Can I transfer the liability to the Client

[Peter Moore]

"I've said, for some time, that my belief is that using music from a legally-acquired commercial CD on a wedding video should come within fair use doctrine "

I agree with you 100% as far as the SHOULD. :) That is, of course, if it's for personal use of the client only. One thing I also wish with respect to distributed material is that there was an easier way to acquire sync rights to commercial recordings. There's an easy way to get re-recording rights, why not sync rights? Independent filmmakers have to go through hell trying to acquire such rights.

[Dan Brown]

With respect to sync rights and the fair use doctrine, here is a thought, which might pass the equitable 'sniff' test if not the statutory and case law (apparently unevolved to this particular issue).

IDEA (Not legal advice).

If the client requests partiuclar music, ask them for two things. First, they bring you an unopened original recording from the artist(s) of their choice, with a sales receipt. Second, they sign a waiver stating that they will not sell copies of the wedding video to anyone, ever. Then, you transfer the client's music from the client's CD to the client's video. Retain the original CD's and receipt in your files, with the signed waiver, and a notation as to the new, unopened recordings.

I do patent and trademark work, no copyrights, so I'm no expert in this area of law. But, I'd be interested to hear Paul T's reaction to this idea.

[K. Forman]

Dan- You are the one being PAID to use the material. Therefore, it has been re-sold, and the artists and license owners are entitled to their share.

In theory, you aren't even allowed to use copryrighted music for your own projects. Selling videos with copyrighted music is not allowed.

[Paul Tauger]

If the client requests partiuclar music, ask them for two things. First, they bring you an unopened original recording from the artist(s) of their choice, with a sales receipt. Second, they sign a waiver stating that they will not sell copies of the wedding video to anyone, ever. Then, you transfer the client's music from the client's CD to the client's video. Retain the original CD's and receipt in your files, with the signed waiver, and a notation as to the new, unopened recordings.

I do patent and trademark work, no copyrights, so I'm no expert in this area of law. But, I'd be interested to hear Paul T's reaction to this idea.

I'm not sure what retaining the CD accomplishes. I think this use constitutes fair use based on the four factor test, of which the one given the most weight is effect on the market for the original (there is, obviously, none).


There is _no_ way to minimize liability in this situation. Using the CDs constitutes copyright infringement. The only question is whether fair use doctrine offers a defense.

[Dan Brown]

This issue needs to be addressed by the copyright holders and their agents. I was not aware that ASCAP did not grant use rights, only performance. It's common to use commerical sound tracks in indie, low-budget and amateur films. It seems like a good market for ASCAP and BMI, and a way for the authors to get more income from their creative works.

I have a project in which I'd like to use Deep Purple's "Smoke on the Water" sound track. In fact, I bought a copy of the CD and transferred it onto my Mac, for editing. It's fair use since it's non-profit for my personal use only, but what if I wanted to enter the film into a few festivals, maybe take it to some commercial level down the road. I sure wish I could write a check to ASCAP to make that use proper, I'd happily do it. But, apparently I can't?

[Paul Tauger]

It's fair use since it's non-profit for my personal use only.

Neither is the test for fair use. Fair use doctrine is complicated, fact-specific, and judge-determined. The only way anyone can predict whether a specific use will be fair use is by knowing the entire corpus of fair use precedent, and even then a judge may do the opposite. I see statements like this all the time, i.e. "Oh, that's fair use, you don't have to worry." No layperson can make that determination.

[Dan Brown]

I should have said that as...

It's non-infringing use since it's non-commercial for my personal use only. In other words, copying a song from a commerical CD I bought at the record store onto a video that I created for my personal use and enjoyment does not constitute an act of copyright infringement.

[Paul Tauger]

That's the problem -- it isn't non-infringing. It is not a defense to copyright infringement to say, "I didn't make any money and/or it's for my own use." It's still infringement and illegal (of course, whether anyone would sue is another question altogether).

Copying a CD for your own use comes within the AHRA. Creating a derivative work by using a CD as a soundtrack, even for your own use, does not come within the AHRA (it might, but it hasn't been litigated, and, given the Congressional intent of the statute, there's a good chance that it wouldn't).

[Paul Leung]

Thanks Paul Tauger and others for answering my questions. Obviously, copyright is a very misunderstood/arguable subject.

I agree that we should pay for the rights to use copyrighted materials in our video production, no matter it is for commercial use or not. The law is the law. Anyway the doctrine of fairuse is very subjective and unclear, and it is ultimately upto the judge to decide.

However, I would hate to see laymen like videographers are sued for copyright infringement, knowing that the music industry is not doing much to help educate the public and to provide a simple way for purchasing the rights.

I think that videographers should team up and push the music industry to provide a clear and simple way for purchasing the rights (performance, sync, mechanical, etc).

[Dan Brown]

The definition of derivative work lies along a gradient as well. Say I host a 60's rock & roll party at my house. I buy a Black Sabbath and Deep Purple CD and I load them in to my CD player. I program it to play intermixed cuts from the two albums in a predetermined sequence. Derivative work? Of course not. How abouut a fade from song to sone without listening to the entire songs. Deriviative work? Now, I hook up a light sequencer to flash multi-colored lights in rythm to the music. Derivative work? Of course not. I create a DVD of people dancing in 60's garb and display it while the music is playing. Deriviatve work? I decide to record the cuts from the two albums onto a single CD burned on my iMac. Derivative work? Onto a DVD? I record separate video and audio tracks onto a single DVD. I play only the pre-recorded Deep Purple cuts. Deriviative work? I play the video and audio simultaneoulsy.

[Paul Tauger]

The definition of derivative work lies along a gradient as well. Say I host a 60's rock & roll party at my house. I buy a Black Sabbath and Deep Purple CD and I load them in to my CD player. I program it to play intermixed cuts from the two albums in a predetermined sequence. Derivative work? Of course not. How abouut a fade from song to sone without listening to the entire songs. Deriviative work?

Both examples you gave are, as a matter of law, derivative works.

Now, I hook up a light sequencer to flash multi-colored lights in rythm to the music. Derivative work? Of course not.

Well, it depends. If the intent is to create a multi-media production then, yes, it's a derivative work.

? I decide to record the cuts from the two albums onto a single CD burned on my iMac. Derivative work? Onto a DVD?

No, for either, though you have created copies. The AHRA precludes infringement liability if done for personal use. If done for a commercial purpose, or for other than personal use, you've infringed.

I record separate video and audio tracks onto a single DVD. I play only the pre-recorded Deep Purple cuts. Deriviative work?

If you're only playing the audio track, i.e. doing nothing else with it, and it's not publicly performed, then first sale doctrine says you're not infringing any rights.

I play the video and audio simultaneoulsy.

It's a derivative work if video and audio are synced. It's just playing audio and video at the same time, within first sale doctrine, if they are not.

[Dan Brown]

Thanks Paul, very interesting.

Have you looked at the iTunes grant language? It differs a bit.

[Paul Tauger]

Do you mean the itunes license? No, I haven't seen it. However, a license can grant or withhold whatever rights the licensor wants.