I am not a lawyer but the language in section 110 of the US Copyright law seems straight forward. For those who've never actually read the law, Section 110 is on "Limitations on exclusive rights: Exemption of certain performances and displays."

It says:
"...the following are not infringements of copyright:"
...
(3) performance of a nondramatic literary or musical work or of a dramatico-musical work of a religious nature, or display of a work, in the course of services at a place of worship or other religious assembly;
...

Can someone explain why, in the DVINFO FAQ here:
http://www.dvinfo.net/articles/business/copyrightfaq2.php#q6
the FAQ author seemingly contradicts section 110 of the US Copyright law in the answer to question 6?

Question 6:
I’m not charging any money for the work I’m doing, it’s for my church. Even when it’s broadcast, it’s serving God, and I receive nothing but blessings for my work.

Answer:
"Well... hope that God can provide a good attorney for you. Regardless of whether money changes hands or not, donative, remunerative, or free, it is a violation of the law to use copyrighted works....many people seem to be of the opinion that if the work is for religious value, then 'no harm, no foul.' The law doesn't look at issues this way."

I understand the infringement if it's TV broadcast but the FAQ answer is written in blanket language and does not seem to limit the legal analysis to TV broadcast part of the scenario; thus the question here.

US Copyright Law http://www.copyright.gov/title17/92chap1.html#110

This is easy: Have your lawyer interpret your goals with respect to the section you have cited. Done.

You aren't performing it. You are recording it and making copies of it. It almost is clear and there are very few exceptions. Plus, the actual statute does not include the wording of any legal decisions based on it. Requires a lawyer, but the QandA cover it much more clearly.

I'm not a lawyer either, but performance of a work and redistribution or broadcast thereof are entirely different beasts, and that may be the difference. The way it looks to me on a brief look, including a song as part of your religious performance is allowed to help protect freedom of individual religious expression, but broadcasting it outside your place of worship or creating derivative works goes beyond that protection and is regarded as infringement. Maybe that's not right either, but that's the impression I get as a non-lawyer.

I think the law is open to interpretation and argument/debate/persuasion. Or sometimes people just break it and don't get into trouble for it.

Examples:

Microsoft got convicted of antitrust laws. But because their lawyers are good, they are able to tangle the case in appeals for years so that the government just strikes a deal with them for lesser punishment.

Wedding videographers use copyright music all the time, yet no one gets sues for it.

Behringer (audio company) gets away with blatant reverse engineering and trademark infringement, yet they don't get sued because it's expensive to sue them. Their lawyers will tie the case up in court for several years (literally).

2- I'm obviously not a lawyer here and I could be wrong. But I think the right approach here is to take a real-world look at this:

How likely are you going to be sued?

(In my opinion, you're not going to get sued.)

The FAQ question doesn't really cite a specific scenario. Seems each of us has a different idea of what is being done. I was thinking performance of a dramatico-musical work, others were thinking recording and rebroadcast.

The TV broadcast part of the FAQ question is not mentioned in section 110 (making it clear) and so it was not what my query was about. However, section 110 says performance of a nondramatic literary or musical work or of a dramatico-musical work of a religious nature, or display of a work, in the course of services at a place of worship or other religious assembly is not infringement.

Yet, the answer to the FAQ question makes the blanket statement "many people seem to be of the opinion that if the work is for religious value, then 'no harm, no foul.' The law doesn't look at issues this way."

My point is that performing a dramatico-musical work at a place of worship is addressed by the law and declared to not be infringement. However, the FAQ on this topic says work of "religious value" is erroneously considered permissible and that the "The law doesn't look at issues this way."

So, I'm back to the point that the blanket statement in the FAQ:
"many people seem to be of the opinion that if the work is for religious value, then 'no harm, no foul.' The law doesn't look at issues this way."
appears to be erroneous and not do the very thing it is trying to do.

I am not a lawyer either, but look at the exact wording of the citation of the law ... "in the course of services at a place of worship or other religious assembly is not infringement." I'd read that as saying that for this provision to be applicable the work in question must be a live performance (actors or musicians physically playing or performing something) being conducted as part of a religious service in a location that is used principally as a place of worship. I would understand that to mean your could use music from "Jesus Christ, Superstar," played by the organist or church band and sung by the choir and congregation, as part of your liturgy in the sanctuary of your church without obtaining a license. But you still can't record it, broadcast it, videotape it, or perform it publically outside the context of an actual worsjip service.

The law cite addresses public performance in a specific setting.

The FAQ is written for those of us who make film/video recordings as either a hobby or a proffession.

The FAQ is addressing those who would RECORD/BROADCAST such a performance.

Seems pretty clear to me.

Though I AM married to a lawyer... maybe it's rubbing off on me.

Actually, the FAQ examples don't refer to recording and broadcasting. The FAQ uses examples of creating a music video:
"if you used a song from “Jars of Clay”* in your Mormon musical video presentation"
Later the FAQ makes the "blanket" statement.

Section 110 doesn't say "live performance". It says performance. So, up to this point, I'm trying to reconcile
1) the example of the FAQ (musical video presentation) to the Law (a dramatico-musical performance)
2) the law cites it as not infringement
3) the FAQ statement asserting even "if the work is for religious value" it's infringement.

ummmm.... What was the question???

I don't see any ambiguity or conflict. If you want to take music and perform it (or maybe play it) in church (or whatever passes for church), you are good to go. If you want to record it, you better get it cleared, because recording is not performance. The performers are not violating any copyright, but the recordist is. How many ways can this be said?

And if you really htink you found a loophole, be prepared to defend it in court. Book publishers aggressively pursue churches who photocopy hymnals, and they win every time. They can sing the songs, they just can't photocopy the words.

Earnest.

The FAQ was created for, and exists ON an bulletin board created for and maintained BY people who record and or broadcast video/film for a living and as a hobby.

The law speaks SPECIFICALLY about PERFORMANCE issues. PERFORMANCE is a "Term of Art" in legaleze. It is decidedly different from recording or broadcasting.

But like I said, I'm married to an Intellectual Property/Copyright attorney. I can ALMOST always get free legal advice. Paul Tauger is also an IP attorney who drops in on the board, and offers the most excellent advice and insights available to the members in general terms.

Don't take my word for it, GO HIRE AN ATTORNEY. Consider it paying for peace of mind.

I already have it.

I have peace of mind. I'm trying to become literate on the subject giving rational logic and intellectually honest arguments, especially to young people who'd just as soon infringe as they would blow their nose.

I've approached this as I would lighting, mic'ing or whatever. I brought the subject up here (where I knew there were experts) after months of reading on the topic, searching various postings (here and elsewhere), and then ultimately coming upon the FAQ where I read from a noted authority:
1) "Regardless of whether money changes hands or not, donative, remunerative, or free, it is a violation of the law to use copyrighted works. "
2) "many people seem to be of the opinion that if the work is for religious value, then 'no harm, no foul.' The law doesn't look at issues this way."

However, according to section 110:
1) There are conditions under which one can "use" copyrighted works
2) There are conditions when the work is for religious (and others) values that there is no foul

If A is asserted to be infringement because of B and B is found to be untrue, that doesn't mean that A is not infringement. It only means B is not the reason. My question was to seek out the reason C from the copyright law that shows A is infringement.

So if the FAQ is wrong on it's reasons for it's answer to question 6 when something is infringement, then it sheds doubt on the veracity of it's assertions on the other infringement examples as well as the non-infringement in question 10. I should think we'd all want a good FAQ on this topic.

I'm not married to an attorney but I'm glad Richard is and has contributed to this thread. Revealing that Performance is a Term of Art was very helpful and led me to find the legal definition of Performance in the Copyright Law (section 101):

To perform or display a work “publicly” means —
(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or
(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

So, in search of the reasons why the FAQ illustration is infringement, the refined question is:

Is the FAQ example of using a song from “________” in a Mormon musical video presentation a "performance in the course of services at a place of worship" that is exempted by section 110?

So, in search of the reasons why the FAQ illustration is infringement, the refined question is:

Is the FAQ example of using a song from “________” in a Mormon musical video presentation a "performance in the course of services at a place of worship" that is exempted by section 110?
Question 6 in the FAQ explicitly references use of copyright works in music videos, synching, and broadcasting. It seems that the remainder of us interpret the law such that a PERFORMANCE, if done as part of a genuine religious worship service, is not infringement. But a broadcast of same, a music video, or other such synching of copyright music to your own video would most definitely be infringement -- and it would be irrelevant whether the original work was religiously oriented or not. That's clearly what Question 6 is talking about.

Does that rewording take care of the lingering doubts?

With respect to the OP, Section 110 applies to performance, which is a different reserved right from the right to make copies.


I think the law is open to interpretation and argument/debate/persuasion.
The US is a common law jurisdiction, so the law is interpretted -- by judges, but not by laypeople.

Or sometimes people just break it and don't get into trouble for it.
And sometimes they do.

Examples:
The US constitution did not always guarantee rights to blacks and women.
The US Constitution originally reserved, expressly, certain rights to white men. The US Constitution was subsequently amended. However, you are right to this extent: the Constitution is, by design, intended to be construed and the judicial system is the entity designated to perform that construction. Because the Supreme Court does not have original jurisdiction (with some minor exceptions), it can only accept cases on appeal, meaning that a specific fact pattern has given rise to a constitutional question. As a result, the meanings afforded provisions in the Constitution are constantly being reviewed and refined. The fundamental conceptions, however, are not.

The US constitution is supposed to protect those who are ?illegally? deported to foreign countries for torture. But in practice it doesn't apply.
As you noted, sometimes the law gets broken and the law breakers get away with it.

Microsoft got convicted of antitrust laws. But because their lawyers are good, they are able to tangle the case in appeals for years so that the government just strikes a deal with them for lesser punishment.
An alternative view is that the Justice Department is part of the Executive Branch, and Microsoft is a heavy contributor to politicians.

Wedding videographers use copyright music all the time, yet no one gets sues for it.
How do you know?

Behringer (audio company) gets away with blatant reverse engineering and trademark infringement, yet they don't get sued because it's expensive to sue them. Their lawyers will tie the case up in court for several years (literally).
I'm unfamiliar with what you're referring to. Reverse engineering is not illegal. Trademark infringement is, and I routinely sue companies a lot bigger than Behringer when my clients' marks are infringed. Infringement actions are usually tried in federal court where, depending on jurisdiction, a case can take from 12 to 24 months to come to trial. The length of time is dependent on the court's docket, not on "lawyers [who] will tie up the case."

2- I'm obviously not a lawyer here
Obviously.

and I could be wrong. But I think the right approach here is to take a real-world look at this:

How likely are you going to be sued?
You are confusing questions of legality with risk assessment -- that's comparing apples and oranges. Risk assessment is simply a business judgment -- my clients make risk assessments all the time. However, in order to evaluate the calculus of risk, they need to be fully informed.

(In my opinion, you're not going to get sued.)
And your opinion is based on . . . what?

For example, did you know that most District Court decisions are not reported, meaning that lawyers cannot go on line and say, with any certainty (and as you did), that no wedding videographer has ever been sued for copyright infringement. For that matter, I'll bet you also don't know why businesses sue. It's not to collect damages. Businesses sue for infringement when the defendant is hurting profitability, or when they wish to send a message to potential large scale infringers that they will not tolerate usurpation of intellectual property rights (think RIAA), or when they wish their competitors to know that they are aggressive in addressing infringement. Where do you think wedding videographers fit in this picture?

I'm an IP attorney, and I can't say, with certainty, that wedding videographers haven't been sued and, more to the point, that they won't be sued.

Sorry. You're opinion is uninformed, and an uninformed opinion is of little value.

Section 110 doesn't say "live performance". It says performance.
"Public performance" is a term of art, defined in the Copyright Act. Section 110 is, probably, broad enough to cover playing a video or film as part of a church service (that's public performance). I've never researched the case law that's addressed Section 110 (assuming that there is any at all). Making a video of a public performance, whether the underlying material is presented pursuant to license or is defined as non-infringing under Section 110, is still making an unauthorized copy, which is a separate reserved right.

So, up to this point, I'm trying to reconcile
1) the example of the FAQ (musical video presentation) to the Law (a dramatico-musical performance)
I'll have to take a look at the FAQ and see what example is given.

2) the law cites it as not infringement
The law cites "performance" as non-infringement. As an example of a statue in which recording is defined as non-infringement, take a look at the AHRA.

3) the FAQ statement asserting even "if the work is for religious value" it's infringement.With respect to recording, the FAQ is correct.

CCLI has licensing agreements your church should pay for that permit certain instances of broadcast and re-distribution of copyrighted works.

I do not recall the specifics, but it is definitely not free, unlimited use.

I'm unfamiliar with what you're referring to. Reverse engineering is not illegal. Trademark infringement is, and I routinely sue companies a lot bigger than Behringer when my clients' marks are infringed. Infringement actions are usually tried in federal court where, depending on jurisdiction, a case can take from 12 to 24 months to come to trial. The length of time is dependent on the court's docket, not on "lawyers [who] will tie up the case."

Behringer got into lawsuits with Aphex (Aphex won) and with Mackie (Behringer won, but settled out of court too I believe [may be because Mackie was going to pursue further action against Behringer, not sure]).

The Aphex case supposedly took six years, although that's based off what someone from Aphex said (see http://www.dvinfo.net/conf/showpost.php?p=48292&postcount=2).

Behringer's products look similar to many other company's products, in particular:
http://www.record-producer.com/prepare/behringer-ct100-cable-tester.cfm
http://www.sweetwater.com/store/closeup/SwizzArmy--Main
Behringer, to me, looks like they copied the cable tester down to the silk screening. Ebtech has supposedly not sued Behringer because it's not worth it. Behringer is a German company.

2- Wedding videographers never being sued: I have no way of knowing for sure if a wedding videographer has ever been sued for using copyright music. However, WEVA's position on it is as follows:
March 5 2003

WEVA OFFICIAL POSITION ON
COPYRIGHT ISSUE

Wedding videographers CAN clear music. Copyrighted material can be officially
cleared and "legally" used (by obtaining written permission) for wedding
productions. It is generally a tedious and laborious process because it must
be done on case-by-case, song-by-song basis, as here in the US there is no
music publishers "clearing house" that is able to grant "blanket recording
rights." ASCAP and BMI do not have the authority to grant recording rights.

WEVA International takes the position that it is up to each individual
wedding videographer (or their clients, per their contract terms) to secure
any permits that may be necessary for material used in a wedding video.
Regarding the music publishers: it is up to them, and not WEVA, to determine
what is of concern to them and their interests. They, of course, are fully
capable of speaking for themselves and initiating action on their behalf to
protect their own interests. Wedding videos containing copyrighted
(non-cleared) music have been produced for more than 20 years. The music
industry is obviously aware of this situation. Presently, we are not aware of
any litigation involving the use of music on a wedding video.

The 1976 Copyright Act (US Code, Title 17-Copyrights), is the governing
instrument for copyright protection. It discusses the matter of
"infringement" in great detail --what is (and is NOT) infringement and
establishes the remedies for infringements. Unfortunately, there is no
section or amendment specifically pertaining to "wedding videography."
Consequently, a definitive resolution in this area is ultimately subject to
Congressional review and judicial evaluation.

If infringement is occurring with respect to wedding videography it may be of
very minor concern to copyright holders (akin to going 22 mph in a 20 mph
zone) and not considered to be a case of substantial "wrongdoing" or an
"actionable" offense.

On the other hand, there are many who believe that certain provisions of the
Act may mean that music used for individual "home use," as opposed to use for
commercial distribution, does not constitute infringement. For example,
Section 107 (paragraph 1) of the Copyright Act says "...the fair use of a
copyrighted work, including such use by reproduction in copies or
phonorecords or by any other means specified...is not an infringement of
copyright." The Act states that several factors are used to determine "fair
use." One is "the purpose and character of the use," another factor cited is
"the effect of the use upon the potential market for or value of the
copyrighted work" (Section 107 paragraph 2). Other related matters may come
into play here as well, specifically the "Betamax decision" of the late of ‘‘
70s which "legalized" taping of copyrighted works for home use.

In light of these and other factors, once again, it would be wrong for WEVA
to automatically assume that wedding videographers are "violators" or even
that the music industry is upset by this matter.

In short, WEVA International believes that all of us should comply with the
copyright law and further assumes that its members agree. WEVA also
recognizes that the law is not as clear in this area as it should be, and it
is not clear how concepts such as "fair use" will apply to wedding
videography. We hope that the law will be clarified by Congress and the
courts in the future and we will continue our efforts to achieve such
clarification.

-------------------------------------------------------------------------------------------

3- Anyways, I'm not a lawyer and I'm wasting my time here.

Question 6 in the FAQ explicitly references use of copyright works in music videos, synching, and broadcasting. ... But a broadcast of same, a music video, or other such synching of copyright music to your own video would most definitely be infringement ...
Does that rewording take care of the lingering doubts?

The rewording sheds light. Recording, broadcasting, and music performance activities aren't separated in the FAQ. Seems it gives the illustrations of a "musical video presentation" and then talks about infringement based recording/broadcasting. Cleaning that up would improve the FAQ.

You mentioned performance of video synch'd to music as separate from performance of music and that it is infringement. I've read discussions that refer to synching but I haven't found anything about it (yet) in the Copyright law.

Does anyone know how performance of music with sync'd video (not recording or broadcast) is different from performance as defined in section 101 and therefore infringement when performance of just the music is not?

Glen,

It sounds like Behringer was tresspassing on "trade dress" and possibly patent infrengement. Either one will get your butt slapped pretty good.

...
Does anyone know how performance of music with sync'd video (not recording or broadcast) is different from performance as defined in section 101 and therefore infringement when performance of just the music is not?

The term "synching" does not mean playing music to accompany the display of a video or film such as the theatre organist did back in the silent movie days (although that's probably where the term originated). It means adding a recording of the music to the recording of the video so that the music becomes an integral part of the soundtrack of the completed work. The music is then said to have been synced to picture just like the dialog. You need a sync license to incorporate the music into the production in the first place and then a separate "mechanical" license to make and distribute copies of the completed work containing that music and a performance license to show it publically.

In the interest of contributing toward improving the FAQ, and given what's been ferreted out here, I wrote/assembled the revamp of the answer to question 6 below. It isn't short but it is more precise and I hope it retains the intents and illustrations of the original.
-----snip-----
Regardless of whether money changes hands or not, donative, remunerative, or free, it is a violation of the law to broadcast copyrighted works**. Damages can be determined based on the impact of the use of the work. For instance, if a song from “Jars of Clay”* was used in the broadcast or web video of a Mormon service, and “Jars of Clay” didn’t want to be associated with the Mormon community and further it was found that the use of their song may have had negative impact on "Jars of Clay" record sales in the Christian community, the fines would be stiff and swift. It is worth noting that section 110 of the Copyright law gives churches and other institutions, rights relating to performance of a work under specific situations that are specified in that section. Making a video recording of a public performance, whether the underlying material is presented pursuant to license or is defined as non-infringing under Section 110, is still making an unauthorized copy, which is a separate reserved right. So while a public performance may be granted in section 110, it does not grant recording rights to do a broadcast or web transmission.**

Even under the conditions when performance of a musical work is allowed by section 110, synchronizing the work to a video so that the music becomes an integral part of the soundtrack of the completed work is infringement unless a sync license is acquired from the owner of the work. Additionally, a separate "mechanical" license is needed to make and distribute copies of the completed work containing that music. A public performance of a work outside the conditions granted in section 110 requires a performance license.

So if a Baptist church program synced Eminem’s* music to an anti-cursing video, or if a Satanic church synchronized the Mormon Tabernacle Choir* to visual hate messages, both would be infringing for synchronizing music to video. In addition to infringement, they could also be potentially found to be commercially impinging, not just technically damaging.

????Is this right????
Both individuals and organizations could incur stiff fines.
????Is this right????

I don't mean to be disrespectful, but many people seem to be of the opinion that if the work is for religious value, then 'no harm, no foul.' The law doesn't look at infringement that way. It grants specific rights to churches and other institutions to perform works under specific conditions.

* The use of any artists name in this article is not to suggest any knowledge of real or imagined circumstance. The names are used only for illustrative purposes and bear no resemblance to reality.

** In the Section 101 definition of "performance", it says:
"to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times." This would seem to imply broadcasting it is not infringement when done when allowed in section 110. This issue needs clarification.
----snip----
That untangles the things I found inconsistent with the FAQ, what I read in the Copyright law and what was distilled here. Thank you to those who read my long posts and gave thoughtful responses. You guys can do what you want with it. I have more questions now that this stuff is sinking in but I think I'll start another thread sometime when I have time.

Ernest, that does not correctly address the FAQ though. You can make copies of copyrighted work as you describe with the proper permissions usually through a licensing agreement. If you license the work, usually with the assistance of an IP lawyer, a specialist who does synch rights, or directly with the rights holder, you can do it. It may take a bit of work though and may not be timely.

...

2- Wedding videographers never being sued: I have no way of knowing for sure if a wedding videographer has ever been sued for using copyright music. However, WEVA's position on it is as follows:
In other words, their position is "don't ask, don't tell!" LOL

On the other hand, there are many who believe that certain provisions of the
Act may mean that music used for individual "home use," as opposed to use for
commercial distribution, does not constitute infringement. ... <snip> ... Other related matters may come
into play here as well, specifically the "Betamax decision" of the late of ‘‘
70s which "legalized" taping of copyrighted works for home use.

It boggles my mind that the folks mentioned in that WEVA position statement can stretch the fair-use doctrine that allows someone to make a copy for their own personal use of a recording they own to try to also cover a business that is making copies of recordings the client perhaps already owns (or not), incorporating the copies as a component into their own product, and then selling the resulting product to their clients. I wonder how long a business would last before being sued that advertised "Why risk loss of your valuable CDs when you take them in your car? Bring 'em to us and we'll make copies for you to take on the road so you can leave the originals safe and sound at home!"

Ernest, that does not correctly address the FAQ though. You can make copies of copyrighted work as you describe with the proper permissions usually through a licensing agreement. If you license the work, usually with the assistance of an IP lawyer, a specialist who does synch rights, or directly with the rights holder, you can do it. It may take a bit of work though and may not be timely.

I've stared at my post and can't connect this comment to it. I felt my revamp (while not comprehensive) hit on the same topics but improved on the lack of precision of the original FAQ answer. I found the original difficult to understand in it's ambiguity and apparent conflict (IMHO) with the copyright act. Maybe you are adding more precision, I don't know.

In retrospect, I think this thread illustrates how all the licensing surrounding music is excessive, unique in its over rigidity, made music accessible only by the rich and therefore ultimately stifles "the public good" which, if I read Paul Tauger correctly, is the balancing act of Copyright Law and the First Amendment.

I've stared at my post and can't connect this comment to it. I felt my revamp (while not comprehensive) hit on the same topics but improved on the lack of precision of the original FAQ answer. I found the original difficult to understand in it's ambiguity and apparent conflict (IMHO) with the copyright act. Maybe you are adding more precision, I don't know.

In retrospect, I think this thread illustrates how all the licensing surrounding music is excessive, unique in its over rigidity, made music accessible only by the rich and therefore ultimately stifles "the public good" which, if I read Paul Tauger correctly, is the balancing act of Copyright Law and the First Amendment.

But put yourself on the reverse side of the equation. You spent a lot of time and effort, years practicing to learn your craft, and perhaps a lot of money shooting a collection of scenic videos that are rare and magical. You are distributing them on DVD as part of a travelogue you have put together. A travel agency owner buys a copy of the DVD, lifts those clips from it, and uses them in a presentation for their travel agency at a Vacation and Travel Showcase sort of venue, without payment to you or attribution for your work. How would you feel? Do you think the laws that make that illegal and give you recourse to legal remedies are overly rigid and favouring of the rich? How does your scenic video differ from a song on a CD marketed by Sony? And finally, in terms of the religious "fair use" exceptions, how is it in any way different, in terms of fairness to you to you and respect for your efforts and rights, for the travel agent to use your video clips of Jerusalem without permission in a presentation to sell package tours versus a church using the same clips without permission in a presentation on "The Land the Jesus Walked" to be shown during a worship service (and would you feel any differently if the religious organization using them was diametrically in opposition to your own religious views)?

I use those points myself when defending copyrights against those who think it's OK to steal music other copyrighted work. That isn't what I meant. I'll try again.

I started this thread trying to reconcile the FAQ answer to the copyright act. What ensued was much elaboration and clarification on the licenses required to use music in a video production which was what the question 6 illustrations used. Your posts were very helpful and you mentioned the licenses succinctly as:
Sync
Mechanical
Performance

Getting a performance license is a straight forward reasonably priced transaction from a place like ASCAP.

However, there is not such a process for getting a sync license for the same copyrighted work. It is not an easy online activity with an umbrella group like ASCAP, rather, from what I can tell, it is done only by the current owner of the work and as George Ellis put it, usually requires "the assistance of an IP lawyer, a specialist who does synch rights, or directly with the rights holder, you can do it. It may take a bit of work though and may not be timely."

As an experiment, I researched a couple of titles from my CD collection. Each one was a popular modern work and yet contacting the owner was going to have to be a snail mail or phone call contact. Even getting the mailing address was difficult. There were no websites for any of the owners. Asking around amongst some professional producer friends, I learned it could easily take thousands of dollars in attorneys fees, thousands of dollars for a license and not be done quickly. Just like George said.

It's the difficulty and expense for a sync license that I meant when I referred to the excessive licensing and rigidity around music. Thus my conclusion that the music video art form, done by the rules, is only accessible by the rich. I am not a copyright scholar but having the music video art form controlled by attorneys and accessible only to the rich didn't line up with other writings I'd read on how the system was supposed to work in terms of encouraging "derivative works" and "serving the public good". AFAIK, those principles are fundamental to the way copyright protection and the first amendment are supposed to interact. Paul Tauger referred to it as "tension" between the two.

So, over the years I've tackled lighting, mic'ing, editting, web, dvd, sports, comedy, and documentaries. It would appear for now, music video is out of reach for those learning the craft. Fortunately, there's no license required to use three-point lighting.

Ernest.

YOU WROTE:

"...Each one was a popular modern work and yet contacting the owner was going to have to be a snail mail or phone call contact. Even getting the mailing address was difficult. There were no websites for any of the owners. Asking around amongst some professional producer friends, I learned it could easily take thousands of dollars in attorneys fees, thousands of dollars for a license and not be done quickly. Just like George said. "


There is absolutely NOTHING to prevent someone from GIVING you the rights to their work for free.

Absolutely nothing.

It's just highly unlikely that anyone would want to. And why should they?

The costs incured to track down rights, don't HAVE to be high. They just take time.

Time costs money. It always does. If your time is not expensive, you can find out absolutely everything you want to know, simply by spending enough time on it.

There are HUGE numbers of bands out there, who aren't famous, who will be happy to license synch rights to their music. You just have to put in the BTU's to find them.

Here. Here's a great place to start. http://www.unsignedbandweb.com/

YOU WROTE: "It's the difficulty and expense for a sync license that I meant when I referred to the excessive licensing and rigidity around music."


You can get synch rights to nifty music for free in some cases, and small change in others. The internet makes for a GREAT place to find royalty free, needle drop and buy-out music. It's not hard or expensive or even time consuming to find these sites and buy the rights.

It's just that the music isn't already famous and popular.

You see, someone has already spent enormous ammounts of time and money making popular music... well, POPULAR.

They want to recoup that time and money. Funny how that works.

Complaining about how difficult it is to get the synch rights to POPULAR music,(and despite the lack of use of that word in your post, it IS the type of music you are looking for) is like complaining how difficult it is to get to spend time with a celebrity. It sure doesn't seem fair now, does it?

Am I complaining? Didn't think I was. I get your points but I'm not sure you really got mine since you compare non-popular and popular works. Here it is spun a different way:

It costs 99 cents for a license to "own" a copy for listening to a POPULAR work. So even though, as you say, someone "has already spent enormous ammounts of time and money making popular music ...well popular", it's reasonably priced and easy to access.

It costs a few dollars, maybe a couple tens of dollars for a performance license of a POPULAR work. Again, reasonable priced and easy to access through one of a small number of umbrella organizations online even though someone "has already spent enormous ammounts of time and money making popular music ...well popular".

But, to sync video to the same work costs thousands in legal fees on top of thousands for a sync license.

Same POPULAR work but significantly more expensive and, as you say, lots more "BTUs".

A
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It costs 99 cents for a license to "own" a copy for listening to a POPULAR work. So even though, as you say, someone "has already spent enormous ammounts of time and money making popular music ...well popular", it's reasonably priced and easy to access.

It costs a few dollars, maybe a couple tens of dollars for a performance license of a POPULAR work. ...

But, to sync video to the same work costs thousands in legal fees on top of thousands for a sync license.

Same POPULAR work but significantly more expensive and, as you say, lots more "BTUs".

True enough - but one could argue that a fair scheme is one that would result in the copyright owner getting paid some certain amount each time one individual hears one playing of the song. The purchase of the song for $0.99 is exposing the song to one individual listening to it a limited number of times. The few tens of dollars for a performance license is exposing the song to one listen by a few hundred individuals. But a sync license potentially exposes the song to "listens" by tens of thousands of purchasers or viewers of the final production. So in that sense, several thousands of dollars for a sync license to include a song in a video release is about the same cost, perhaps even a much LOWER cost, on a "per person, per listen" basis as the 99 cent download to your iPod from iMusic.

I keep forgetting to mention how entertaining your tag line is. Always good for a smile.

Again, good analysis from the "House" department. :-) I think it's the fact that the whole licensing process shifts from "reasonable-online-automated-pricing grid" to "prohibitive-manual-attorney-expensive black hole" that strikes me as excessive and ultimately not "serving the public good". But, I'm a newbie to this whole scene. I would think some video-music works don't, by definition have a distribution of tens of thousands. The sync license pricing could reflect the number of ears and number of performances as part of the final license price. Thanks for putting up with my newbie questions and analysis.

I keep forgetting to mention how entertaining your tag line is. Always good for a smile.

Again, good analysis from the "House" department. :-) I think it's the fact that the whole licensing process shifts from "reasonable-online-automated-pricing grid" to "prohibitive-manual-attorney-expensive black hole" that strikes me as excessive and ultimately not "serving the public good". But, I'm a newbie to this whole scene. I would think some video-music works don't, by definition have a distribution of tens of thousands. The sync license pricing could reflect the number of ears and number of performances as part of the final license price. Thanks for putting up with my newbie questions and analysis.

I just enjoy the give and take of discussion - kind of a keyboarding form reminiscent of my days as talk-radio on-air talent.

I completely that it certainly should be simpler to track down the copyright holders in order to secure licensing - most written works have the name and address where one can get permission to use somewhere in the publication and it would be great if musical recording did also. I think one reason is that industry practises just haven't caught up with the fact that it's no longer a tight little circle of people who all know each other anyway.

"I think it's the fact that the whole licensing process shifts from "reasonable-online-automated-pricing grid" to "prohibitive-manual-attorney-expensive black hole" that strikes me as excessive and ultimately not "serving the public good".

But I keep telling you it IS easy to get synch rights to music. Go to any of these royalty free music sites, and the licensing fees and licenses are right on the page. Easy peasy.

It's the fact that you want to synch EXTREMELY VALUABLE and poplular music that can be difficult. You keep saying the "PROCESS" is too difficult and expensive. I keep saying that is so for CERTAIN pieces of music, but not all. The problem does not lie in the copyright laws, or in the fact that individuals get to determine BY THEMSELVES how accessable they want to make aquiring the rights to their property to be.

I own a home. IF I want to sell it, I list it on the market. IF you want to buy it, you make an offer. IF you are looking for a house JUST LIKE MINE, and you FIND MINE, and it's NOT ON THE MARKET it's going to be extremely difficult for you to get hold of me, and ask me to sell it to you. I might not want to list it. I might be convinced that I will sell it, but at an extremely high price.

SYNCHING RIGHTS are just one of the many rights that are the property of a copyright holder. They are under no obligation to sell them, or indeed even OFFER then for sale to the public. The controll of those rights is completely at their discretion. One might argue that your house should be listed at a fair price for purchase or rental on an easily accessable online database, with predetermined purchase and rental prices with an easy to print out form that won't cost much... even if you don't want to sell it. Doesn't that sound reasonable?

Each of the rights held by the copyright holder(s) has a specific value to the holders. Synch rights for popular music has gone through the roof with the advent of music videos in popularity. Just like houses in a particular location can become extremely expensive to buy. It's just the market factors at work.

I think it's a difficult task you've taken on to try and defend the current process and law. Finding an analogy is difficult and the one about selling a house falls very short. House sales are about transferring ownership. The negotiated price is the same whether you live in it, pick your nose in it or raise it. I think anyone would be hard pressed to find a good analogy.

Royalty free music is not the same. There's no lyrics, No story. no message. It's background music. My point about "not serving the public good" is that popular music, by definition of it being popular, is part of the culture out there making social commentary but using it in the music video art-form is the domain of the attorney adorned rich.

The law and process for sync rights needs to be improved. In the case of a popular work, the act of giving license has already been done for listening and performance. I never said it had to have sync rights available. Sync rights to popular music should be as easy to determine availability, apply for and acquire as it is for other rights. They should not require attorneys, snail mail, phone calls and faxes.

As far as the assertion that there is no problem with the law wrt sync is a point I disagree with. Consider that the law doesn't mention sync rights.

Earnest,

Your opinion of royalty free music is certainly one you are entitled to. Though I have found that, just as with popular music, the better sources are more expensive. If you searched the indy band site link I gave you, you will find tons of 'message' music with lyrics, and attitude put out by talented, but 'unkown' bands who just my be the next best thing. They are relatively easy to approach concerning their music. I myself have just reached an agreement with a new up and coming band to use their music in a short I am producing. I think it will be a hit some day, and it's not costing me a dime.

Your argue that because their music has less 'merit', or is less popular, it somehow negates the point that their SYNCH rights are represented in exactly the way you insist synch right should be. Easy to locate, negotiate and purchase.

What we are left with, is the fact that the people who own the synch rights to their music, get to make them exactly as accessable as they choose to make them.

"House sales are about transferring ownership. The negotiated price is the same whether you live in it, pick your nose in it or raise it" I don't know what you mean by 'the same'... I've seen house prices listed, and go up or down depending on how 'popular' their location is, and what the market demand might be... and the house itself doesn't change at all. SYNCH rights are also about transferring ownership. It can be complete, or partial or limited in any manner of ways... because the owner of the copyright gets to decide exactly how they want to transfer it.

You seem to have a basically flawed understanding of copyright law. You seem to think that it should be easy for someone interested in my property to have immediate access to it.

Copyright is intellectual property. It is bought, sold, traded and licensed just as you would any other property. It consisits of a whole 'bundle' of assets including, but not limited to performance, reproduction, broadcast, and synch rights. And there is absolutely no obligation or law that requires me to list my property for sale for any given ammount on any given list at any given time.

I have proven that owners of some IP make the synch rights easily and readily available. You are upset that owners of certain extremely valuable IP will not make specific elements of their rights readily available to YOU.

The "problem" as you see it, lies with those who decide NOT to make their snch rights readily available, not with the system that allows them to do so if they choose to.

Richard,

Gee, after all these posts, you still misspell my name and misrepresent my points. :-) I try to take the time to create thoughtful contributory posts and avoid "YOU" based language and attacks. However I don't care for the ideas YOU imbued upon my post so...

If you searched the indy band site link I gave you, you will find tons of 'message' music with lyrics, and attitude put out by talented, but 'unkown' bands who just my be the next best thing.
Trust me, I went there but I didn't get very far since most pages just stalled and wouldn't load. Regardless, I've bookmarked it for the future if I ever need it and I will use it with the young people I encounter who want to do a project with unpopular works.

Your argue that because their music has less 'merit', or is less popular, it somehow negates the point that their SYNCH rights are represented in exactly the way you insist synch right should be.
I didn't argue that. I argued that some rights for most popular music are easily gotten through less than a handful of of online websites. Synch rights to the same popular music is an "attorney required activity" and high "BTU" effort for the rich.

You seem to have a basically flawed understanding of copyright law. You seem to think that it should be easy for someone interested in my property to have immediate access to it.
I don't think that at all. The misrepresentation you give mixes the law with the process. My availability/access criticism is of the process. The law doesn't address the process and I don't think I said that it did.

And there is absolutely no obligation or law that requires me to list my property for sale for any given ammount on any given list at any given time.
This is more mixing of the law and the process. I never said there was a law that obliged access. I criticised the process that denies easy access for synch to popular works but doesn't deny easy access for other rights to the same works. Even determining if they are available and therefore may be worth the "BTUs" would be an improvement to ASCAP et al

You are upset that owners of certain extremely valuable IP will not make specific elements of their rights readily available to YOU.
I am not "upset" and imbuing that emotional reaction on me is unnecessary. I have no idea if "they" would grant rights or not so how could I be "upset"? But I am critical of the process for popular works that makes even finding out if they are available an "attorney required activity" and high "BTU" effort (according to most sources) for the rich.

I think the process should be improved. You defend the current process. Fine.

Ernest.


"The law and process for sync rights needs to be improved" - seems to be a straightforward comment on your thoughts concerning both the law AND the process. So maybe you are combining the two in your complaints. My point being, that the copyright LAW has nothing to do with the availability of the rights.

At any rate, you are free to create a independant 'for profit' company, that martials its forces to negotiate and offer synch rights to various popular songs. Orgainizations such as WEVA are trying to get Ascap and Bmi to look into just this option, but so far... THE MARKET doesn't seem big enough to the copyright holders.

"Sync rights to popular music should be as easy to determine availability, apply for and acquire as it is for other rights." - Why? They are not the same as other rights, and have a different value.

"The law and process for sync rights needs to be improved" should be interpreted as "The Law needs to be improved and the process needs to be improved". Two independent points.

Why should the synch rights process for availability and acquisition be improved?
That is a fair question. Probably the same set of business issues asked of Steve Jobs when he set out to make MP3 availability and acquisition affordable and easy. Eliminating the legal fees reduces costs and raises profits. Lower costs can also be used to lower prices and may increase demand thereby driving increased profits through increased sales because it's easier to access (online and attorney free) and acquire (affordable for some venues) for new market being addressed. And, once you have a low cost channel to market, you can offer tiered pricing for different uses (one-time performance to 50 people thru use in a Hollywood blockbuster) to sell into untapped markets. It's the price elasticity thing. There's probably more reasons.