event music copyright issue

[Steve House]

Originally Posted by Dave Blackhurst

...
With the many "laws" out there, it's pretty likely we ALL break a few every day either through ignorance, carelessness, or sometimes knowingly... if the "letter of the law" was the final answer, we'd all be in jail or at least "criminals"... as a practical matter the "spirit of the law" is what I'd venture to say 99.99% of people live by so they can actually function and enjoy life... Speaking of which, Adam and Steve and I are going for a drink now!

As a society we (rightfully, IMO) tend to put Business on a much shorter leash than we do Consumers. IF we were talking about Uncle Joe shooting his niece's birthday party and putting (copyrighted) Happy Birthday in the soundtrack without securing licenses and permissions than I'd agree with you 100%, no one is going to get much upset - certainly not me - even if it is technically illegal. But as soon as a BUSINESS gets into the act, everything changes. And a business is not just Sony or CBS ... a BUSINESS is Joe Snerd in West Podunk who three or four times a year gets asked if he'd like to shoot the school play so the parents can have DVDs of their kid. Even though he's a small-time, part-time, perhaps casual operator, perhaps hobbyist who just charges expenses, he's operating in the same ballpark as the New York Madison Avenue advertising production house or the producer selling to Discovery Channel or the society wedding videographer in the Hamptons who charges $25,000 a wedding. As soon as ANY money changes hands related to his shooting video for any purpose, he's a business. For that matter, when he posts to the public as a blogger or on YouTube, etc, he's operating in the public arena as if he was a media business, even if no money is changing hands. As a business, even a casual business, he has to pull on his long pants and know, understand, and operate by the big boy's rules. That includes a thorough understanding of the laws regarding copyright and licensing, model and property releases, and all the other myriad details of the media business that all the professional players in that game are expected to know, understand, and adhere to. He may live just up the street from the old Clampett place in Bugtussle but he has to know and play by New York City and Los Angeles rules with respect to the legalities of the profession. We don't forgive small businesses who violate environmental safety laws and dump toxic wastes; why should we be less rigorous in the need for people operating professionally to clearly understand the intellectual property laws that apply to their work?

I'll have that drink now, single-malt scotch if you don't mind.

[Shaun Roemich]

I think a good number of us would be less frustrated IF the organizations responsible to staging plays and other performances refused to allow parents/grandparents/friends to tape the productions. Regardless of just where we individually stand in terms of opinions of what we SHOULD be allowed to do, it's sure frustrating knowing that individuals are "in there" doing what we can't legally do (and at a significantly worse level to boot).

I left a very lucrative aspect of my business behind (dance recitals at a VERY high level) solely because of the issues surrounding sync rights. I had 3 genlocked broadcast cameras in the house live switched to tape (using an older Panasonic broadcast switcher) with 2 channels of audio: board feed of music and announce mics AND PZM "tap" mics and produced VHS dubs (that's how long ago this was...). Now they have a single chip consumer camera in front of house with oncamera mic and people pay twice as much, arguably because they are now producing DVDs. Maddening.

[Dave Blackhurst]

Steve -
Law favors the deep pockets, and frankly a leash does no good if the legal team "slips the collar"... as is frankly more frequent than not when a "big" organization breaks the rules (or needs a bailout).


It's the "little guy", business or not, that suffers when there is "legal inequity", as Shaun so eloquently illustrates! Those videos are being shot for personal use and enjoyment, same event as what a pro would shoot so the end user gets something that doesn't look like crap... common sense says something is fundamentally wrong with this picture, thus why declaring it "illegal" makes one chafe. When I can't even donate my services to help my children's school raise money by selling a few DVD's to proud parents and however few others would want to watch it once or twice... something is out of whack.

I've no stomach for scofflaws, but frankly I've had my fill of "big" guys picking on "the little guy" because they have deep pockets and they can... and do, even while they break the rules, again because they can, do, and can afford an expensive legal defense if anyone dares call them on their misconduct.

Rules and law have their place, no doubt, but I'll opt for fewer rules and more common sense, make mine a Root beer float, double ice cream!

[Steve House]

Originally Posted by Dave Blackhurst

...

It's the "little guy", business or not, that suffers when there is "legal inequity", as Shaun so eloquently illustrates! Those videos are being shot for personal use and enjoyment, same event as what a pro would shoot so the end user gets something that doesn't look like crap... common sense says something is fundamentally wrong with this picture, thus why declaring it "illegal" makes one chafe. When I can't even donate my services to help my children's school raise money by selling a few DVD's to proud parents and however few others would want to watch it once or twice... something is out of whack.

...!

You use the term "the same event as what a pro would shoot." But when a third party videographer is shooting it, he IS a pro and even if he is a local advanced hobbyist just shooting to earn a few $$ to upgrade his camera, he is functioning no differently or under a different legal system than would, say, a production unit hired from PBS. The scale of the money is different and the complexity of the logisitics is different but the laws regarding intellectual property rights and privacy rights, etc, are exactly the same. You see shooters such as the OP as different of business from the intellectual property owner or big-time production businesses and the money he's raising for the school is somehow a different category of "profit" than is the money the publisher is making from selling licenses to the play. I think they're both identical - profit is profit, regardless of what you want to do with the money after the fact. The publisher can't take the OP's camera without his permission and use it to earn some money and the OP can't take a performance of the publisher's play without permission and use it to earn some money. Seems totally fair to me.

[Ervin Farkas]

Ten years ago, when real estate was still a good business even if done part time, I took some classes, got licensed, and sold a few homes... yeah, another era... But I will never forget what one of my teachers said about this highly regulated industry, when talking about how an agent should conduct his business: if something feels wrong, it more than likely IS wrong.

As Dave put it, there is less and less common sense in our society! I have a second grader, her class had a music presentation last year, same scenario as described above. Instead of parents shooting with pocket cameras, I was asked to bring in my Z1 on a tripod, with a pro mike right in front of the kids - so each family can have a decent video of the performance. I was not paid, not even for the blank disks.

Are you going to tell me that it was illegal to provide watchable memories for 20 kids singing their first school songs? That this falls under the same law regulating the rock concert of Billy Megastar that cost $3,000,000 to produce???

Come on guys, where is that common sense?

[Steve House]

Originally Posted by Ervin Farkas

...
Are you going to tell me that it was illegal to provide watchable memories for 20 kids singing their first school songs? That this falls under the same law regulating the rock concert of Billy Megastar that cost $3,000,000 to produce???

Come on guys, where is that common sense?

Yep, just as illegal as if you bought a CD you like, ripped off a dozen disc copies, and gave them to your friends for Christmas. Or perhaps closer to the situation you describe, buying a CD of favourite children's songs and giving copies to all the parents in your circle of friends. Owners of IP are entitled to compensation for the distribution of their property. The words and music of those songs are the property of the copyright holder. The fact that you were motivated by "Those kids are just so cute!" doesn't change it.

[Ervin Farkas]

I agree with the first part, but the comparison is not quite right. If I bought a CD and made copies, that's a clear infringement of the musician's rights. But when the school bought the music sheets, they implicitely bought the right to perform that music. If I was Joe Parent and my child is singing in that choir and I shoot the choir with my little pocket cam - no one would have any issues with that, right? I have so far not seen any music sheets specifying "taping a public performance of this music is prohibited". If we follow the letter of the law, we will have no family memories...

Now if I bought a ticket to some expensive to mount concert where taping rights are specifically stated, that's another story, but we are talking about a free performance of my own child.

Common sense dictates that if I can watch that performance once, I can tape it too, so I can watch it later. The fact that one parent makes a better quality DVD as opposed to 20 parent shooting with 20 shaky handicams - in my eyes does not make any difference (provided I am not selling the DVDs, but distributing them for free).

If any law says otherwise, that just doesn't feel right, the law is in need of revision - that's my whole point. I know, this is a very controversial topic, and everyone is pretty much in a grey cloud; I hope some sort of legal clarification will come in the near future.

[Steve House]

The problem is not so much making the tape for yourself as it is distributing copies of the tape to someone else, including people who were present at the performance and could have made their own tapes but didn't.

Common sense actualy doen't say that if you can watch a live performance you can also tape it to watch it again. "No Recording, Videotaping, or Photography" restrictions at concerts, performances, and exhibitions are incredibly commonplace.

Remember that publically performing a piece of music and syncing the music to video are two separate and different acts and require two different licenses. And while you may be correct that an explicit prohibition against recording or videotaping a performance is rarely seen on sheet music, I understand they are very common in the performance license agreements for plays and musicals. And just like purchasing a DVD of a movie does not license you to perform it in public and charge admission, the purchase of sheet music or the script of a play does not in itself convey a public performance license to the purchaser.

[Les Wilson]

Originally Posted by Steve House

... The publisher can't take the OP's camera without his permission and use it to earn some money and the OP can't take a performance of the publisher's play without permission and use it to earn some money. Seems totally fair to me.

In practice, the system is onerous and biased against the small guy which for all I know is what the industry lawyers want. I've gone the proper and legal route twice now and it is an expensive laborious and tedious process to secure the permissions that ultimately fails to secure permissions for all songs so something gets cut.

For example, I did a Christmas school performance DVD as a fundraiser for the Fine Arts department. I had to deal with over a dozen different entities who manage the licenses. These are not easily found and takes digging. Many are are slow, don't answer the phone/email or have long complicated online applications that many times don't work. It's not something you can ask a parent or school staff member to do. The Time Warner companies are (in my experience) the absolute worst with Sony running a close second. I followed all their online procedures and after weeks got no reply. I left phone mail on every single extension and not one curtosy of a reply. The New York companies are next with a starting fee of $50-$75 a song for sync plus per copy mechanical. Multiply that by a typical show with 15-20 songs, add 40-60 hours of your labor and you've pretty much blown the budget before pressing the red button.

So yea, it's easy to *say* go get the permissions and you'll be ok it's harder than it sounds. The reality is that the small guy can't, practically speaking, play by the rules.

With my cynic hat on, I'm left to conclude they can't afford to license it at a reasonable price and pay the legal staff they require so they'd rather ignore you and try to catch you infringing at which point they WILL take your camera without your permission.

[Steve House]

Originally Posted by Les Wilson

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So yea, it's easy to *say* go get the permissions and you'll be ok it's harder than it sounds. The reality is that the small guy can't, practically speaking, play by the rules.

...

There are music clearance agencies that will work with small operators for reasonable fees. They usually know just who to call and can get the best prices. For a project like your Christmas DVD it would be well worth it to hire one to do all the legwork for you. A Google on "music clearance services" will turn up a bunch.

[Dave Blackhurst]

Glad to see I'm not alone in calling out the absurdities here.

And Steve, I think we ALL understand the technicalities - a performance is a performance, if you will. At a PAID production that charges for tickets you would expect to see restrictions on photos, taping, etc. You try that at local PS15's elementary school kid's production (no entry fees), and I'll venture you have a riot... there IS a difference here.

I'd expect if a local theater company was putting on let's say "Cats", and they were charging, and wanted a taping, they would sort out the particulars... I would expect the appeal to be to a wider audience, in fact the production company might well restrict taping because they want people to come see it LIVE - that's part of the experience.

When li'l Johnny and Sue are doing their Christmas play and show (out of tune singing, knocked over Christmas tree, and all...) with free admission to friends family and relatives, I think you can see the "appeal" is not quite the same, and yet to the family members it is "priceless", and it's the MEMORIES that have value, not the material performed. In my mind it's rather inappropriate to even try to equate/associate these two very distinct scenarios.

If the licensing has been arranged to allow performance in a FREE show, it should reasonably include the rights to have a videotape made, and perhaps a per unit royalty check for any DVD's sold - that would be fair and sensible, and provide additional benefit to the IP holder.

It's not like video hasn't been around for a while, but the high quality that can be had at a relatively cheap investment has opened up this area - technology has progressed, but the "rulebook" still reads like we listen to audio on vinyl... and a recording device has two large reels... and a video camera is the size of some subcompact cars...

Pirates/couterfeiters don't make casettes and LP's, they churn out CD's and DVD's in a warehouse in Singapore. They are in it for profit, and don't give a hoot about the content, other than how many it means they can sell... THEY are the REAL enemy of the IP holder... (along with the "everything should be FREE" file sharing types).

And they will NEVER sell even a single copy of "Johnny and Sue's christmas show"... though a few dozen copies for friends and family have "market value" in a very limited sense. In such a case "reasonable fees" might be no fee at all, simply because the market value is so miniscule as to be more trouble to account for than it's worth!

There needs to be some perspective... and that's part of "common sense". Just sayin'...

[Les Wilson]

Originally Posted by Steve House

There are music clearance agencies that will work with small operators for reasonable fees.

They won't do it for free. Their charge or the cost of doing it yourself makes these free performance/limited market events unaffordable. It should not be so hard to require an agency. That's old think. It needs to be brought up to date and made easy and affordable. That will create the market/ecosystem and generate revenue for the IP owners instead of paper pushing administrators. As it is now, organizations lose out on capturing their own events or record it "illegally" and put the organization at risk, provide a bad example and in the end promote the undesired behavior.

[Steve House]

Originally Posted by Les Wilson

They won't do it for free. Their charge or the cost of doing it yourself makes these free performance/limited market events unaffordable. It should not be so hard to require an agency. That's old think. It needs to be brought up to date and made easy and affordable. That will create the market/ecosystem and generate revenue for the IP owners instead of paper pushing administrators. As it is now, organizations lose out on capturing their own events or record it "illegally" and put the organization at risk, provide a bad example and in the end promote the undesired behavior.

I know it may be expensive but it isn't always. But more importantly, why do people think they have a moral RIGHT to have access to everything at a price that's affordable for their budget? I certainly can't afford a Ferrari so I have to make do with what I can afford. There's no reason there oughta be a law compelling Ferrari to sell me one at a price I'll be happy with. Music is no different. If you can't afford the fee Elton John demands of you to use one of his songs, go somewhere else. There's no reason you should feel slighted or that the system is unfair because you can't afford it. Get good enough that you can charge a fee that will allow you to afford Elton John. Meanwhile buy a Chevy instead of that Ferrari.

I have to point out that the way it is now IS generating revenue for the IP owners. If you license a piece of music, you pay fees directly to the music publisher who is working with the composers and lyricists. Collectively they ARE the IP owners, not the "artist" on the CD you bought (unless he's self-publishing) and when you license music to use in a film or video you pay them directly. ASCAP and the like are clearance houses for performance royalties - they don't own the rights and they don't keep the money paid them on performances and broadcasts. They serve as a collection house, turning around and distributing the money broadcasters and performance venues send them for performance licenses to the various IP owners.

[Craig Seeman]

Worth watching. A very interesting discussion of IP.
RIP! A Remix Manifesto
Hulu - RiP! A Remix Manifesto - Watch the full feature film now.

If you don't want to watch on Hulu then the film owner is using the pay what you want to pay method of sales to buy your own copy.
RIP: A Remix Manifesto Rip It Downloads


Their description:
"Immerse yourself in the energetic, innovative and potentially illegal world of mash-up media with RiP: A remix manifesto. Let web activist Brett Gaylor and musician Greg Gillis, better known as Girl Talk, serve as your digital tour guides on a probing investigation into how culture builds upon culture in the information age.

Biomedical engineer turned live-performance sensation Girl Talk, has received immense commercial and critical success for his mind-blowing sample-based music. Utilizing technical expertise and a ferocious creative streak, Girl Talk repositions popular music to create a wild and edgy dialogue between artists from all genres and eras. But are his practices legal? Do his methods of frenetic appropriation embrace collaboration in its purest sense? Or are they infractions of creative integrity and violations of copyright?"

[Steve House]

Originally Posted by Craig Seeman

... Utilizing technical expertise and a ferocious creative streak, Girl Talk repositions popular music to create a wild and edgy dialogue between artists from all genres and eras. But are his practices legal? Do his methods of frenetic appropriation embrace collaboration in its purest sense? Or are they infractions of creative integrity and violations of copyright?"

Something is only collaboration if the contributors of the various elements are voluntarily participating. If their materials are being used without their consent, it's theft, not collaboration. That idea goes beyond the letter of copyright law and is derived from the moral right to the exclusive enjoyment of the fruits of one's labours that is its foundation.