An Ethical Inquiry

[Dave Blackhurst]

This is the challenge - protecting your IP rights in case something "goes big" (like a BBC broadcast!?), vs. having a "fair and reasonable" use right for small limited distribution productions.

One has to have the right to control the use of their own property, including intellectual property. Determine who else is allowed to use it and for what purpose (Hey Joe, can I borrow your mower? vs. Hey Joe, I need to go rob a bank, can I borrow your car for an hour or two?) is a fundamental right.

Obviously there need to be "reasonable" boundaries, the problem becomes codifying (written law) vs. "case law" where lawyers (with no boundaries in a court setting) argue points to the extreme, vs "real world" practical situations. And of course your dealing with human nature... and there's where problems erupt.

[Steve House]

Originally Posted by Jacques E. Bouchard

I'll play devil's advocate here (not really) and argue that copyright laws are too stringent and restrictive for non-commercial applications. Joe Sixpack isn't going to market and sell his wedding video, or Junior's birthday party DVD.

I am stating this as an artist whose work is protected by copyright (screenwriter and filmmaker). I actually make a living from receiving royalties, but I don't think anyone should be penalized for, let's say, using an excerpt of my film or using a character I created (within reason).

RiP: A Remix Manifesto


J.

You said it yourself - you make your living off of royalties. Sure, Joe Sixpack isn't going to market his wedding video or birthday DVD. But the issue isn't Joe making his own video for his own private use and using your music in it. After all, who's to know and there's no loss to you, you've made your royalty off of the sale of the source material Joe has used. More to the point is a commercial wedding videographer earning his living by making a video FOR Joe and selling it to him. If the wedding shooter uses your work in his product, you deserve compensation - your labours are an integral part of creating the commerical value of the product the wedding videographer is selling. Take your creation out of it and the commercial value of the video drops. In a very real sense he is making money off of the sale of the (stolen) product of your labours and refusing to fairly compensate you for it.

[Dave Blackhurst]

Steve -
That's a bit of a stretch - Joe sixpack mixes it down with a song he likes vs. a videographer doing it for him... the videographer is being paid for the VIDEO, not the song. While people like to have a song they like, does it really matter what sound pad the videographer chooses?? Probably not really that much. There's LOTS of music out there...

Ultimately this is why some people have a problem with the inability to purchase at a reasonable price the right to listen to a song along with their personal video.

The entire licensing concept may well be outdated with modern digital reproduction. It's all just 1's and 0's now, creatively arranged. A videographer takes his work, maybe adds a few 1's and 0's from another artist and creates a derivative work of 1's and 0's...

This has been done in music with "samples", I've seen video montages... the real question is what is fair compensation?

Yes an artist should be allowed to profit from his/her work if people enjoy it enough (or it means enough to them) to pay for it. I think sometimes though there is an entitlement mentality that "because I created it, I can ask whatever I want for it and anyone who likes it/wants to use it MUST PAY!" I've worked with enough artists to see this sort of thinking (not to mention the mindset of corporate lawyers "protecting" "their artists") - problem is it doesn't WORK, make people pay too much, there's another artist down the street...

Making licensing/purchase reasonable and painless, and the artist benefits from more sales - sue everyone in sight, no one wants to buy your stuff - any wonder why the "music biz" went down the tubes??

[Steve House]

Originally Posted by Dave Blackhurst

Steve -
That's a bit of a stretch - Joe sixpack mixes it down with a song he likes vs. a videographer doing it for him... the videographer is being paid for the VIDEO, not the song. While people like to have a song they like, does it really matter what sound pad the videographer chooses?? Probably not really that much. There's LOTS of music out there...

..

You said it yourself - the client is paying for the video. I think you're looking at the video from the perspective of a photographer or DP who is capturing a visual record of an event. But the video is not just PICTURE with any old accompaning sounds, it's not a branch of photography; it's the juxtaposition of image and sound into a cohesive whole that is more than just a set of images. A film of anything - wedding, event, fictional story - is a classic example of where the whole is greater than the sum of its parts. The videographer is not being paid to just record some moving pictures; he is being paid to create a video program with music and other sounds combined with picture resulting in a new artistic expression. He is creating a derivative artistic work based in part on the creative output of another artist. Without that other artist's contribution, the work of the videographer would not exist in the same form and would not have the same impact on his audience. In fact, it is widely accepted that the specific sounds and music chosen for a production are much more important in shaping its emotional impact on the viewer than are the pictures. Replace the specific music with other material and the video is a totally different product. Remove the music all together and the resulting product is trivial and boring. The music used creates part of the value of the product the videographer is selling to his client and the creator of that value deserves compensation for his contribution.

Digital or analog, don't get the vehicle used to carry the physical copy confused with the artistic work itself. The digital revolution hasn't changed anything because the value of an artist's work doesn't depend on the container used to transport it nor the difficulty in reproducing copies. Indeed, digital hasn't obsoleted the concept behind licensing but rather it has strengthened its importance by making clear that the value of a song is in its sound and its emotional impact on the listener, not the physical object used to transport it.

You critisize the "entitlment mentality" and yet I think that mentality is perfectly valid. When you labour, you are entitled to the benefit of that labour, whether it is digging a ditch, shooting a picture, or writing a song. The results of that labour belong to you, not to the world at large.

[Jeremy Doyle]

Originally Posted by Steve House

The videographer is not being paid to just record some moving pictures; he is being paid to create a video program with music and other sounds combined with picture resulting in a new artistic expression.

The videographer is being paid to just record moving pictures. It is the editor who combines the video with music. This is not always the same person. And it's not always the editor who make the DVD that ends up being distributed. So who then is responsible for any copyright infringement. The producer who is responsible for putting all the pieces of the puzzle together. And that producer is the wedding couple who commissioned the work.

Originally Posted by Steve House

He is creating a derivative artistic work based in part on the creative output of another artist. Without that other artist's contribution, the work of the videographer would not exist in the same form and would not have the same impact on his audience.

Again the videographers work would stand alone. His job is not a derivative work. It's not like a music video where the song is playing over and over again well he's shooting.

Originally Posted by Steve House

Remove the music all together and the resulting product is trivial and boring.

Then your editor is not doing a very good job. Yes music can enhance a scene, but it doesn't become boring without it unless the editor is not doing his job.

[Richard Alvarez]

"Synchronization Rights" - the right to synchronize the song to images.

You have to pay for them.

Doesn't matter if you make a profit from it. If you use the music, without paying for the rights, it's illegal.

Wedding videographers are the 'authors' of the work they create. They will be held responsible for the resale of the product utililizing synch rights in the U.S. It's possible - theoretically - to pass off the liability, at least 'partially' to the couple as the 'producers' - but I'm thinking the court would have to see this liability assumed in writing. (This also opens up the whole 'employee' - independant contractor - can o' worms. Did the couple also hire the editor? Sit in on the editing sessions? Dictate the time and duration spent in the edit? Pay for the equipment used to create the video??? See how complicated passing liability as 'producer' can be?)

It's really not that hard to understand. It's theft. I realize people don't like it, but it's the simple truth.

Untill or unless the law changes.

[Paul R Johnson]

Returning to the BBC non-payment for copyright, there is some confusion with satellite broadcasts intended for reception in areas with different rules, however, from my own dealing with copyright and the BBC they are not always as 'accurate' as we think. I do a fair bit of production work, and was working in Northern Ireland on a live outside broadcast of part of a theatrical show. The musicians wanted extra payments for their clearance of the copyright on their performance, and the composer also wanted extra fees for use of his music - which they did agree to in the end and after much prodding from me, the musicians and composer got their money. However, being a sneaky person, I'd also recorded the off air broadcast, and discovered that they had totally without permission or payment used some additional items form our show by cutting to the show, in the section before, as a teaser. We're not talking lots of money, about £70 for the minute or so they used (per person, so 7 musician = £490) but they didn't even mention the bit the had for free.

Broadcasters will try to get away with it. It may be worthwhile, if you have the date and time, to simply invoice the producer and see what happens. I guess here in the UK you could even take out what we call a County Court Summons - if you have something similar and cheap to do where you are?

[Steve House]

Originally Posted by Jeremy Doyle

The videographer is being paid to just record moving pictures. It is the editor who combines the video with music. This is not always the same person. And it's not always the editor who make the DVD that ends up being distributed. So who then is responsible for any copyright infringement. The producer who is responsible for putting all the pieces of the puzzle together. And that producer is the wedding couple who commissioned the work.
...
Again the videographers work would stand alone. His job is not a derivative work. It's not like a music video where the song is playing over and over again well he's shooting.
...
Then your editor is not doing a very good job. Yes music can enhance a scene, but it doesn't become boring without it unless the editor is not doing his job.

You are confusing a wedding or event videographer who is retained to create and produce a completed product with a camera operator who is hired as a technician operating a certain piece of equipment. The B&G are customers, not the creators.

The music doesn't have to be playing while he is shooting for the final work to be a derivative work. It doesn't mean you're shooting to fit to the music. Derivative means that another copyrighted expression has been incorporated as a material part of the work in question. As a rule of thumb, if it's put there on purpose you've got to license it.