event music copyright issue

[Sam Houchins II]

Originally Posted by Steve House

Put yourself in the position of the songwriters and music publishers who earns their living by licensing the use of their work. Why should he be forced to accept less than fair market value for his work just in order to make it accessible to you or to make profitable for you to shoot videos of its performance when you charge a rate your clients will accept? As an event videogrpaher you may feel your video work is worth $1000 per hour and you may have clients who are willing and eager to pay that amount because they feel you're really, really that good and worth every penny ... would it be fair for Congress to legislate that you can charge your clients no more than $10 per hour just so Joe Sixpack can afford your services when he wants you to shoot his wedding? (Alas, in these days of political correctness someone would probably argue that your high prices unfairly discriminate against the 'common man'.) That's what you are asking they do with regard to the music you wish to film - to force a price low enough that you can afford it. It's not that the present cost is unreasonable, it's just that you (or your clients when you attempt pass it through to them in the form of higher prices) don't want to pay the fair market value for the songwriter's labour.

Steve, to me your wonderfull argument for fairness also argues against audio compulsory performance/mechanical licensing, and yet there it is, a Congressionally mandated compulsion. My assertion is that whatever the reasoning for creating compulsory performance/mechanical licensing should be expanded to include documentary style videography that captures legal performances of music, because such a video does no more damage than the performance/mechanical allowances that are forced upon the copyright holder. If you compel the one side, then such a video should be allowed as well, as it does no more damage, or as your argument suggests, no compulsion should be imposed at all. That would be equally fair to video and the copyright holder as well. As for fair pricing, Congress has set the price of what's fair for audio, so why can't they do the same for video? If they can't do it for video, why should they do it for audio?

I wonder if allowances haven't been historically made for compulsory audio performances/recordings/distribution, because historically, the ability to perform and soon thereafter to create recordings has become so widespread and such common practice, as to require a mandatory system to be set up to allow for a legal pathway, to avoid a large percentage of its population being criminalized and mired in lawsuits. Otherwise, pretty soon, a musician's living would be best made in the courtroom defending his copyright, moreso than peddling his work professionally. Or, on the other hand, the original work should become so dispersed as to become worthless to its creator. Given an honest avenue, a large portion of people will gladly pay an affordable fee, and follow a modest path to do so (and thus eviscerate the pirate trade). If this reason of necessity has been a motivation to create the compulsory concept for audio performances/recordings in the past, then perhaps the technology and proliferation of video capturing devices, and the subsequent ease of DVD creation/distribution is giving rise to a new necessity of creating a legal path for the swell of video users. The balance will be struck... if everyone can capture with their video device, and everyone can create DVD's, then no one will be paying $1,000 for the service of a professional, and the copyright holder won't feel like they're missing out on a piece of the valuable video pie. But if they want a piece of the 1,000's of users who are doing it themselves, like the swell of people that were swapping music files and creating their own compilation discs, and converting their music collections into other formats, then the law had better compel a system to allow those people to reasonably participate in a process to pay a fair price to include video.

Compel both or neither is my assertion.
God bless

[Sam Houchins II]

Originally Posted by Dave Blackhurst

Just to toss in a twist, look up "incidental" - this is a category that Steve didn't cover, because it's a really grey area...

You hire a Videographer to document an event - he makes NO choices whatsoever about WHAT is performed, and is making no changes to the ambient audio, which is by nature "sync'd" to the performance (meaning whatever audio he captures is in effect just "what happened", or incidental to the visuals captured). Part of that "documentation" includes a DJ playing (hopefully licensed, but is the videographer supposed to go aroud asking "show me your papers?"). Effectively the videographer CAN'T remove the audio being captured unless he's "looping" the audio. He may make minor edits for continuity or timing, but the end result "documents an event", as it happened, just as he was hired to do.

Is the videographer responsible for licensing? HMMMMM. The "copyrighted" material is incidental to the CONTENT of the video, which is the EVENT, and the videographer had NO control over what was played (and thus captured). Really hard to argue when and how liability/responsibility attaches.

My understanding is that according to current law and its interpretation/application/enforcement, such incidental recording is in fact at face value a violation of the copyright holder's base rights and copyright law before amendment. It is exactly one of the considerations that spawned the Fair Use exemption for news reporters out in the field who must report the news, but be exempt from any incidental copyright work recorded during the report. The key, in my understanding in this scenario is, "(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work." A 60 second news report about a primary election, with some copyrighted work incidentally playing in the background, is very different than an entire first dance at a wedding reception between a bride and groom while an entire copyrighted song/performance plays in the background; or even a news report on the opening of Cats on Broadway, but the report coverage includes the entire first act; or a report on a magic or comedy show, and the report includes the piece de resistance or the funniest 3 jokes in the whole 10 minute act.

Furthermore, in the case of wedding/reception footage, the ambient sounds can, in fact, very often be replaced with licensed music to great effect.

This is my understanding how incidental recording (copying) and reporting (transmitting/distributing/pubicly performing) is being handled today. Not as much grey area as you're suggesting, really. Some of my examples may sem to fly in the face of what I've been advocating in the above posts, but I'm specifically trying to emphasize the concept of incidental recording. Furthermore, incidental recording also usually begs for 0 compensation to the copyright holder, whereas I'm begging for a compulsory, available licensing system for video use of music like audio performing/recording/distributing enjoys.

I think currently performing artists should be able to restrict the distribution of their live performances, to maximize their live performance sales.

I think the use of past recorded performances should be completely at the discretion of the performers, but in the case of legal playings, video of the event where it's being legally played should have compulsory license options.

I think that new performances of one's music by other performers should completely be at the discretion of the copyright holder, but since Congress has mandated compulsory licenses for these new performances, video of those performances should have compulsory licensing abilities as well, with the additional permission of the new performers, since that video does no more damage to the copyright holder than the audio compulsory licensing/exemptions do.

God bless

[Steve House]

Originally Posted by Dave Blackhurst

...
Is the videographer responsible for licensing? HMMMMM. The "copyrighted" material is incidental to the CONTENT of the video, which is the EVENT, and the videographer had NO control over what was played (and thus captured). Really hard to argue when and how liability/responsibility attaches. Still, you see those blurry logos on lots of TV shows... incidental or not.

...

Ahhh that's the rub! Is the video about the fact an event took place or is it about the specific content OF the event? If I'm shooting a recital, what is important is not the fact that a recital happened with a certain person - simply a still photograph of a poster advertising it or an on-screen placard would be sufficient for that. What is important is the music that was played and how the performer played it - the music IS the topic of the video, not incidental to it. The viewer of the video is seeing a created musical story that recreates the experience of being there, not a mere record of the event having happened. If it's a band playing on stage at a corporate event, what the video is about is the music, the performer, the audience, and the environment in which it all took place. People will watch the video with the intent of simulating their presence at the original performance. As such, the music itself is fundamental to the meaning of the video and again is in no way merely incidental. Or again, nothing would look sillier than a sequence of the Bride and her father dancing to silence at her wedding reception - the music is intrinsic to the meaning and purpose of the video, not incidental to it. This really is in no way different from the role of music in a TV show such as "Glee" or a classic Fred Astaire or Gene Kelly song and dance number from a 40's musical. And just like the producers of Glee had to license Madonna's songs that were used in the show they made for their purposes, so we have to license them to use them in ours, regardless of WHY we're making the show (excepting of course the established Fair Use exemptions of news coverage, criticism, academic research, etc). For the music to be incidental, you would need to be able to legitmately say that purging the soundtrack of the music would have no effect on the quality of the audience's experience viewing the resulting video..

[Steve House]

Originally Posted by Sam Houchins II

...
I wonder if allowances haven't been historically made for compulsory audio performances/recordings/distribution, because historically, the ability to perform and soon thereafter to create recordings has become so widespread and such common practice, as to require a mandatory system to be set up to allow for a legal pathway, to avoid a large percentage of its population being criminalized and mired in lawsuits. Otherwise, pretty soon, a musician's living would be best made in the courtroom defending his copyright, moreso than peddling his work professionally.

I think one needs to remember that the law did not evolve to protect performer's rights - traditionally the performing artist didn't HAVE any rights to the music nor have any copyright interest in the recording. Music was written and published by "tin-pan alley," a cadre of generally unknown to the public professional composers, lyricists, and publishers who created the sheet music the performers performed on stage and recorded. Labels bought the rights to the songs and hired the recording artists to perform them. The laws were structured to protect the rights of the composers, publishers, and record labels since it was their intellectual property that was in play, in most cases the artists were (and often still are) just the hired help..

Note that mechanicals expressly cover the duplication of an audio recording for distribution. The compulsary mechanical is not a blanket license for any music, it only applies to covers of music previously recorded and released by another artist and not all mechanicals are compulsary. The first recording still needs a mechanical to allow for the record production run but that one is not at the statutory complusary rates AFAIK. The compulsary mecahnical is more akin to a residual, insuring a continuing revenue stream to the publisher after the 'first run sales' by the original recording artist.

[Sam Houchins II]

Compulsory mechanicals allow for the production and distribution of a phonorecord ("Phonorecords are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “phonorecords” includes the material object in which the sounds are first fixed.") of someone else's musical work, as long as that musical work has been previously published at least once. The copyright owner has the first run rights. But without a master license, that phonorecord's recording can't be a duplicate copy of a previous recording. It has to be a recording of a new performance, though of the same music.

It still astonishes me that Congress compels the copyright owner to allow subsequent artists to produce/distribute phonographs of new performances of the copyright holder's work, and even sets the price for it. This is the part, if there is to be any compelling, that should also allow for video, as long as the new performers allow the video taping of their legal performance, such as a school concert.

As for wedding receptions where an iPod is playing artists' recorded music, I guess capturing that music onto video would require a master license, or does a master license only apply to audio like a mechanical license? With a synch license, is no master license is required, like with a sync license, no mechanical is required? I think I've read this answer before, but would be hard pressed to find it before I hit the submit reply button!
God bless.

[Steve House]

As for wedding receptions where an iPod is playing artists' recorded music, I guess capturing that music onto video would require a master license, or does a master license only apply to audio like a mechanical license? With a synch license, is no master license is required, like with a sync license, no mechanical is required? I think I've read this answer before, but would be hard pressed to find it before I hit the submit reply button

Since a phonorecording has a separate copyright from the music (melody and lyrics) itself, the scenario you pose would require BOTH a sync license from the publisher of the music and a master use license from the record label or other owner of the copyright on the recording to allow for copying of that pre-exisitng recording of the music. The synch license allows for use of the music, the master license allows for the use of a specific recording made by someone other than yourself. If all you obtain is the sync license, you have to make an original recording of it being performed yourself. If you used Celine Dion's recording of "My Heart Will Go On," in your video or it was played in it, you need to obtain a synch license from James Horner and Will Jennings publisher (Sony ATV Harmony in this case) AND a master use license from the owner of Celine's recording of it (Columbia/Epic I believe).

Here's ASCAP's FAQ on the topic...

"5. I want to record or videotape a song or record. Do I need permission, and how do I obtain it?

If you want to make copies of, or re-record an existing record, tape or CD, you will probably need the permission of both the music publisher and the record label. A music publisher owns the song (that is, the words and music) and a record company owns the "sound recording" (that is, what you hear... the artist singing, the musicians playing, the entire production).

If you plan to hire your own musicians and singers and create an original recording of a copyrighted song, then you need the permission of only the music publisher.

ASCAP does not license recording rights. Recording rights for most publishers are represented by the Harry Fox Agency: "

Note that Harry Fox does not deal with synch or master licensing, only mechanicals for audio recordings.

[Sam Houchins II]

Very good of you, Steve. Thanks!

[Wendy Marberry]

Originally Posted by Sam Houchins II

... or even a news report on the opening of Cats on Broadway, but the report coverage includes the entire first act...

I just want to throw in a minor point for clarification: when I was a news producer, monthly we filled out a sheet indicating any music that was included in our newscasts. The station had ASCAP and BMI licenses, and I didn't know it then but we were filling out cue sheets. So any music, whether background or incidental in a story, was in theory, paid for.

I will tell you that this process was fairly haphazard and depended on everyone's memory. If I was out sick and the fill in producer used music, I'll guarantee you the artist(s) did not get paid for that. If I was out to lunch when the cue sheet got passed around, same result. This was in Phoenix (top 20 market), none of the stations had a good way to handle this.

The entire music industry is working under an antiquated system. I doubt they will change unless they see profits, and most small producers don't offer them that.

[Aaron Courtney]

^^^and this just goes on to prove the point that Les, Sam, & Dave are making - that current law discriminates against the "videographer" because his/her use mandates a sync license, but broadcast TV can simply obtain a performance license that covers the broadcasters' synchronization of copyrighted music to broadcast images.

Going a bit further, if Sam would permit, I believe his argument for compulsory licensing for video as we have in audio can be best presented as follows:

For a cover audio recording, the intrinsic value of the copyrighted published music is just the structure of the music, the lyrics, the arrangement. Nothing more. The actual value of the performance is entirely dependent on the performers' talent. As such, the law forces the copyright holder (publisher) to grant permission to ANY performer to commercially record and distribute copies of that performance after paying a known, established fee, assuming other conditions are met, which typically are for cover tunes.

Just because a film production company chooses to film that same performance, be it live or studio, does not change the intrinsic value of the copyrighted material - either by adding to it or diminishing it. The mere visuals of the performance do not increase the intrinsic value of the copyrighted material EVER because they are perfectly related and correlated to the actual copyrighted material. For ex, it's impossible to vocally sing lyrics without moving your mouth; and the visual capturing of the vocalist's mouth moving cannot materially increase or decrease the intrinsic value of the lyrics because in order for anyone to sing those copyrighted lyrics, we ALL must move our mouths in EXACTLY THE SAME MANNER as dictated by human physiology. The same goes for the musical performance. Middle A is middle A on ANY keyboard/piano and must absolutely be struck in order to force the instrument to reproduce that frequency whether you, me, or any other of the 6-7billion people on Earth do it. Merely capturing the visual performance of striking the key cannot increase the intrinsic value of the music any more than the audible recording can - which has been established to be ZERO by law.

This is very much different from use in a motion picture or sync'ing the copyrighted material to moving images unrelated to the copyrighted material. In this case, the copyrighted material can, in fact, elicit a desired emotional response from the viewer that greatly exceeds the individual inherent value of both the copyrighted material and the visual images. And it is not unreasonable for the copyright holder to demand fair compensation for the use of his/her material because it may have added value to the moving images over and above the intrinsic value of the copyrighted material. (<-- actually BOTH the visual images AND the copyrighted material).

This is never the case with filming the visual activities required to reproduce the copyrighted material because anyone trying to duplicate the copyrighted material whether, vocally or musically, will have to perform materially similar actions to do so. If anything, the performing artist(s) deserves to benefit from the recorded visuals of the physical performance, not the copyright holder(s) of the published material because it is his/her/their skill that will determine the intrinsic value of the PERFORMANCE of the copyrighted material, and whether or not anyone will want to purchase the end product to watch the performance.

The reason this is a problem today is because technological advancements in the filming world have given many the ability to commercially film a major "live" concert production and make that available for public distribution at massively reduced budgets just like Pro Tools did for the audio world 15 years ago.

[Aaron Courtney]

Originally Posted by Chris Davis

If you want to hire a band/musician to record a version of a popular song for inclusion in your video, it can be done fairly inexpensively. I've done that before - we used "Who'll Stop The Rain" by John Fogarty. While we could not use the recording by CCR, we could make our own recording. It was just a matter of paperwork and a small check.

If you did not obtain a sync license from the copyright holder of the published material (music/lyrics), congratulations, you are in violation of existing copyright law. All you did was sidestep acquisition of the master use license from the copyright holder of the original CCR recording. Since you set copyrighted instrumental arrangements & lyrics to moving images, you must also obtain a sync license from the copyright holder.

Hence, Les's disgruntled commentary.

[Steve House]

Originally Posted by Aaron Courtney

^^^and this just goes on to prove the point that Les, Sam, & Dave are making - that current law discriminates against the "videographer" because his/her use mandates a sync license, but broadcast TV can simply obtain a performance license that covers the broadcasters' synchronization of copyrighted music to broadcast images.

...

You're overlooking a couple of points. If the videographer makes a program and a broadcaster subsequently broadcasts it, BOTH sync and performance licenses come into play. The program producer needs to obtain a sync license to include the music in his soundtrack. But he also prepares a cue sheet for the broadcaster and each time the program is aired, the broadcaster uses that cue sheet to report the performance to ASCAP/BMI etc, whereupon performance royalties are paid out of the blanket license fee the broadcaster pays each year.

[Aaron Courtney]

^^sorry, but I did not overlook that point. That comment was strictly limited as a response to Wendy's comments as a "news producer" from a television broadcast "station". There was never a mention of any private videographer in her post other than "small producers" at the end of her post which is entirely unrelated to her personal experience testimony or my statement.

[Steve House]

Sorry if I misunderstood your post. Also, her situation was producing news, which has more liberal usage rules under the Fair Use provisions than do other forms of programming/filmmaking.