An Ethical Inquiry

[Jon Michael Ryan]

Not to beat a dead fern, but I'd like to hear the opinions of the DV info community on the thoroughly-discussed, frequently-disregarded issue of licensing music for use in film and video. I'll skip a dissertation on the Law, what the law mandates, and what the laws surrounding rights and privileges actually state. If you care, you've already looked into it. If you don't, you'll either do it soon or never touch the books. I'm even going to skip a treatise on the ethical responsibilities of the business-filmmaker (same scenario: if you care, you're doing your best to uphold the law's request). Intro complete.

Here's my blurb (hopefully, the origin of your feedback): I'm tired of running across videographer-types in my community who skirt the licensing costs (and rights acquisition) for their projects. And not just projects, but demo reels. I can accept that people play shady business in all industries "behind the scenes," but many companies (I'm talking wedding-types) seem to waltz around the risk and use whatever, simply citing the artist in copy or in the video. I recognize that no one wants a title card full of licensing proof, but I wonder: how many of these companies are legitimately using the creative enterprises of other artists for their own gain (and without compensation to the artists)?

I can't help but feel I'm entering a spiraling conversation on human nature; maybe this conversation goes nowhere, or maybe my thoughts are too jumbled to be clear. I'm part of a small start-up that is carefully climbing its way into a particular niche we'd like to occupy in our community. Weddings help pay bills, and there's no need to ignore that. But clients want their favorite music, minus the cost. So, when "established" wedding-type companies create a precedence by using popular music with no adherence to licensing, filmmakers like myself suffer because we refuse to use music without rights to do so (the catch here is that none of our clients have wanted to pay licensing costs; I understand the client has a large role in this). So, why not go to the guy who gives you what you want? The situation irritates me.

I'd like to rekindle a conversation that is extremely relevant in our industry as digital filmmakers and videographers.

[Chris Hurd]

Moved from Open DV to Taking Care of Business, where we have a myriad of existing discussions on this topic (but which one to merge it into...?)

[Shaun Roemich]

Well, let me put it to you this way: the very specific reason I don't do weddings AT ALL is because of the legal implications. If I made an extra $15-20k a year and had to lose sleep at night over whether I would get sued by either: an overzealous music industry making examples out of grannies and videographers OR an industry protecting electronic intellectual property rights, I wouldn't deem the cash "reward" adequate for my loss of sleep.

Just like videographers undercutting each other, I feel that videographers that use either illegal unlicensed music or software without regard for the legalities of their actions are ruining it for everyone. There is no elegant solution, at least in North America but that doesn't make theft right either. I'd love to see the day when there is a sliding scale for music usage licensing (although I'd support much higher license fees than most wedding clients or videographers would likely support) AS LONG AS the recording artists themselves (and the FINANCIALLY INVESTED business parties that support them during development) reap the financial benefits.

[Lori Starfelt]

I know that magazine television shows can use whatever music they want in news stories - as long as there is no money changing hands or any products being sold. I know this because my husband used to edit for WJZ tv in Baltimore and that was one of the things he did as an editor. He worked as a segment director on Howard Stern's first pay-per-view special and there was a short that Howard wanted him to shoot based on a sketch they did on the radio show. They used a particular piece of music on the radio but would have had to pay rights for it to use in the pay-per-view show. So it was legal to use it on the radio show for the skit without paying, but not legal to use it on the pay-per-view special. I suspect that wedding videos, because they are viewed only by the private family come under fair and free use statutes - like the use of music in broadcast magazine stories does.


Your kinda like the dance club owner who wants to avoid paying recorded music in his club. When the music companies come up with a payment scheme that reflects the economic realities of someone using a song in their wedding video or demo reel, then you can reasonably expect people to pay for it. But right now, there is no bridge available from the music to the end product in those cases.

[Chris Davis]

I'm with Shawn. Once I became aware of the illegal nature of music expected in wedding video, I stopped shooting weddings (actually that reason came second to the fact I didn't want to work weekends!) So now I diligently make sure my productions are 100% legit.

Whenever this topic comes up, you'll typically get a response that basically says "If I don't understand the law, I won't follow it." Of course, nobody actually says that, but they'll offer excuse after excuse and point to other venues/industries where copyright music is used (nightclubs, news, store background, etc.) and assume because X does it, I can too.

I do get tired when I see other projects from local videographers and the client is just gushing over them, and all I can think is "your video violates at least a dozen copyrights..." I'm talking about business video too, not wedding video. I've paid over $1k to build my royalty-free music library, and Joe Blow Video pays 99 cents on iTunes.

[Steve House]

Originally Posted by Lori Starfelt

I know that magazine television shows can use whatever music they want in news stories - as long as there is no money changing hands or any products being sold. I know this because my husband used to edit for WJZ tv in Baltimore and that was one of the things he did as an editor. He worked as a segment director on Howard Stern's first pay-per-view special and there was a short that Howard wanted him to shoot based on a sketch they did on the radio show. They used a particular piece of music on the radio but would have had to pay rights for it to use in the pay-per-view show. So it was legal to use it on the radio show for the skit without paying, but not legal to use it on the pay-per-view special. I suspect that wedding videos, because they are viewed only by the private family come under fair and free use statutes - like the use of music in broadcast magazine stories does.


Your kinda like the dance club owner who wants to avoid paying recorded music in his club. When the music companies come up with a payment scheme that reflects the economic realities of someone using a song in their wedding video or demo reel, then you can reasonably expect people to pay for it. But right now, there is no bridge available from the music to the end product in those cases.

Your interpretation of the reason behind your husband's experinece is, I believe, incorrect. The music could be played on the radio show because that was a performance covered under the ASCAP blanket licensing. But when synchronization to images as a soundtrack in a video show is NOT a performance but rather the music is being incorporated into a derivative work carrying it's own copyright. That requires separate synch and master use licenses over and above the broadcaster's ASCAP performance license. The important part is not that the show was to be pay for view, it's that the music was being used in as part of the soundtrack of a video program and that's a different license than merely broadcasting it as music.

It is the act of copying the music and incorporating it into a new production where it is juxtaposed with images that makes it illegal to use unlicensed copyrighted music in a program you create for and sell to a client. The fact that they are viewing it for their personal use in the privacy of their home does not mitigate that. After all, the purchaser of a pirated movie DVD from under the counter at the corner convenience store is also watching it for personal use in the privacy of their home. You, the videographer, have still made the copy and transfered it to a third party. It no longer falls under the personal use of the person who made the copy. Sorry, but such uses are not covered under the fair use doctrines and AFAIK courts have never ruled that they do. And the whole Napster thing made it clear that it makes no difference whether money changed hands or the copies are transferred for free.

[Paul Mailath]

Originally Posted by Jon Michael Ryan

how many of these companies are legitimately using the creative enterprises of other artists for their own gain (and without compensation to the artists)?

I'd like to rekindle a conversation that is extremely relevant in our industry as digital filmmakers and videographers.

I'm in Aus and have a licence to use most music for this purpose, but NONE of that licence fee goes back to the artist - it goes to the licensing body. I don't know anyone that's been asked "which songs have you used?, we'd like to give those bands some extra cash" I guess that makes me legally correct but morally incorrect.

You're not 'rekindling' - this subject has been done to death, and there are still a couple of current threads. I'm guessing that the majority of people reading these and not replying are engaged in the activity anyway - rather than beat them over the head with the moral stick, I think your time (and all of us) would be better spent discussing a campaign to change the law.

[Eric Mayrand]

Some brides are asking to have their stuff posted online or doing it themselves. YouTube has a process to identify pirated music and remove it rendering a posted video useless. Maybe some videographers continue to use popular music without license because they haven't been get caught, yet. The supporting text information on an internet video posting might identify the production company who did the deed!

[Chris Davis]

Originally Posted by Eric Mayrand

YouTube has a process to identify pirated music and remove it rendering a posted video useless.

Not only does the automated system remove the audio from the posted video, it sends an email to the rights holder or their representative (usually the record label.)

I will not be surprised in the future if videographers start receiving invoices and/or legal papers from the RIAA when they start using such technology in a web crawler.

[Chris Davis]

Originally Posted by Paul Mailath

I'm in Aus and have a licence to use most music for this purpose, but NONE of that licence fee goes back to the artist - it goes to the licensing body. I don't know anyone that's been asked "which songs have you used?, we'd like to give those bands some extra cash" I guess that makes me legally correct but morally incorrect.

Actually, through random surveys and some complicated statistical models, part of your royalty fees are distributed to the artists and rights holders. The details are available on the ARIA/AMCOS website.

Interestingly, the ARIA/AMCOS videographer license only allows distribution on DVD, VHS and CD-ROM and does not allow posting on the internet.

[Lori Starfelt]

I've written ASCAP and BMI to see what kind of licenses they have for such use and how much they cost. All of the material I can find on line addresses public use of the songs. None of it addresses the use of a song in a video designed only for private use. ASCAP does have a license for video services, but I haven't found any information yet about that contract.

We'll see what they have to say.

[Bill Davis]

Who knows, maybe there's hope on the theoretical horizon.

Not long ago, it was simply impractical for rights holders to both protect their intrinsic rights to benefit from their creative work AND license their work to individuals without significant overhead and hassle.

Then Steve Jobs changed everything.

I'd argue that it wasn't so much the iPod as a stand alone hardware device (there were other MP3 players around when the iPod made it's debut) - but rather the COMBINATION of the player, the internet tethered Mac, (then quickly the PCs) and the iTunes Music Store Software Service all working as a SYSTEM to allow the simple, easy and satisfying ability to pay a fair price for LEGAL downoading of a tune - with royalties properly shared - that made the whole thing take off.

Perhaps someday rights holders will wake up and realize that if they'd just get their butts in gear and sit down and establish a similar service where for TEN or even TWENTY times the iTunes 99 cent model, they could grant a limited use license to sync their IP to derrivitave works like wedding videos and corporate shows, they could generate yet another MASSIVE legal income stream.

I'm not hopeful, however. Once Jobs succeeded so massively with his vision of "let's make it easy to do it legally and honor the rights owners) all the "also rans" jumped right back to their typical approach of looking at the problem not thinking of how to ENCOURAGE legal, licensed use of their property - but rather how to keep their legal teams well employed OBSTRUCTING, as well as they can, all uses except those they hold in tight control.

I'm all for competition in business. Funny tho, how when one team shows the world that encouraging legal use is actually more profitable than an attitude of discouraging illegal use, nobody's ready for that.

Silly, really.

[Stefan Sargent]

I'm not the right person to chip in here as I've never made a wedding video BUT I use music all the time in my productions.

Here's a true story.

In 1970 I was asked by Barclay's Bank UK to make a film about student life at Warwick University. It was a film that had actually been conceived by one of the under grads. and i was bought in to complete his concept. The kids were all listening to the Beatle's "Abbey Road" LP which had just come out. "Why not use Beatle's music in the film?" I asked. "You'll never get permission." The doom seekers replied.

I wrote a handwritten letter to the Beatles' publisher, Dick James. He replied saying that "he had spoken to the Beatles" and we could use their music from "Abbey Road". He suggested the standard UK MCPS rates - about $500 for unrestricted, all tracks, use.

O.K. Things have changed. Today you'd need a more formal contract from the publisher and clearance from the record company. But these deals are still possible - maybe not for Beatles' music but there's plenty out there.

For my new documentary Pinot: Escape from Wall Street I wanted to use some jazz music. One email to the publisher and I was in. I suggested a fee that was affordable. We wound up chatting on the phone. He forgot to send me a contract. After a few weeks, I rang again. He halved the agreed price.

These days, if I making a corporate I use music from Digital Juice. Their discs are dirt cheap and the music is excellent.

Don't steal. A friend of mine used "Sound of Music" clips for a salesman's conference video - he thought it will only be seen once by a few salesmen. His client was so delighted with the video he entered it into an video award competition. You can guess the result.

Stefan Sargent

[Steve House]

Originally Posted by Lori Starfelt

I've written ASCAP and BMI to see what kind of licenses they have for such use and how much they cost. All of the material I can find on line addresses public use of the songs. None of it addresses the use of a song in a video designed only for private use. ASCAP does have a license for video services, but I haven't found any information yet about that contract.

We'll see what they have to say.

ASCAP, BMI, and SESAC are performance rights organizations and do not deal with the sort of licenses videographers and filmmakers need - their licenses deal with radio and TV airplay, concerts and stage productions, club and DJ performances, music-on-hold, etc. Harry Fox Agency used to clear sync licenses but they no longer do. Now you have to deal directly with the copyright owners and there are two different licenses you must obtain. First you need a "synchronization license" which comes from the copyright owners of the words and musical notes, typically the composers and the music's publisher. If you want to use the song "Stardust" you get the sync license from the estates of Hoagy Carmichael and Parish Mitchell or whoever the rights have been sold to by them. That entitles you to use the lyrics and melody they created and incorporate it into your production. But note, that DOES NOT give you the license to use any particular recording - the sync license by itself would only allow you use it by making a new recording. Now if you want to use the classic recording of "Stardust" by Frank Sinatra and the Tommy Dorsey Orchestra, you also have to obtain a Master Use license from the copyright owner of the original recording, usually the original record label or its corporate descendants. The fees for all this are negotiable and the copyright owners are under no obligation to grant a license at all if they don't wish to. At the present time, the most practical approach is to go through a musical rights clearance service of which there are a number around, as they have good databases of just who to contact for what song. Whether any of them would want to deal with wedding videographers is anyone's guess.

[Richard Alvarez]

Jon,

It sounds like you're frustrated - because others might benefit financially from breaking the law, while you feel you suffer financially by following it.

Well, yes... that's generally true for most illegal activities. The fact of the matter is, crime DOES pay. The chance for getting caught at breaking almost ANY law is statistically low - from speeding to robbing banks.

It's also true for the illegal use of copyright material.

Now, speaking as someone who is married to an IP attorney - I can say with certainty - that there are people out there, LOOKING for violations. Actively pursuing individuals who 'steal' IP in various stages. It's not a pretty picture when you're caught red handed.

Laws are like locks. They won't stop a serious thief, they are there to keep honest people honest.


Honestly.