I'm a wedding videographer. Of course, people have their favorite songs they want in the background of their videos, and this adds a slight legal problem. I know most people don't get caught, but if anyone has a nice disclaimer they add to the beginning of the video about how its for personal use only and not to copy or distribute it I would be more grateful for you to send it my way.

Any other advice on this subject is also welcome!

Thanks
Annie

and I understand it is still a violation of copyright, and that nothing is going to get me out of trouble if I do get caught. I just want sometime for the client to see that is nicely worded and official looking.

You just can't tell the bride her song can't be on the video :)

Annie

Basically you produce and get money to shoot the video so therefor you are responsible, the fact that the client only watch it at home, does not save you from the copyright since you sold someone elses work. So if you get caught, you are the only one that suffers and not the client.

You might try contacting ASCAP and asking what the real fees are for using it. I've used music in similar type productions and the fees have been quite affordable. I don't know specifically what they might be for a wedding.

I would make sure the premiums on my errors and omission insurance are paid up.

Technically putting the bride or groom's favorite music on a wedding video violates all sorts of copyright statutes. And just about every wedding videographer does it. (I don't do weddings so please take everything I say with a grain of salt.)

Wedding videos are produced in small numbers for private use and not for broadcast. Why putting music paid for by either the bride and groom or the videographer in a video should be a crime says a lot about how arcane, convoluted and unworkable the copyright statutes have become. For practical purposes it isn't worth your time and effort to attempt to purchase rights to a few songs for a handful of non-commercial tapes.

I have wedding videographer friends who ask the bride and groom to choose the music they want on the video and then purchase the CDs. They also add a non-descript clause to their contract which states that the video is for private use and viewing only and the videographer is indemnified by the client if the video is put to any other use. Not much protection but better than none.

I know a corporate media person for a major New York bank who regularly uses copyrighted music for in-house video. Technically it is illegal. When I asked him about it he waived a hand and said, "its in-house only". What he does is not that uncommon and the corporations involved have a lot more at risk than most wedding videographers.

Technically putting the bride or groom's favorite music on a wedding video violates all sorts of copyright statutes.

Not "technically." It does. Period.

Why putting music paid for by either the bride and groom or the videographer in a video should be a crime says a lot about how arcane, convoluted and unworkable the copyright statutes have become.

First, it's not a crime -- it's highly unlikely that there will be criminal penalties for this. However, there is nothing arcane, convoluted or unworkable with respect to this aspect of copyright law. The purpose of copyright protection is to give the author _absolute_ control over his/her work in specific contexts. Two of these aspects are the right to copy and the right to distribute. Except for fair use or compulsory license (which are not applicable here), a copyright owner has the right to say, "No one can use my work." That's why you'll never see a film version of "Catcher in the Rye," at least not until the book goes into the public domain.

Sorry you don't like it, but the right to exclusive control of copyright is express in the U.S. Constitution (at Article I, Section 8).

I have wedding videographer friends who ask the bride and groom to choose the music they want on the video and then purchase the CDs. They also add a non-descript clause to their contract which states that the video is for private use and viewing only and the videographer is indemnified by the client if the video is put to any other use. Not much protection but better than none.

It is absolutely no protection whatsoever. In fact, if anything, it suggests an awareness that the music is protected by copyright, which would support intentional infringement liability, which is significantly greater than liability for innocent infringement.

I know a corporate media person for a major New York bank who regularly uses copyrighted music for in-house video. Technically it is illegal. When I asked him about it he waived a hand and said, "its in-house only". What he does is not that uncommon and the corporations involved have a lot more at risk than most wedding videographers.

I wonder if the lawyers at your friend's bank know what he doing. There's a difference between "we probably won't get caught," and "we're not looking at much liability if we do." Statutory damages for intentional infringement are very high.

As for the risk to wedding videographers, the likelihood of getting caught and sued is probably low. The potential liability is enormous -- a corporation has general liability insurance that, usually, covers non-intentional copyright infringement under the advertising injury provisions. A wedding videographer has his/her gear, house, car, etc.

Everything in business is the product of risk/benefit analysis. It's important to be very clear, however, about the nature and extent of the risk. Copying protected music on to a commercial video is not "technical" infringement -- it is every bit as illegal as making pirated copies of the underlying CD and selling them on the street.

This is simply ridiculous. And the scare tactic of suggesting that a wedding videographer could lose everything because he put the bride's "favorite song" on a private wedding video is absurd.

To call a wedding video a "commercial" video is equally ridiculous. A wedding video is a record of a private event which will be shown privately. Five maybe ten copies will be made. lt will not be distributed or resold.

For all intents and purposes there is no reasonable means for a wedding videographer to be "legal" - to pay the royalties and fees on copyrighted music so that he/she can put the music his/her client asks for in the video. The cost of processing the royalties on ten copies would exceed the royalties due by several times. Look at the Harry Fox site. They have a streamlined procedure for purchasing "limited quantity licensing rights" for units between 500 and 2,500. I have read where one videographer requested rights for 10 units and he was told to go ahead and not worry about it by a rep from the Harry Fox Agency. It wasn't worth bothering with.

The real risk to a wedding videographer being sued for delivering 10 copies of a wedding video with copyright music has got to be significantly less than the chances of the cameraman being struck by lighting on the steps of the church. Which is to say almost exactly zero.

The royalties on the copyrighted music were paid when the CD was sold (and probably overpaid then as the record companies have maintained a cartel to keep CD prices artifically high.) No, I realize that is not what the statutes say. The absurdity of all this is that a videographer could deliver a wedding video without music and also deliver a CD remix of the bride and grooms favorite music which they would play when viewing the video. That would be "legal". Adding the same music as a background track would not be.

So lectures about legality are fine but a little realty should be added to the mix.

This is simply ridiculous. And the scare tactic of suggesting that a wedding videographer could lose everything because he put the bride's "favorite song" on a private wedding video is absurd. I'm not trying to scare anyone. I am simply explaining the law. I don't care whether wedding videographers do this or not. I do care when a layperson posts incorrect legal information. I corrected it. That's all. Wedding videographers, like any other business person, will determine whether or not it makes sense, from a business perspective, to do this or not. They should, however, make the decision based on an accurate understanding of the facts, which include applicable laws and the bases for liability if they are called to task for violating them. The measure of damages for copyright infringement is specified in the statute. Look it up if you don't want to take my word for it.

To call a wedding video a "commercial" video is equally ridiculous. A wedding video is a record of a private event which will be shown privately. Five maybe ten copies will be made. lt will not be distributed or resold. Sorry, but you're simply wrong. Wedding videographers sell their work. That makes it commercial, which is relevant to damages (as well as any attempt at a fair use defense).

For all intents and purposes there is no reasonable means for a wedding videographer to be "legal" - to pay the royalties and fees on copyrighted music so that he/she can put the music his/her client asks for in the video. I'm well aware of that. I've even had discussions with ASCAP's counsel to try and change this. However, what relevance has that to the law?

The real risk to a wedding videographer of being sued for delivering 10 copies of a wedding video with copyright music has got to be significantly less than the chances of the cameraman being struck by lighting on the steps of the church. Which is to say almost exactly zero. Perhaps, perhaps not. I've have frequently sued on behalf of clients who felt the need to set an example for others considering infringing their work. I know of high schools that have been sued for copyright infringement. There's even a relatively famous case in which a minister was sued for making 20 copies of a hymn for his choir. I don't represent the record companies, and I have no idea how they regard "minor" infringement by wedding videographers. And neither do you.

The absurdity of all thsi is that a videographer could deliver a wedding video without music and also dleiver a CD remix of th bride and grooms favorite music whcih they would play when viewing the video. That would be "legal". Adding the same music as a background track would not be. I think it is even arguable that the bride and groom could add the music themselves. Under the AHRA, the act of copying music for personal use is immune to suit. However, no one has yet tested whether the AHRA applies to copying music to video; perhaps it would apply, perhaps not. In any event, it certainly _doesn't_ apply to the wedding videographer.

I agree with you 100% Paul, maybe someone should take this one step further, not by suing, but by giving the wedding videographers easy access and a fair price so that the brides can get their favorite music. Just a thought.

With a properly structured contract the protection of the AHRA could be used to shield both the videographer and the clients. As the risk of a suit is so low it might not be worth the trouble, but it could be done.

A business succeeds by meeting the needs of its customers. Which is why wedding videographers put copyrighted music in their videos. It would be stupid not to. So yes, you need to balance risks and rewards. Meet the needs of your customers and stay in business or cower before legalisms and the thugs from the RIAA and find anotehr line of work.

I'm just glad I don't shoot weddings. Too much work for the income and too many mothers of the bride.

<<<-- Originally posted by Rick Spilman :

A business succeeds by meeting the needs of its customers. Which is why wedding videographers put copyrighted music in their videos. It would be stupid not to. So yes, you need to balance risks and rewards. Meet the needs of your customers and stay in business or cower before legalisms and the thugs from the RIAA and find anotehr line of work.
-->>>

That's the same logic that fuels the multi-trillion dollar drug trade. If it's worth the money, why not take the risk, right?

OK, so I understand all the legalies of the situation, and am glad everyone got to offer some info on the subject, but all I was really wondering was if anyone did actually add a disclaimer, and if so, what it said.

Legally I know it doesn't help to add the disclaimer, but it doesn't hurt for the sake of the client.

Secondly, whats the best website to find a good collection of songs that I can pay for and then use in the videos? If anyone has purchased some music, I'd appreciate any feedback, good or bad, about what to look out for!

Sorry I started this heated discussion.

Annie

<<<-- Originally posted by Annie Cheatham :

Sorry I started this heated discussion.

Annie -->>>

Don't be! It's a perfectly valid discussion, and very informative for all.

Paul Tauger is a litigation attorney with years and years of experience in copyright law and intellectual property rights. We are very fortunate to have his input here; he definitely knows what he's talking about. Hope this helps,

Great Dylan, now you are comparing wedding videographers who work long hours for a few thousand dollars, if they are lucky, to the international drug cartels? The record industry has far more in common on many, many levels.

For a customer wanting a wedding video, the music copyright statutes are impossible to comply with, effectively un-enforced and in a meaningful sense un-enforceable. As Mr. Bumble says in Dicken's "Oliver Twist", "if the law supposes that, then the law is an ass."

The arrogance and shortsightedness of the music industry has already cost it a significant chunk of its market. Only recently have companies like Apple and others, largely from outside the industry, begun to develop workable alternatives to meet the needs of willing music customers. While the corporate enforcers from the RIAA keep coming up with new threats and harebrained demands, like charging royalties on used CDs. They use strong armed threats as an alternative to effective marketing - gee, I must have missed class that day when they taught that bit at business school.

At least in some areas things are getting better. High schools and churches can now purchase rights to music with a credit card over the internet for very reasonable fees. Unfortunately there is no comparable alternative for wedding music, though no doubt that will come to. In the mean time, everyone will have to keep muddling along.

Rick, the problem is that the same law that protects the big bad recording industry also protects the little guy (you and me). I doubt you'll see it that way until you've had something that you've created ripped off. Believe me it's the same feeling as having your car stolen. I know because I've had both happen to me.

I was walking through JC Penny one day and saw a T-shirt with my photograph on it. I bought a shirt and contacted my attorney. The T-shirt creator had seen the image in a book and virtually copied it directly to the shirt (he took a couple of branches out of the background). To make a long story short, I got $10,000 for the image. I feel full justified in getting paid for the damages I suffered and am thankful there are laws that protect the little guys.

Jeff,

I was speaking specifically of couples who wanted to use copyrighted music in their wedding video. To suggest or imply that they are ripping anyone off is silly. They bought the CD, paid royalties in the purchase price. They can legally listen to the music on their CD player while they are also watching their wedding video. They just cannot legally have the same music on the video itself. That is absurd. Unless we live in a police state where the record company lawyers search through all our videos and dvds, it is also unenforceable.

Your case is entirely different. Unlike a wedding video which is a private record of a private event, the t-shirt was for sale to the general public. Glad to hear that you pursued it and got paid for your work.

I am all for property rights and artists getting paid what they are due. It is a pity, actually a crime, that the music industry is notorious for not paying or for underpaying royalties to artists.

You are right, the laws should apply equally to all. They should also make sense.

Then fight to change the laws that don't make sense. But encouraging people to violate the very laws that protect us only dilutes it's strength and promotes this I don't care attitude. That's basically what the guy that ripped me off said. His arguments to my attorney were the same as yours

1. I paid for the book, I can do what I want with it.

2. I didn't think I'd get caught.

3. It's not my photograph, he changed it by removing the branches

4. It's worth it, because the next guy will probably never catch me and the risk is slight.

His ethics were clearly screwed up and that basically is what this whole discussion is about. The two sides will never agree. I could never do weddings, because very quickly my ethics would get in the way. This may be a gray area for you and I can understand that. But for me, this issue is a double edged sword and I can't walk both sides of it. On one hand, I can't ethically use the law to protect my work and on the other hand rip off other artists works and hope they don't find out. So, while I may not agree with every application of the copyright laws, I don't pick and choose the ones that I think are just or worthy of my compliance.

<<<-- Originally posted by Rick Spilman : Great Dylan, now you are comparing wedding videographers who work long hours for a few thousand dollars, if they are lucky, to the international drug cartels? The record industry has far more in common on many, many levels.

-->>>

Not the international drug trade, just the street level stuff. Two schools of thought: I'm willing to do the time, I'll do the crime. And, I'm too little they'll never get me!

Anyway, I won't say I haven't done it, because I have in a very limited aspect. I agree with the sentiment you are saying though. In a perfect world, you would be right, and they would be wrong. But the law is the law, and that's the bottom line.

If you cannot see the difference between a private video for private viewing and the mass market retailing of stolen material, then I doubt we could ever come even close to agreeing on this topic. To suggest that one fight to change unenforceable and unworkable laws defended by an army of lobbyists and lawyers has the same practical value as saying "go pound sand." Have I written to my congressman about it? Yes. Will I make it my day job? No.

I don't shoot wedding videos for reasons having nothing whatsoever to do with the background music. I am free to talk about the topic specifically because I do not shoot weddings and only use royalty free music for my corporate work. I can talk about how stupid and abusive the laws are, because I do not break them. Most wedding folks keep their mouths shut and do what makes sense.

I suspect that a contract could be structured so that videographers had some protection under the AHRA, though as getting sued over background music seems not to be a real world issue, it may not be worth the trouble.

This was a very informative disscusion.
Thanks to all of you who participated and gave their input.
Before reading this disscusion I just assume that it was perfectly legal to add the songs to wedding videos as long as the client provided the CD.
I was dead wrong. Thanks for pointing that out

Now, the million dollar question....

How can I use the songs legally?

I was wondering if Paul Tauger could direct me(I say me instead of "we" because I can only speak for myself) on how to use the songs the legally?


Who should I contact? URL maybe?
Phone number? Email?
Name of people you can recommend that could help with this situation?
Fees expect to pay and under what conditions. etc

Thanks in advance for your prompt response.

This is the url for ASCAP General licensing page-
http://www.ascap.com/licensing/generallicensing.html

This is the url for BMIlicensing
http://www.bmi.com/licensing/

These are the two top places to start. Or, do a search for royalty free music. Be careful to read the agreements. Some only allow you to use the music for presentations, school assignments, and such. There are quite a few decent music libraries out there, and most are affordable.

If couple pays for CD they have pd for right to own & listen to that music. Correct? Say folks are visiting with said couple. Visitors are not making $ during the visit 'because of' the purchased music that is playing, but they are hopefully enjoying benefits of listening. Weddings videographers (V) 'document' 2 people getting hitched. So the V is not making $ *because* of the music. They are making $ because they are documenting an event that includes the playing of music. I do NOT advocate copyright infringement but purpose use needs to be considered. What if we had to pay copyright fees to car companies when cars appear in videos "for visual enjoyment" like a limo? The T-Shirt photo a clear violation with expressed intent of stealing to profit the thief. Very different motivation. Thoughts? What about music being documented ?by default? while videotaping someone speaking of their life that happens to have a radio on in the background? How do we properly deal with that? Good stuff...

What if event videographers just paid a flat fee per year for the "right" to legally document music being played at events like weddings? A blanket coverage making the "player" of the music liable for properly using the music rather than shooting the messenger...or in this case the videographer. This would release "documentors" of liability when all we are doing is just that ..."documenting" events already in play whether we are there or not. Ideas?

If couple pays for CD they have pd for right to own & listen to that music. Correct?
Incorrect. They have the right to do anything they want with the copy that they have legally acquired, except those rights which are reserved to the copyright owner, i.e. the right to make copies, prepare derivative works, the distribution right and the right to public performance. Congress, relatively recently, enacted the AHRA, which precludes infringement liability for individuals who make copies for personal use.

Weddings videographers (V) 'document' 2 people getting hitched. So the V is not making $ *because* of the music.
Wrong, again. Wedding videographers don't come within the AHRA, because they are not copying the music for personal use, but for commercial use in the video which they sell. It doesn't matter whether they are making money "because" of the music. It only matters that they are violating several of the reserved rights, i.e. the right to prepare copies, the right to prepare derivative works and the distribution right.


They are making $ because they are documenting an event that includes the playing of music.
You're talking about something called "incidental reproduction." Do a search on my name and "incidental reproduction" and you'll find a discussion about copyright law in that context. The short answ3er is, the law is not consistent in this area, but, as a general rule, including short segments of music played live in the course of documenting an event _may_ not be deemed infringing, but including entire songs, or using music recorded live at the event as a soundtrack, almost certainly would.

What if event videographers just paid a flat fee per year for the "right" to legally document music being played at events like weddings?
That would be nice. I've already spoken with ASCAP's general counsel about this, but the organization has absolutely no interest.

We have the absurd situation where:

1. It is legal for a couple to hire a videographer to shoot and edit a wedding. Assume no music is on the video.

2. It is also legal for a couple to copy music they purchased for private listening onto a CD.

3. It is legal for the couple to watch the wedding video on a vcr or dvd player while playing that music on a CD player in the background.

4. It is however illegal if that music is copied onto the video itself.

I see nothing absurd about it. How would the wedding videographer feel if the couple only bought one copy of the tape and then made 10 copies for family and friends. Every wedding videographer I know gets upset about that. Their comments always run similar to "they're stealing my video" (meaning I'm losing money). Yet most wedding videographers have no problem copying music onto the tape they sell. Now, to me that's absurd.

Jeff,

If the music has been purchased by the couple they have every right to listen to it. They can make copies as long as they don't sell them. If the music is on a video also not for resale, what is the practical difference? No one is stealing anything. I am speaking ethically here. (Yes, I know the AHRA has not been tested in court regarding the legality of making copies on video. And, yes, I admit I am ignoring any transfer of custody between the couple and the videographer of the purchased music.)

If your wedding videographer friends are getting really upset about clients make copies then they must be mispricing their services. Most wedding guys and gals I know charge several hundred to several thousand dollars for shooting, editing and delivery of video or dvd, usually in several copies. An additional fee is usually charged if the client wants more copies at a rate which gives the videographer a small profit. If they are getting worked up over the copying fees they obviously aren't charging enough for the intial package. Or if they really have a problem they can pay for Macrovision protection which will prevent copying.

Rick, you've missed my point. It's not about what a videographer charges to make copies, or ways to prevent copying. It's about violating a law (videographer copying music to a video) and then getting upset when the customer (B & G) violates the same law by copying the videographers tape. They don't get upset when they take money out of someone else's pocket, but they sure feel ripped off when someone takes money out of their pocket. They can't have the law both ways.

The same law that is protecting the videographer's wedding tape is protecting my documentaries and the musician's CD. It's noble and just when it protects us, but it's absurd when it protects someone else.

Jeff,

I am talking very specifically about a set of statutes as applied to wedding videography. If you think that questioning one stupid application of a statute is an assault on the rule of law, in general, then continuing this discussion is a waste of time.

And no one is taking money out of anyone's pockets. Wedding video guys and gals would be happy to pay reasonable royalties to the artists in questions but the artists/record company's agents can't be bothered.

The record companies, by the way, have a history of not paying or underpaying royalties to the artists they represent, so if anyone is ripping anyone off it is the record companies who can't be bothered to take the videographer's money.

How the record companies pay royalties to their artists is irrelevant to copyright statutes and this discussion.

Wedding video guys and gals would be happy to pay reasonable royalties to the artists in questions but the artists/record company's agents can't be bothered.

The key phrase is reasonable royalties. The royalty payment system and process is in place and while wedding videographers may feel the fees are too high, they are what they are. You may feel the fees are too high, but that doesn't give you the legal right to take what doesn't belong to you. By that logic, if I don't like the price of Wal*Marts TV's I should just take it. After all their price isn't reasonable to me.

Rick, all I'm saying is I have an ethics problem with using the law to protect my work and then thwarting the same law to appease a client.

1. It is legal for a couple to hire a videographer to shoot and edit a wedding. Assume no music is on the video.

2. It is also legal for a couple to copy music they purchased for private listening onto a CD.

3. It is legal for the couple to watch the wedding video on a vcr or dvd player while playing that music on a CD player in the background.

4. It is however illegal if that music is copied onto the video itself.

It may not be illegal for _the couple_ to copy the music onto the video -- the AHRA permits some species of "personal use" music copying, though it's not clear whether it would extend to copying the music to video. It is not legal for the videographer/editor to copy the music, however.

Jeff,

At least read the thread.

A previous exchange between myself and Paul Tauger:

--------------------------------------------------------------------------------
For all intents and purposes there is no reasonable means for a wedding videographer to be "legal" - to pay the royalties and fees on copyrighted music so that he/she can put the music his/her client asks for in the video.
--------------------------------------------------------------------------------
I'm well aware of that....


There is no mechanism for a wedding videographer to pay royalties, so be so kind as to stop accusing honest hard working folks of theft akin to stealing TVs from Walmart.

The problem, though, isn't the law, but the fact that technological advances have resulted in situations that the law never anticipated. It's Congress' job to remedy these situations -- they did so with the AHRA, which had the result of turning millions of college students from potential felons to mere collectors. In my opinion, they made things infinitely worse with the DMCA (though, fortunately, there is evidently some movement towards revising it to make it less weighted towards the major content publisher/distributors.

The law isn't a static thing -- it grows and adapts as society changes. With the explosive growth in increased accessibility to video production that has taken place in the last decade or so, copyright law will simply have to change.

There is, I think, a wedding videographers association. That organization should invest some money in lobbying Congress to pass a "small commercial use" compulsory license fee, which would solve everything.

As I understand it, the foundation of current copyright statutes is based on laws enacted to protect the rights of piano roll producers for player pianos. Obviously times and technologies have changed.

In my, no doubt, highly biased view the record industry has succeeded in progressively accumulating rights that it has no right to, exceeding comparable protections in the publishing industry. Its attempts to block new technolgies and extort royalties from those that it could not block has been reprehensible. (The RIAA's recent attempts to claim royalties on used CDs strikes me as merely bizarre.) I certainly agree about the DMCA. I am not sure how one can reconcile the DMCA with the First Amendment.

I suspect WEVA, the wedding videographer's group, has just decided to lay low and muddle on. Attempting to lobby against RIAA is probably a losing battle under any circumstances. I think WEVA prefers to try to stay under the radar. I am told that there are competitions for best video and so forth at yearly WEVA conventions. I've never been but I am told that every one of the competitors invariably use copyrighted music.

As I understand it, the foundation of current copyright statutes is based on laws enacted to protect the rights of piano roll producers for player pianos. Not true at all. The codification of copyright began in Britain with the Statute of Anne, several hundred years ago. The U.S. implementation of copyright law was based on Britain's version, and was authorized by Article I, Section 8 of the U.S. Constitution. I don't recall when the first copyright statute was enacted, but the US had common-law copyright protection dating back to beginning of this country (common-law copyright was eliminated in 1978 -- it's all statutory now). Congress tinkers with copyright law constantly, and there have been numerous revisions and overhauls.

In my, no doubt, highly biased view the record industry has succeeded in progressively accumulating rights that it has no right to, exceeding comparable protections in the publishing industry. I agree, though they're not the only villains in the piece. All the corporate content producer/distributors are equally responsible. It was the movie studios, and, particularly, Disney, that lobbied successfully to have the copyright term extend to, I think, ridiculous lengths. You can also blame them, along with the cable and satellite TV companies, for the onerous provisions of the DMCA.

(The RIAA's recent attempts to claim royalties on used CDs strikes me as merely bizarre.) I haven't heard about this, but I don't see any way they can succeed. First Sale Doctrine generally trumps any of these, "I didn't sell you expression, I only licensed it to you" schemes.

I am not sure how one can reconcile the DMCA with the First Amendment.The DMCA's only relationship to the First Amendment is in the context of Fair Use doctrine, with which it clearly is in conflict. It is also in conflict with the AHRA. The changes to the DMCA that I alluded to earlier are, evidently, intended to resolve the conflicts.

Attempting to lobby against RIAA is probably a losing battle under any circumstances. It's Congress, and not the RIAA, that must be lobbied. A compulsory license is a creature of statute, and would provide a simple means of letting someone who wants to use protected expression in a specific context do so simply by paying a set royalty to the designated body -- no permission from the copyright owner required.

I think WEVA prefers to try to stay under the radar. I am told that there are competitions for best video and so forth at yearly WEVA conventions. I've never been but I am told that every one of the competitors invariably use copyrighted music. Well, you can't have it both ways. Either continue to wink at the law by copying music illegally, or call the attention of the lawmakers to the problem (and they might be receptive -- most of them got married, or had children who got or are getting married, and they all would like a wedding video with their favorite song on it). If WEVA chooses the former course, though, it is simply disingenuous to complain about the state of the law.

I wrote that sentence very badly. Of course the copyright statutes predate the founding of our country. I was referring (very unclearly) to the Supreme Court ruling of 1908 in favor of White-Smith Music Publishing Company against Apollo Co., maker of player piano scrolls, opining that piano scrolls were not copies and therefore did not infringe, which the Congress reacted to by amending the Copyright Act to include the "new" technologies such as piano rolls and sound recordings. Appropriate that what initiated the changes to the law were "new" technologies.

As far as WEVA goes, I am not a member and I can't speak for it. Lobbying Congress against the likely opposition of the RIAA hordes, seems to me like a bad bet. To my knowledge, WEVA is entirely silent on the issue of copyrighted music in wedding videos.

Rick, when I owned my production company I frequently purchased what was called "Sync Rights". I purchased them upon the advice of my intellectual property attorney. These rights are owned by the music publishers and are paid directly to them. I typically paid between $25 and $100. If the work was for a non-profit or I was donating my services (which I frequently do) many times the fee was waived. These rights allowed me to use an existing recording and synchronize visual images to them and onto another medium.

To the best of my knowledge these rights still exist and represent a reasonable way to pay the necessary fees. I always paid for them over the phone (with credit card) or they would invoice me.

I haven't had to purchase Sync Rights in over 8 years. I know there have been several revisions of the copyright laws since then. Paul, would these be applicable to wedding videographers producing tapes with images synced to music? Does anyone know what the going rate for Sync Rights is?

I haven't had to purchase Sync Rights in over 8 years. I know there have been several revisions of the copyright laws since then. Paul, would these be applicable to wedding videographers producing tapes with images synced to music? Does anyone know what the going rate for Sync Rights is?

Synchronization rights would be applicable to wedding videographers but, as I recall, are only half of the picture (it's been a long, long time since I was involved in this aspect of IP law). Sync rights are exactly what they sound like -- they permit a recording to be synced to a motion picture or video. However, if I remember this right, you still need to obtain rights to the underlying work it self. Since it's the music publishers who generally own them, you probably got everything all at once.

How about this situaion.... When I'm filming a wedding there is always music in the background - usually popular music that the DJ is playing. So its fine (legal) to have the music playing that was recorded on the actual video, but not legal to substitute the same background music for a more clear (copied from the CD) version?

Annie C

So its fine (legal) to have the music playing that was recorded on the actual video
Umm, no, it's not. Please read what I wrote about incidental reproduction _in_this_thread.

But theres no way to take the original background music out of the video without taking out whatever is being said at the time... If that is also a violation of copyright there is nothing most of us are going to be able to do about it.

I sure am learning alot about the subject though...

Annie C

If I am not mistaken you also need a mechanical license in order to "publish" the tape or DVD. I think this is where it all breaks down. Harry Fox sells licenses for no less than 500 copies which covers the music publisher, then there is BMI or ASCAP who represents the peformers and basically can't be bothered.

If this has changed or there is a new and easy way to do this I would love to hear it.

But theres no way to take the original background music out of the video without taking out whatever is being said at the time... If that is also a violation of copyright there is nothing most of us are going to be able to do about it. The law varies from jurisdiction to jurisdiction, and is by no means clear. However, generally, where the incidental copying occurs because of what is essentially a reportorial activity (this comes up most often in news), and only sections of the piece are recorded, it is not deemed copyright infringement. In other words, it is likely that, if a wedding videographer tapes the bride's dance with her father, and the entire song isn't used, it would not violate the law. If, on the other hand, a wedding videographer records an entire song played by the band or DJ with his/her video camera, then uses it as a sound-track, doing insert edits of other scenes, that would incur liability.

Note this, though: I'm not anyone's lawyer here, and none of this is legal advice. Particularly with respect to copyright law in the context of incidental reproduction, there is certainly no bright-line rule. In fact, there are very few reported cases that deal with this at all.

Since no one wanted to go to Google and see what I've already written on this, I've copied my post below:

. . . to the question, "Is it infringement if my video contains music played by the band at a wedding?"

Unfortunately, the answer isn't exactly definitive (and somebody owes me a beer! ;) ).

First, a disclaimer:

NONE OF YOU ARE MY CLIENTS. I AM NOT YOUR ATTORNEY. THIS IS NOT LEGAL ADVICE. I AM DISCUSSING AN ABSTRACT PRINCIPLE OF LAW THAT IS OF GENERAL INTEREST. NOTHING IN THIS POST IS A LEGAL OPINION. DON'T RELY ON ANYTHING
I'VE WRITTEN. CONSULT YOUR OWN ATTORNEY IF YOU HAVE A QUESTION ABOUT POTENTIAL LIABILITY.

Okay, with that said, (and please, read and heed!):

The particular legal doctrine at issue here is called "Incidental
Reproduction." Incidental reproduction occurs when, as the name implies, copyright-protected material is reproduced as an incident to another activity, for example, in a motion picture, an actor is shown reading a Time magazine or, as is of interest to everyone here, when a wedding videographer tapes the couple's "first dance" and, in doing so, records the music played
by the band or DJ.

When Congress codified the equitable doctrine of fair use, it gave some examples (which are not part of the statute, but are part of the legislative history, which is considered "persuasive" when construing the statute) when the fair use defense would apply. These examples included: "incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being recorded.' " 1975 Senate Report 61-62; 1976 House Report 65, U.S.Code Cong. & Admin.News 1976, p. 5678.

Unfortunately, there aren't a whole lot of decisions which deal with this subject, and they aren't consistent.

I've found two cases, Italian Book Corp. v. American Broadcasting Co., 458 F.Supp. 65 (S.D.N.Y. 1978) and US v. ASCAP, 1993 WL 187863 (S.D.N.Y. 1993), that come close to being on point. Italian Book involved a plaintiff songwriter who sued a television crew that videotaped a parade at which plaintiff's song was played. The Italian Book court held the parade videotape to fall within the "incidental and fortuitous" fair use exception. The ASCAP case which, apparently, dealt with royalty allocation and
collection by ASCAP, includes a reference to another unpublished decision in the same matter in which a magistrate judge held that fair uses, which included "ambient music incidentally picked up during news and sports broadcast" should trigger either a full-program ASCAP fee, and should not be included in ASCAP's incidental-fee category.

However, at least one court has rejected Italian Book, denying fair use when an entire song was broadcast, not as a news event, but as live coverage of a festival. See Schumann v. Albuquerque Corp., 664 F.Supp. 473, 477 (D.N.M. 1987).

Nimmer, a legal treatise on copyright which can be cited as persuasive authority in American courts, characterizes application of fair use doctrine in this context as "spotty." Also, bear in mind that Italian Book is a NY district court case, and isn't binding anywhere. ASCAP is also a New York district court case, but it is an unpublished decision, which renders it even less persuasive. Schumann is a New Mexico district court case and it, too, is not controlling authority anywhere.

So, where does that leave us?

Well, unfortunately, with very little guidance from the courts. Wedding videos are funny things -- on the one hand, they can be considered analogous to news, in that they report an actual event. On the other hand, the public interest in allowing greater lattitude to news organizations isn't present (or, at least, not to the same degree) for wedding videos. It's simply impossible to predict which way any given court might go -- the focus might
be on the commercial, non-news aspect of a wedding video, resulting in infringement liability, or it might find the fact of limited distribution and impact on the commercial market for the underlying work does, in fact, constitute fair use.

Remember that fair use is an _equitable_ doctrine which is a _defense_ to infringement. The "equitable" part means that it is a fact-specific doctrine; different courts may come to different conclusions based on seemingly minor factual variations. The "defense" part means, you won't know whether you're liable or not until you're actually sued and a court rules.

If I were advising a client, I'd probably recommend the following:

1. Get an express, i.e. written, non-infringement opinion from an attorney. A proper non-infringement opinion from competent counsel is, for all intents and purposes, prima facie evidence that infringement was _non-intentional_. This is important, both in terms of limiting liability if you are sued, and for number 2, below.

2. Get a policy of general liability business insurance which includes an "advertising injury" provision that is sufficiently broad as to provide coverage for an infringement action predicated upon inadvertent inclusion of copyright-protected material in the video. Note, though, that whether or not a given policy will protect someone in such instance is, in itself, a difficult question to answer, and the answer should be provided by an attorney (or, better still, by the insurance agent, _in writing_). Number
1, above, is important because these insurance policies only protect against _negligent_ infringements; intentional infringement are outside the scope of coverage.

3. It would seem from the case law that, the less use made of the protected original, the more likely it is to be found fair use incidental reproduction. Therefore, it's probably a good idea to avoid using entire songs. I can think of other ramifications as well. For example, if you do an L- or J-cut, the "incidental music" would be functioning more as a soundtrack than as an incidently and fortuitously recorded background to a specific event, so I'd limit use of "incidental" music to the actual event it accompanies.

I can't (and won't) tell anyone in this group what they should do. It is important to realize that this particular factual pattern, i.e. incidental reproduction of music in a wedding video, is far from settled at law; I'm not sure anyone can give a dispositive answer at this point. My personal inclination is that incidental music in a wedding video probably should be considered a "fair use." However, I don't sit on any appellate courts, so my personal inclination doesn't count for much. That is, however, the defense that I would raise if one of my clients were sued in this context.

Finally, remember that what I've written here is the product of about 10 minutes of very hasty research. I would NEVER counsel a client based on such a skimpy review of the law. This is a complex question that requires more than just a passing review before an informed opinion can be provided.

Now, who's going to buy me that beer? ;)

My understanding, from 15 years ago, was the Sync Rights covered subsequent copies. This may have changed and maybe Paul or someone else can comment on the validity of my comments. The example my attorney used was Sync Rights purchased for a scene in a motion picture. The rights extended to the copies used for showing the movies in theatres. Rights for reproduction to rental tapes or DVD's might be separate, I don't know.

If copies of the wedding tape are not included, then it would be up to the B & G to make copies for personal use.

My understanding of the mechanical license was that would be needed if I wanted to produce a CD of music. The Harry Fox Agency is actually the ones that suggested Sync Rights as applicable to my usage. A producer of mine contacted them to obtain rights to a song. They informed her to use Sync Rights and to contact the publisher. At that point I contacted my IP attorney and he advised me to buy the Sync Rights. But again, this was some years ago.

Jeff, I really don't know the answer to this, as it's outside the area of IP law in which I usually practice, i.e. copyright I know (though not in the specific context of film/video production), licensing, not so much.

If I was a wedding videographer, I would contact an IP attorney and get a clear view of your usage and the necessary rights you would need to purchase. Rick might be correct, in that a separate license would be needed to reproduce copies.

I also found ASCAP, BMI and Harry Fox Agency to be very helpful (I'm sure they all wanted my money). But Harry Fox Agency was very concerned that I purchase the proper license, even though they couldn't sell it to me.

My personal opinion is wedding and event videographers have a way to stay within the confines of current copyright laws and not totally alienate the B & G. Would they have to pay additional fees? Yes, and I would pass them on to the client by offering them a choice. Sure I can use that song, but it'll cost you $30 (hypothetical fee) for the license, or you can pick from these CD's that have free music on them (Buy Out music). If the song is that important to the B & G the cost will be insignificant.

So Paul...what town do you frequent for "cocktail hour"...I'M BUYING!!! Yup...you've just saved me a (excuse the language) a 'butt load' of potential grief and unnecessary worry over this whole music issue. I'm good friends with several local atty's...will get their advice on an IP person. So where can I send ya some green :-) You're a "cheap date" ...can ya 'feel the luv' hee hee hee. No seriously at the very LEAST I should buy ya a beer. OK folks everyone chip in. Let's keep this fella swimmin' in happiness. Let me know where to send the booze fund :-) Thanks & God Bless! Roze

Thanks for the offer, Roze, but no contributions are necessary. I'm in Southern California, but from time to time I do get out to North Carolina (I got my MFA at UNCG). Maybe sometime you can buy me that drink. ;)

So since it is not legal to pull music from a clients CD into a video, a potential "what if"

What if you brought the client in on the last day of editing w/ his/her CD's and have the client sit @ your computer and "enable" the audio track w/ all of their music (that you've already layed out). This way, the client, who may have legal recourse to "copy" the music is the one doing it, not the videographer.

Of course the AHRA is vauge about copying for personal use onto video AND this would theoretically (in my mind) put the liability onto the client (which would need to be clearly explained) - but would this be a possible solution?

Trying to find a happy medium

Paul