someone like myself who's not an educational organization/journalist, am using the WHOLE song, yet my work falls under the "commentary" or whatnot fair-use catagory...kinda 50/50 with that one, not worth taking the chance).

Lots of stories everywhere in the media of the little guy getting scary threatening "Cease and desist" letters from the music co's for using their work and YET a select few of these cases where the situations were legitimately fair-use, and they sought help from non-profit sources (like Standford's), the big guy has withdrawn the threat, admitted to mistake and backed off.

The only reason I haven't taken the free-use stance with my work yet is because it's not 100% defined in the public realm as there's too many variables and alot regarding a work's fair-use status is determined on a case-by-case basis in court, which is exactly where I DON'T want to end up. Seems large record labels toss around their threat letters assuming everyone using their copyrighted material is evil simply because they don't have the time nor desire to investigate each and every situation. And although one CAN fight back for little to no cost, it's doubtfully going to be worth the time for the average small-time editor/producer.

If there's ANY risk of me actually being even partially legitimately in the wrong legally producing videos using copyrighted music that would fall under that broad "parody"/"commentary"/"reporting" etc category then I will avoid it all together, even though it seems alot of what I want to do as a visual artist (aside from the pet memorial thing) would GENERALLY (there's that scary word again) fall under one of the several fair-use categories.


I really hope I can find some answers here, cause I've spent so much time researching Fair-Use, and I STILL can't tell whether or not that light at the end of this tunnel would be my creative freedom or an oncoming train :-/

G

There is no contract to get you out of it. The best way to think of copyright infirngement is if a copyright holder (ie. Rolling Stones, Aerosmith, Pearl Jam, Kanye West etc ANYBODY) could charge you money (ie charge you for the wedding dvd, the youtube clip, the goofing around with friends video & you downloaded the song from amazon for $.99), then IT IS COPYRIGHT INFRINGEMENT.


No contract, loophole, non-profit etc clause will get you out of it.

So I think Gregory is trying to get his head around this whole "what can I and what can't I really do" thing that we all sit in bed at night and contemplate. I don't think he is*
intentionally trying to break any laws or cheat anyone out of their music royalties, none of us are.

Weather legalities is looked at, the music industries are not looking at this industry seriously. I have "now had" a client that wanted to use a very specific song from 1970 (not a top 40 ever) in their video. Being new to weddings (I shoot mostly commercial work) I did the respectful thing and called Sony ATV, filled our their sync license form and submitted it. A month later I get a call from them wanting $1,000 for the client to able to use the video online for 30 day (yes, only one fricken month) and with that agreement, $100 per 10 DVDs additional.

Totally outrageous!

So here are uncouple of questions for you out there:

1. Is there a difference between using a downloaded MP3 version of the song as an audio track, or cording the couple dancing and getting the song/audio as incidental background music?

2. Does recording the song as incidental background still requirer a sync license?

Assuming both require a license, and knowing good and well a B/G is not going to pay A thousand dollars to show this video for a month;

3. How do you tell a bride that the song she fell in love with the groom over, CAN'T be in the video without paying thousands?

4. Do you have a clause in your contract that idemnifies you from being sued when the bride figures out you didn't/don't have the music to the first dance in the final product, and she goes ballistic?

All 4 of these are legitimate questions, because, surely, if you tell the B/G all this, you'll NOT have a client for very long - the next guy that doesn't give a crap about the law will be the guy with the camera! (not that that is right - but it is a fact).

You can do whatever you want, use whatever you want, under fair use principles. The legal issues come in with distribution. I don't know specifically how you are selling your media but if it's for personal use then you can pretty much sidestep all potential legal problems. You only get into hot water as the producer if it's for a tv show or something that will air over public or certain private channels..

so I'm not sure why everyone is so paranoid about you holding all liability, you absolutely don't hold all liability. The distribution parnter would get sued, not you. But then they would sue you, and if you have a contract stipulating that you were not handling music rights, then you are good. You're just a content producer, which is only half of the industry. Content distribution is the other half.

"Personal Use" would be a situation such as you shooting your own kid's birthday party, in post adding "Happy Birthday" to the soundtrack, and then showing the resulting program to your own friends and family. Shooting someone else's kids, putting together the identical program, and giving it to the parents as a present is enough to take it out of the realm of "personal use" because it's not the personal use of the person actually preparing the program. Hiring yourself out to a couple to make a video of their wedding is absolutely NOT your own personal use. You don't need to be broadcasting or distributing publically to run into copyright issues.

Fair Use is a defense against allegations of infringment. It can only be raised as a defense once you have been sued. In the US it only applies when the work in question is being copied for purposes of current-events news gathering, criticism and review, academic research, classroom teaching in grades K-12, or parody. Copying for any other purpose is not Fair Use. It is not a blanket "use whatever you want whenever you want it" get-out-of-jail-free card.

You can write any contract you want with your clients. But whether a court would enforce that contract is another matter. Courts tend to be very reluctant to enforce contracts whose purpose is to sidestep what would otherwise be your legal obligations. You friend might say "Run that red light and if you're caught I'll pay the ticket", they might even put it in writing, but no court in the land is going to make them actually pay it if you're caught. You'll be the one on the hook. In the case of copyright, as the person preparing the derivative work you have the obligation to make sure all required licenses are in place. If they're not in place you can't have a contract that shifts the responsibility to your client. You will be the one sued for infringment. Then after you've incurred all the costs etc of that legal case you MIGHT be able to recover from your client if you have such a provision in your contract with him. But it would be foolish, IMHO, to count on the courts enforcing it.

To simplify, "fair use" is NOT a right nor is it a license. It is a defense.

"Fair use" is not for you to claim. It is a finding that a judge or jury makes about you (hopefully).

Chris Hurd is exactly right. I would add that, if there is a case brought, the "fair use" question WILL be decided. "Hopefully," means you hope it will get decided in your favor.

As for Chris Sgraraglino's four questions, each has been covered extensively in many other threads.

1. Is there a difference between using a downloaded MP3 version of the song as an audio track, or cording the couple dancing and getting the song/audio as incidental background music?

Not really.

2. Does recording the song as incidental background still requirer a sync license?

Yup.


3. How do you tell a bride that the song she fell in love with the groom over, CAN'T be in the video without paying thousands?

I assume this is a rhetorical question about risk assessment.

4. Do you have a clause in your contract that idemnifies you from being sued when the bride figures out you didn't/don't have the music to the first dance in the final product, and she goes ballistic?

"Indemnity" is the wrong term. (See my earlier post above).

Anyway, she can't sue you for refusing to violate copyright law. A suit like that would get dismissed as facially frivolous within a couple of weeks of getting filed.

And, there is a frequently repeated but utterly wrong misconception that the couple could sue you for bizillions of dollars for "emotional distress" of going ballistic. Can she do this? Nope. You have a contract. She can only sue you for breach of contract. Nobody gets "emotional distress" damages in a contract case. She gets only contract damages which are the difference in value between what she paid you and the presumably lesser amount that the product is actually worth.

The real problem is not legal liability in this instance. It is bad customer relations.

So, as with much else in videography contracts, it helps to be explicit with the customers. If you won't use any copyrighted audio, just say that. Then customers won't bad mouth you for refusing to do something you should have (but did not) tell them you would not do. If you are willing to infringe by including a first dance on a DVD but won't use the copyrighted audio in that Facebook trailer, then tell them that. Tell them you will provide substitute soundtrack for anything for web or widespread distribution.

None of this protects you when some overzealous homeland security droid suddenly drops out of the sky with an indictment charging you with economic terrorism by piratically expropriating copyrighted materials. If some feds or Sony or whomever decide to play whack-a-mole with minor infringers --- maybe because they figure the small-timers can't afford the high legal fees of trying to contest the charges --- will you have a legal leg to stand on? Nope. You have committed a technical infringement of somebody's rights. Just like all the other ones where your wedding video neglects to blur out a branded-label of the champagne bottles and does not get signed releases from every guest whose image appears in the video. (These are the kinds of questions that law students get asked to analyze in the exams.)

So, if it is possible, how likely is it? Well, that is not a matter of legal rights or defenses like "fair use." It is only a matter of playing the odds, which is to say, risk assessment.

Why am I talking about risk assessement rather than legal rights? Because most of the time, most everybody thinks it is absurd to to take things out to the nth degree of enforcing every conceivable legal jot and tittle like those that Jad mentioned above (things like blurring out any labels, getting releases from every guest, etc.) That does not mean that folks do not have those legal rights. If they want to enforce them, those rights do exist. Even though most people regularly disregard the jots and tittles in everyday life because they think the jots and tittle are absurd. Most of those whose rights are infringed are similarly inclined.

Even the most protective and/or avaricious usually only really care when it gets to the threat of mass distribution and other commercial piracy. Why is this? There is no viable system (here in this country) to get an inexpensive, low volume limited use license. It is economically infeasible for the likes for Sony to administer one for themselves. So, if you make a couple of DVDs for the bride and groom, nobody will care. Usually. Make a clip for the bride to have on her facebook page with a soundtrack that anybody can copy for free for their own use (as opposed to paying, say, iTunes for a download), and the rights-holders may see the threat of Napster-like "sharing" ([i.e., organized piracy.) Plus, they've got a host to talk to, and that is much more economically rational way to shut off that spigott.

Again, this is risk assessment not legalities. Do not confuse them.

Now, after all this criticism of the law, let's look at this from a different perspective for a moment. Let's say that one of the guests at the wedding has figured out how to extract copies of your video as you are shooting the wedding. The guest extracts that video, gives it to the bride to put on her website. The bride now refuses to pay you because she has a video and does not need yours. See where I'm going with this? If the bride and the guest have a contract, do you think they can avoid legal liability to you? Would anybody here seriously say there is nothing wrong with what they did?

...
Weddings are doc, fair use holds. Yes it's a hotly contested issue and yes you can find lawyers who will defend both sides. When all else fails, use common sense. YouTube - Broadcast Yourself. (http://www.youtube.com) exists and continues to exist. This shouldn't be possible according to copyright law.

Fair Use is not a blanket applying to all docos just because they're docos, it may apply to some of them when the doco falls into the category of current news coverage or one of the other categories defined by the law. Weddings don't fall into any of those categories and Fair Use does not apply to them.

Could this type of agreement avoid copyright issues for editors?

A customer who is unable to find suitable music in our library may prefer to order a silent video montage that has the exact running time of a particular piece of customer owned music. Please indicate your choice below:

[ ] I prefer a video montage with music selected from the licensed music library.

Title of music __________________________________________

[ ] I prefer a silent video montage.

Silent video running time ____ minutes ____ seconds.

Signature: _____________________________________________

The point of the above document would be to provide the details necessary to create a video montage with the exact length of a customer owned piece of music (presumably an original composition recorded by her soon-to-be-brother-in-law's garage band) without the editor even knowing what that music was (or having to listen to it).

You're going to ask your client to provide minutes:seconds:frames timing for each and every sequence in the final edited video where music might be added later? And just how are they going to edit their music into the soundtrack once you deliver the DVD to them - how many of your clients do you suppose own FCP, Premiere, or other NLE/DAW software? If you deliver the final version of the program to them sans music I don't see how you could be held liable for any modifications they might make to the later, though I don't think I would document the fact that you have prepared the program expressly so that they can add specific music tracks to it. I doubt you would be held liable if your client takes your program and turns it into something infringing since you're not responsible for their actions after you turn over your materials to them but from a practical business standpoint I don't see it working. And should your client successfully edit their own music tracks into the video and then post it on YouTube, let's say, so it came under the notice of the music's owners, you might have a hard time proving in court that it wasn't you who put the music in or at least aided and abetted your client's infringment by setting up the video so they could easily do it.

The only real solution is to establish a personal standard refusing the unlicensed use of another artist's property (where licensing is required by copyright law) in your own work and to advocate that professional societies, such as WEVA, of which you might be a member incorporate into their statements of professional standards and practices an absolute and unequivocal ban on the use of unlicensed materials by their members. It's not going too far even to suggest that such societies establish a system of sanctions for members who violate their canon of professional ethics and make a public statement that they will aid in the prosecution of such members who are found to be flagrant repeat violators. I think it is incumbent on all creative professionals earning income from their work to actively advocate respect for the rights of one's fellow creative professionals. Just as you have the right to be paid for your work in making the video you shoot for your client, the owners of the music you use in that video also have the right to be paid for their work and it is up to us to do all that we can to make sure that happens. It boils down to a simple respect for the rights of our fellow professionals, our brother and sister creatives, instead of trying to find ways of avoiding them.

I can see how the term "customer owned music" could be misinterpreted as ownership of a purchased CD containing music licensed for home listening rather than actual ownership of the music. The danger of being accused of aiding and abetting copyright infringement seems a serious issue. Just like a taxi driver can not knowingly drive a robber to the bank, a silent video montage can not be produced with the knowledge that a customer plans on using it for copyright infringement. The idea however was to support the creative efforts of others by not getting involved with or controlling the production, purchase and licensing arrangements for the music. I think you are right, though, that this could still be a problem.

Fair Use is a defense against allegations of infringment. It can only be raised as a defense once you have been sued.

Does it have to be actually something that needs to enter an actual courtroom or can this be settled at the Cease and Desist letter stage? I recall reading of people getting free help from Standford Law Center on this right when they get their unwarranted threat letters for legitimate Fair Use of their material and then record companies have backed off (and even apologized for their mistake). Am I misunderstanding this situation?

Doesn't seem right for someone to have to put out money they dont have for legal expenses (if they're not aware of this Fair Use legal help program at Standford) to have their rights enforced or even considered.

Does it have to be actually something that needs to enter an actual courtroom or can this be settled at the Cease and Desist letter stage? I recall reading of people getting free help from Standford Law Center on this right when they get their unwarranted threat letters for legitimate Fair Use of their material and then record companies have backed off (and even apologized for their mistake). Am I misunderstanding this situation?

Doesn't seem right for someone to have to put out money they dont have for legal expenses (if they're not aware of this Fair Use legal help program at Standford) to have their rights enforced or even considered.

Fair Use is not a right. It is a defense you can raise if someone claims you have infringed their copyright. Fundamentally you don't have any rights with regard to another individual's property. The legislature has deemed that for a few specific exceptions spelled out in the law which I have listed in other replies, the social good of having those sorts of publications outweighs the property rights of the individual copyright owner. If you receive a cease and desist letter you can either comply or you can respond that you believe your usage is Fair Use because of x, y, and z. The person that sent that letter can then decide if they want to pursue it further or you have convinced them with your argument and they decide to drop their action. If they choose to push it, then a court will decide if your use actually is Fair Use or not. If the judge decides your usage of the material falls into one or more of those categories your claim of fair use will likely prevail. If he finds it doesn't, your claim will be rejected.

Thanks for the clarification. btw, do you have a background in law or do you have a good site or book you could refer me to for detailed info on this laid out SIMPLY in layman's terms?

It would be nice if the mod could stickie this discussion thread, lots of very relevant and important info in here contributed by you and others!

Thanks for the clarification. btw, do you have a background in law or do you have a good site or book you could refer me to for detailed info on this laid out SIMPLY in layman's terms?

It would be nice if the mod could stickie this discussion thread, lots of very relevant and important info in here contributed by you and others!

If by "background in law" you mean have I been to law school no, I have not. I have had an interest in various types of media production for over 40 years and have worked professionally in publishing, photography and broadcasting at several points in my career. Over that time I have made it a point to educate myself on copyright and other legal issues that might affect me. My information has come from a variety of reliable sources over the years, including personal communication with friends who are practicing attorneys. One current source you might start with is a series of podcasts dealing with the law and video production by intellectual property attorney Gordon Firemark, available for download on iTunes. A web search on his name should turn them up for you.

AWESOME! Man if I would've known about that I probably would've skipped posting this question on here altogether and gone straight there (not that I and others didn't get helpful information in this thread from folks like yourself).

Thanks again :)

G