Music Copyright - a different question

[Travis Reese]

From reading the threads here and from personal knowledge I know that I can't make any type of production and use someone else's copyrighted music to score it without their permission. I have a slightly different question however. What if I'm shooting some type of reality video or documentary that takes place in a club or a bar? If there's music at the club or bar playing in the background how does that work? Would I be violating their copyright by including that footage where their music could be heard even if it's incidental such as the shot I described?

[Steve House]

The status of the need for clearance of such incidental inclusion is far fro clear. You really need to sit down with an attorney who can review all the exact details of your specific situation and usage.

[Jimmy Tuffrey]

Very tricky.
Most doco makers try to get the radio/tv/background music turned off to avoid this area.
Obviously not possible in club-land..

[Chris Harris]

It's silly maybe, but even for home movies, I try and turn off the TV/radio.

"Little Billy is taking his first step! Quick, get the camcorder!"
"Not until you turn off that radio!"

OK, well not to that extent...

[Bert Smyth]

There was actually an interesting case where (sketchy facts coming..) if I remember correctly the record label that represents Prince sent a letter to a Mom who had posted a YouTube video of her infant son dancing to a Prince song. They told her it was copyright infringement and I guess she got pretty upset about it. A bit of twist to the story is that apparently all they asked her to do was remove the video. She could have reposted without the Prince song. The news story ended by saying she was suing the record label. What on earth for, I have no idea. One aspect that might be relevant to your situation is that the record label hires people to just search the internet looking for any infringement cases. That's how they found her video. They said that they send thousands of "cease and desist" letters all the time. I think when you go to buy a $5000 camera so you can shoot some docs, its safe to say you could put aside $50 million dollars to hire the team of lawyers you'll need to go through every possible legal ramification that could come from filmming those ducks in a pond if you get my meaning... People violate copyright all the time. The get sued too. People who don't violate copyright or have "permission" or "releases" get sued as well. It all comes down to:
-how is the copyrighted material being exploited by you? A video that's free to download on the web, that has a band playing a song in a short scene, is a lot different than using the "Solaris" soundtrack on a video that is for sale. That's not made up by the way. There was a video posted here a while back, than used the "Solaris" soundtrack, without permission, and everyone just seemed to think it was great... "great music btw!!". When I asked about the soundtrack, I was told to "lighten up". Interesting how in one forum its "get a lawyer" and the next its, "oh, who cares!".
-the other is how much money do you have? This is different from usage, in that if you have deep pockets, like Prince's record label, then you might get sued for simply sending out a letter informing someone of their copyright infringement.

You know all these wedding videos where people are just putting their favorite song on the DVD? Well, that's not legal either. I once worked on a video where we actually used footage from a Tom Cruise film for a corporate event, in a city where there was a lot of filming going on. I told the client I would not do those edits, so they just added the scenes in to the almost finished product. And yes, they got away with it. They also used music without permission.

If you're not a well-known filmmaker, and your video isn't going to be distributed, then chances are you're not going to get sued. If you are a well known filmmaker, and your film is going to get distributed, well, chances are you're going to get sued sooner or later anyways. Doesn't make sense, but its true. Most bigger budget movies have some sort of legal back-end coverage for the inevitable.

[Travis Reese]

Thanks for all the responses. I appreciate the insight. I'll check with our lawyers to see what they have to say about it.

[Paul Tauger]

Originally Posted by Bert Smyth

There was actually an interesting case where (sketchy facts coming..) if I remember correctly the record label that represents Prince sent a letter to a Mom who had posted a YouTube video of her infant son dancing to a Prince song. They told her it was copyright infringement and I guess she got pretty upset about it. A bit of twist to the story is that apparently all they asked her to do was remove the video. She could have reposted without the Prince song. The news story ended by saying she was suing the record label. What on earth for, I have no idea.

Possibly, declaratory judgment of non-infringement, assuming the Mom thought she had a fair use defense (based on your description, I doubt if she did).

One aspect that might be relevant to your situation is that the record label hires people to just search the internet looking for any infringement cases. That's how they found her video. They said that they send thousands of "cease and desist" letters all the time. I think when you go to buy a $5000 camera so you can shoot some docs, its safe to say you could put aside $50 million dollars to hire the team of lawyers you'll need to go through every possible legal ramification that could come from filmming those ducks in a pond if you get my meaning... People violate copyright all the time.

There are plenty of IP attorneys who can vet a production for a few hundred dollars -- a mere fraction of the production budget, but an expenditure that can head off significant future problems. Why not spend a little bit up front to avoid spending a bankrupting amount at the end?

The get sued too. People who don't violate copyright or have "permission" or "releases" get sued as well.

Not as often and usually not for the same reasons. Think of a license as an insurance policy against litigation.

It all comes down to:
-how is the copyrighted material being exploited by you? A video that's free to download on the web, that has a band playing a song in a short scene, is a lot different than using the "Solaris" soundtrack on a video that is for sale.

Not really. I've written about this a lot here, so I'll keep it short. Content owners brings law suits for a variety of reasons, but rarely, if ever, because they actually want to recoup money from the infringer. My clients will, frequently, sue relatively minor infringers specifically because (1) the suits are easy to win because the minor infringer doesn't have the resources to adequately or aggressively defend the action, and (2) it sends a strong message to both competitors and other potential infringers. As an example, a few years ago I obtained a 3.5 million dollar judgment against a relatively small infringer of one of my clients. This guy will never be able to satisfy the judgment (which I will renew every ten years, effectively making it impossible for him to ever own any significant property in his name). Since obtaining this judgment, my client has not been troubled by any more knock-offs which, until the litigation, had been a chronic problem -- a strong message was sent and, evidently, received. Don't assume that, just because you are small fry in a great sea of infringement, that you are immune to suit.

That's not made up by the way. There was a video posted here a while back, than used the "Solaris" soundtrack, without permission, and everyone just seemed to think it was great... "great music btw!!". When I asked about the soundtrack, I was told to "lighten up". Interesting how in one forum its "get a lawyer" and the next its, "oh, who cares!".

I suspect that, unlike here, the responses you got in the other forums weren't from intellectual property lawyers.

-the other is how much money do you have? This is different from usage, in that if you have deep pockets, like Prince's record label, then you might get sued for simply sending out a letter informing someone of their copyright infringement.

Nope. As long as the cease-and-desist letter doesn't contain a direct allegation of infringement and/or a threat of litigation, there is no standing to bring a declaratory judgment action, which is the only basis upon which suit could be brought. That's why you have a lawyer write the cease-and-desist letter. I know just how close to the edge I can take the letter without crossing over into dec. judgment territory, and I'm very careful about the language that I use (true of all lawyers who do these things).

You know all these wedding videos where people are just putting their favorite song on the DVD? Well, that's not legal either.

Probably not legal. If anyone here ever gets sued for that, I'll ask my firm if I can take the matter pro bono, because I think there is a strong fair use argument that can be made.

If you're not a well-known filmmaker, and your video isn't going to be distributed, then chances are you're not going to get sued.

Not necessarily. See above.

With respect to the OP's question, do a search here on my name and the term "incidental reproduction." I've written about often, though I don't think the OP will be satisfied with the answer.

[Travis Reese]

Sorry for posting this in the wrong forum originally. I never even thought to look at this forum called "Taking Care of Business." Now that I know the term incidental reproduction I've found all kinds of great, albeit indeterminate, information here.

[Bert Smyth]

Paul, I'll remove my post with this to say... Let me assure you, you can be sued. Anyone CAN sue Anyone. Period. In reality it just comes down to what are you going to get out of it, and will it hurt you to do it. In otherwords, go ahead and sue someone without cause, and you may find yourself being sued in return, and ultimately paying for their costs to defend your unjust suit and more.

The woman in the story DID bring a suit against the label, so I don't agree with your "nope".

I realize you are an expert, but PLEASE, don't break down every little thing, item by item, quoting every single thing I posted. It just makes me feel that I shouldn't post. This forum is not the place to get legal advice, we're just spit balling here. If you feel you need to "wrangle" by quoting every little detail of someone's post and counter point it, then maybe you need to talk with Chris about having your own forum where only you respond, because the message I get when I see your post is "don't post here". Your response to my post, however intended, is an absolute textbook example of "trolling".

PS, it seems I can't remove my first post, but feel free to.

[Paul Tauger]

Originally Posted by Bert Smyth

Paul, I'll remove my post with this to say... Let me assure you, you can be sued. Anyone CAN sue Anyone. Period. In reality it just comes down to what are you going to get out of it, and will it hurt you to do it. In otherwords, go ahead and sue someone without cause, and you may find yourself being sued in return, and ultimately paying for their costs to defend your unjust suit and more.

If the original suit reaches the threshold of malicious prosecution or abuse of process, you're absolutely correct.

The woman in the story DID bring a suit against the label, so I don't agree with your "nope".[/quote]As you note, anyone can sue anyone anytime for anything. However, based on your description, the only possible tenable cause of action would be for declaratory judgment. Perhaps there's more to the story.

I realize you are an expert, but PLEASE, don't break down every little thing, item by item, quoting every single thing I posted. It just makes me feel that I shouldn't post. This forum is not the place to get legal advice, we're just spit balling here.

This forum is read, primarily, by professionals -- the concerns in this thread aren't merely theoretical and misunderstandings about potential liability can have very serious consequences. The OP's question was, specifically, a legal one -- one that's been discussed here a number of times and, unfortunately, a particularly sticky issue given the number of documentary and wedding videographers who read dvinfo. I also apologize if you think I'm breaking down every little item -- it's just my posting style and, at least in my mind, makes it more of a conversation.

If you feel you need to "wrangle" by quoting every little detail of someone's post and counter point it, then maybe you need to talk with Chris about having your own forum where only you respond, because the message I get when I see your post is "don't post here". Your response to my post, however intended, is an absolute textbook example of "trolling".

PS, it seems I can't remove my first post, but feel free to.

If it's all the same to you, I'd just as soon not (and, for what it's worth, I think your post (1) wasn't entirely off the mark, and (2) certainly has value for the forum and for dvinfo.net). My role around here is to offer what general legal advice I can (obviously I can't offer specific advice). Most threads, I just leave alone as the quality level of the spit balling is pretty high and people usually get it right (and, of course, I stay out of the purely-business threads completely). Occasionally, I'll jump in if I think a legal point needs clarification. That's all I've done here -- nothing personal about it.

[Allen Plowman]

Originally Posted by Paul Tauger

My role around here is to offer what general legal advice I can (obviously I can't offer specific advice).

If I may ask, I am new to the forums. are you employed by the forums? and just what is your legal background? I am interested in the legality of the copyrights. you gave advice insinuating a legal background, without stating if you have one. do you specialize in copyright laws? I have already had at least one of my videos purchased by a firm that specializes in finding copyright violations. ( I was not in violation)

[Paul Tauger]

Originally Posted by Allen Plowman

If I may ask, I am new to the forums. are you employed by the forums? and just what is your legal background? I am interested in the legality of the copyrights. you gave advice insinuating a legal background, without stating if you have one. do you specialize in copyright laws? I have already had at least one of my videos purchased by a firm that specializes in finding copyright violations. ( I was not in violation)

I'm not employed by dvinfo.net. I'm a co-moderator of this forum, and do it as an extension of my interest in video, which is how I came to dvinfo in the first place. I'm an intellectual property attorney who practices IP litigation and licensing for a major law firm. As this activity is extra-curricular for me, I won't name the firm, but you can look me up easily enough on Google if you're interested.

[Richard Alvarez]

AS someone who is MARRIED to an IP attorney, I can appreciate Paul's approach to responding to legal commentary on this forum.

My wife, who has a background in theatre and arts, went to law school to become an IP Attorney. She used to comment that she felt like they had stuck her head in a pencil sharpener, to 'narrow her mind' even as they sharpened it.

For the most part, people post on these forums for advice, and information in technical aspects. "How do I do this with my Camera/NLE?" "Where can I buy a good XYZ?" "Anyone else have this problem with this piece of gear?" And of course, lots of beer batter over the quality of films.

Bad or erroneous answers to technical questions, can usually be sorted out fairly quickly here, because of the wide base of users... who can offer counter experience to the bad info. We've got several professionals at various levels of production experience whose advice is like Gold.

Paul is the only lawyer who has graciously offered to weigh in on the occasional legal thread... usually to set the record straight if it tends to veer off course in a direction that could cause someone some serious financial and legal harm.

The method of breaking the post down, and addressing it point by point IS what makes his posting so valuable. It is this sharp, critical LEGAL analysis of a post, that allows others to see how the reasoning of the poster has been correct in some areas, and off track in others. It is the winnowing of facts from fiction or myths, that helps others understand the reality of the legal world that can, and WILL jump up to bite us on the a$$ if we're not carefull.

As Paul will often point out, he is NOT practicing law in this forum,he is not representing the forum, or anyone who specifically posts. He is simply advising us on the actualities, the 'real world' practical legal prinicipals that are out there.

I value his contributions, and welcome his carefull cool critical analyisis. I certainly dont take his comments personally, and urge anyone who might find themselves on the end of his legal critiques, to accept them in the gracious and friendly professional attitude in which they are offered.

[Greg Quinn]

Originally Posted by Paul Tauger

My clients will, frequently, sue relatively minor infringers specifically because (1) the suits are easy to win because the minor infringer doesn't have the resources to adequately or aggressively defend the action... As an example, a few years ago I obtained a 3.5 million dollar judgment against a relatively small infringer of one of my clients. This guy will never be able to satisfy the judgment (which I will renew every ten years, effectively making it impossible for him to ever own any significant property in his name)

Am I the only one who has a problem with this?

[Paul Tauger]

Originally Posted by Greg Quinn

Am I the only one who has a problem with this?

What is your problem with it? You understand, this defendant was an egregious infringer. He was a former employee of the plaintiff who was selling an almost verbatim knock-off that he advertised as, "just like the [name of plaintiff's product]." You don't get a better case than this. If you want to get an idea of the volume of his sales, you can, roughly, divide the judgment by three (the court awarded exemplary damages because of the blatant nature of the infringement).

Do you think that, because he didn't have the money to satisfy the judgment, he shouldn't have been sued?