Question #3 from Some Basic Copyright Caveats by Douglas Spotted Eagle

[Alessandro Machi]

" Question 3: The artist should be happy, I’m letting other people hear his/her song, and maybe they’ll go buy the CD. It’s like free advertising. How can the artist complain about that?

The artist has certain rights to control where and when their music is heard. You don’t have any rights because you didn’t create the work. Imagine my own personal surprise when I was scanning HBO one night, and heard my own music playing in the background of an orgy scene of a show called "Real Sex." I was incensed. Artists must possess the right to maintain a certain level of control over their works. This cuts both ways, incidentally.

Think of this in terms of your children. You have specific rights of control. A teacher in the school is also granted certain rights with regard to your child but you as the parent (copyright holder) can restrict the teacher at any moment in time. " Douglas Spotted Eagle.

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I think this question is incredibly important, I also feel that the answer is good, but not complete. The answer given is about pornography, but not about other kinds of useage.

An anniversary video that celebrates someone's life plays at a person's 60th birthday party. Explain how putting the song "Simply the Best" over a person's personal life story photo montage is a problem.

If it is IS a problem, than I would say the following, each artist that objects to their music being put over the" little people's" photo history and would be willing to put such a statement on the OUTSIDE CD cover would lose so much adoration, (and purchases) from their fans they would cave in and allow the use, as long as the final product was not for sale, barter or broadcast.

I guarantee you if half the artists would put such a warning on the CD cover and half would not, I would only buy from the artists that ALLOWED personal use.

The position being set forth inadvertently allows the artists to be ---holes without having to state they are a ---holes. I'm pretty sure Tina Turner would not want it put on her Cd cover, "DON'T EVEN THINK OF USING MY MUSIC OVER YOUR STUPID PARENTS 60TH BIRTHDAY VIDEO.

Enforceable law usually is supported by those who it protects, is Tina Turner ready to put a statement of "support" on her CD cover warning the little people they can never use her music to show their love for their family?

[Rhett Allen]

You're just asking for about a hundred other laws to be written to even further confuse and dilute the situation. The bottom line is, IT'S NOT YOUR PROPERTY! No matter what, where, why, or for whom, if you didn't personally create it, it's not yours to do anything with.
What, do you think that NOW we need labels on CD covers that specifically say, "Feel free to use this music for your Grandmothers 60th birthday photo montage"? Well, now we've gotta pay more for the CD because it has yet another piece of artwork to create and yet another process the CD has to go through before you can buy it. Then you have this school theatre group over here saying, surely they would let us use this in a grade school production, so here comes another sticker on the cover. Then you get into discrimination debates and censorship debates and bla-bla-bla-bla-bla. Pretty soon you're paying $45 for a CD to cover the cost's of all the stickers needed to display the specifics of use deemed acceptable by that particular artist and all the lawyers fees required to write it all up when in fact, it's not such a painful ordeal.
True, you're probably not going to get into any trouble using someone's song in your house during Grandmas party but there is a reason the LAW is written the way it is. Because you know some jack-ass is going to take a number one hit and stick it in his movie or commercial or something and have Grandma sitting there in the scene so he can be legal. "Hey, we were just filming Grandma's birthday and using it in the commercial", well, here come the lawyers again.

...besides all of this copyright discussion on legality, what's so wrong with just doing the right thing? If you want to use someone else's creation, why be a jerk and cut them out of the deal. That's just RUDE, at least ask first, especially when money is exchanging hands. I've personally seen pretty big name bands do work for FREE because they liked the message being sent or understood the budget wasn't there.
I have NO idea how wedding guys get away with it? I've never done a wedding but if I did, I would have no clue how to handle this aspect of it and I know it's very common. I've been asked to use someone else's music before and I will flat-out refuse to do it unless we get written permission in advance, not the client saying it's ok, WRITTEN permission, in my hand. It's just way too easy to get music created (relatively cheaply) or buy canned music and it's not worth the risk, however remote... and it's wrong.

sorry if it sound like a little bit of a rant but I myself and a few of my friends (all little people) have had copyright protected material stolen and sold for profit. example: An artist friend and I saw a reproduction of a portrait he painted (actually a drawing) hanging on the wall of a restaurant above the table we were eating at! He did not sell the drawing to them, there was only "ONE" copy, and this was a print of it (complete with signature)! Someone ripped off his painting and was selling prints of it without his permission!

[Richard Alvarez]

Tina has placed such a statement on the cover of her records.

It's called a copyright statement. The part that states "All rights reserved" speaks for itself.

Ignorance of the copyright law does not guarantee freedom from prosecution. And I wouldn't want to use your 'guarantee' as a defence.

All of this has been covered to great lengths by attorney Paul Tauger and others in the past threads.

[Alessandro Machi]

"That's just RUDE, at least ask first, especially when money is exchanging hands"

I agree with you, the record labels have been extremely rude in the past not for not budgeting a division to their company to be availabe for the little people to call in and get service.

Are you telling me that whoever distributes Tina Turner's music wants me to call them ask them first, for permission to use the song on a birthday video? Are you serious?

[Alessandro Machi]

<<<-- Originally posted by Richard Alvarez : Tina has placed such a statement on the cover of her records.

It's called a copyright statement. The part that states "All rights reserved" speaks for itself.

Ignorance of the copyright law does not guarantee freedom from prosecution. And I wouldn't want to use your 'guarantee' as a defence.

All of this has been covered to great lengths by attorney Paul Tauger and others in the past threads. -->>>

I brought up a very powerful point that I'm pretty sure has not been brought up before and you just looked past it.

An expansion of what copyright means needs to be on the CD cover or backside. It doesn't need to be 30 million pages long either.

Either an artist objects to their music being used in somebody's birthday video or anniversary, or they don't.

In case anyone wants to be an overnight millionaire, the day is probably soon coming when we will be able to purchase a release for a song for birthday video for 99 cents via the internet. Whoever sets up the software and the service will do quite well for themselves.

[Rhett Allen]

You are absolutely correct in that the record labels would benefit from being helpful and cooperative rather than greedy and litigious. It really does suck.

[Barry Gribble]

It really doesn't matter whether you think that protecting intellectual property rights makes someone an ___ or not.

And obvisously it doesn't seem to matter to you even that Tina Turner (or whichever star) isn't actually the one who could give you permission to use the recording.

It also doesn't seem to matter to you that the little people can call clearance houses, not the record labels, to help you get permission.

Would you walk in to a store and assume that the owner couldn't possibly mind you stealing milk to give to your sick child? Who would shop at his store if he advertised on the door that he wouldn't give milk to a sick child? And besides, the child might start liking milk and come back to buy more some day.

That is not a decision that you can make for anyone, and the arrogance of saying that you can is mind-numbing. That's a powerful point.

I'm sorry that you feel oppressed by the fact that people are not giving you things that you think should be free. But they aren't.

[Kelvin Kelm]

<<<-- Originally posted by Barry Gribble :
It also doesn't seem to matter to you that the little people can call clearance houses, not the record labels, to help you get permission.-->>>

Who could one of the "little people" call to get such permission?

[Paul Tauger]

Article I, Section 8 of the United States Constitution is the source of copyright law in the Untied States. It provides, in part:

"The Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries"

"Exclusive" isn't particularly ambiguous in this context; the copyright owner gets to contol, completely and exclusive, the work protected by copyright. There are exceptions to the exclusive control provision, most notably when it interferes with a core constitutional value, for example those embodied in the First Amendment. Fair Use is one of the ways US law balances the tension between the exclusive control provision of Article I, Section 8 and the freedom of speech core value of the First Amendment.

Unfortunately, "I think it would be nice" doesn't embody a First Amendment value that would support abridiging the unambiguous and unqualified right provided by the Constitution. Note, however, that Congress is empowered to make these laws. That means Congress could allow for a "small even videographer exception," as it has allowed for other exceptions.

WEVA is not a small or powerless organization, and it could, if it chose, lobby Congress for a revision in the law. Why it hasn't is, frankly, mystifying to me.

[Chris Hurd]

Hmmm... gears are turning here... DV Info isn't small and powerless, either. Perhaps we should all band together and become lobbyists!

[Alessandro Machi]

<<<-- Originally posted by Rhett Allen : You are absolutely correct in that the record labels would benefit from being helpful and cooperative rather than greedy and litigious. It really does suck. -->>>


I think this is the key point. The record labels and clearance houses DON'T want to deal with the public one on on, it costs them too much money.

Now with the advent of the internet and shopping on line, there probably is money to be made by simply offering some kind of tiered clearance service above and beyond broadcast, political, religious, fundraising, recruitment, or adult entertainment uses, such as related to birthday anniversaries or relationship anniversaries.

I think those who have weighed in on this issue in the past have not acknowleged that I have given a couple of new reasons.

Cigarettes packages come with a warning that if you smoke, you will get burned, it's obvious to me that NOBODY in the public views copyright as a similar warning that does not allow them to use the song on a video that is not for broadcast, barter, or resale.

If the public viewed copyright in the same manner that a cigarrette warning is viewed, (they should, as both are just as toxic in their own way) sales would drop, I guarantee it.

Artists are hiding behind others and profiting handsomely for doing so.

The simplest approach of all would be to make a special cover (and PLEASE, don't imply that an additional cover would add dollars and dollars to the cost of the CD, it would cost pennies at most) and by buying that CD at a five or 10 dollar premium, the music on that CD could be used (solely by the purchaser) in birthday videos and anniversary videos.

It would be free money to the music industry and would probably total into the millions on a yearly basis.

[Barry Gribble]

Fair use is fair use, and if I own "Celebration" on an album and want to put it under some video of me and my friends dancing around the house, and keep it to myself, no one is going to care.

But this is different. You are talking about:

1. Being paid money to produce a video for someone else

2. Using a song like "Celebration" to increase the value of your product - because you know that it is worth more than if you used some dull royalty-free dance tune

3. Not paying the owner of the copyright for that increased value

and

4. Actually decreasing the value of the song by using it -- think about it... if every wedding video in the world used that song, what TV show or movie is going to turn around and license it for something else? Ask the BeeGees if overplaying a song can decrease it's value.

I truly can not find a cogent argument rooted in law or ethics for why I should be able to do this and profit from someone else's work. All the ones I hear start with "I want to do it... so lets figure out how I can justify that."

Intellectual property is property, and there are always times that we would like for other people to give us their property. But we can't just take it.

You can lobby until you are blue in the face, but you're going to have WEVA and DVInfo against ASCAP, BMI and RIAA. And not only do they have muscle, they are also right.

Some better stream-lined licensing process would be nice, but that's their choice.

[Alessandro Machi]

"4. Actually decreasing the value of the song by using it -- think about it... if every wedding video in the world used that song, what TV show or movie is going to turn around and license it for something else? Ask the BeeGees if overplaying a song can decrease it's value."

A valid point but one that overlooks the "publics" role in the artist being successful.

So one follow up question is which is more important to an artist, the initial support from the public that thrusts them to fame, and fortune, or the aftermarket licensing fees that tend to relate to how famous the artist became because of the public's previous support?

I would suggest that some have overlooked the signficance of fan support towards an artist. If an artist really and truly supported the notion that their fans could not use the artist's music over a video tribute to their own parents, the artist would lose support and sales to other artists who did allow it.

[Alessandro Machi]

<<<--
Would you walk in to a store and assume that the owner couldn't possibly mind you stealing milk to give to your sick child? -->>>

Or, one could say I bought the milk (aka CD) and then came back and asked for a straw, even willing to pay for the straw, so that I can drink the milk more thoroughly (showing the song over pictures of a family member at an anniversary party).


<<<--Who would shop at his store if he advertised on the door that he wouldn't give milk to a sick child? -->>>

That is the point I was making also. I paid for the CD and now the songs can't be used to honor anyone I personally know or for a client in a non-broadcast, non-barter or resale situation. If the public knew the artist "felt" this way, the public most probably would spend less money on that artist and more on artists that allowed such use.

<<<--
And besides, the child might start liking milk and come back to buy more some day.-->>>

Which is exactly why when the video is shown in front of 30 or 40 family friends and relatives, it's possible that the artist has been elevated in the minds and eyes of a whole new potential market.

<<<--
That is not a decision that you can make for anyone, and the arrogance of saying that you can is mind-numbing. That's a powerful point.-->>>

It depends on what "decision" you are talking about. If it's an 'Informed" decision I would say your whole point rests on the public not knowing about copyright and how it restricts them from honoring a friend or family member, and for you be fine with profiteering from public ignorance of copyright restrictions can also be viewed as "mind-numbing".

<<<--
I'm sorry that you feel oppressed by the fact that people are not giving you things that you think should be free. But they aren't. -->>>

Another mirror argument to mine. Artists have received adoration, and money, from fans who would be outraged if they really knew they could not use their favorite artists music over personal, family owned images they don't plan to sell or broadcast, but are family heirloom keepsakes.

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How much should an editing professional pay to use one song on a video that is for family use only, and won't be used for sale, barter or broadcast, because your implication that I want it for free is incorrect.

[Rhett Allen]

Paul eludes to the fact that the "Artist" retains exclusive rights to their property, but other than Metallica, I can't remember any "artist" pursuing individuals for downloading their music. It's always been the music companies, which leads me to wonder, is it really up to the artist to decide where and how their music is used? I know those are two completely different scenarios but the fact remains, exactly who is calling the shots.
You could decide you want to use a song from "insert artist name here", you meet "said artist" or whatever, and he says "sure, I know it's a small deal go ahead." Maybe you even give them a few hundred bucks. Well word gets back to the record company and they find out they missed out on some potential big profits and they pull the plug on you. I don't know how it works on that front. I do know that the only thing the record companies are concerned with is making MORE MONEY and there is NEVER ENOUGH PROFIT to make them happy.
Look at the current stink with iTunes Music Store. NOW they (record companies) want a bigger piece of the pie! They didn't do anything to pursue an online market and when someone did the leg work to make it happen (Apple) and possibly slow the illegal downloading (that the record companies were crying about) all they can do now is cry that they want MORE MONEY! Talk about ingrates!! How about we trash the whole thing and go back to the original Napster! Did you like that better?! You greedy blood sucking a-holes! It's not like the artists are getting more money. I don't know when or IF I will ever buy another album from a major record label. I don't believe in their business practices. I do support smaller bands and indies though. I love to see smaller live shows and often will buy the bands CD while I'm there. I also like to use that venue to find artists I can pay for music in my productions. Nothing quite like keeping it local and a lot of bands are very happy to work for cheap or free, if you really need it.


Here is a pretty good analogy you might be able to relate to...
Have you seen the Vonage Commercials? The one's with the guy skiing off the roof of the house and the kid throwing the baseball bat thru the window and so on. What if you shot that video and they decided to use it and not even tell you much less pay you? They play those commercials ALL the time. You can bet they are bringing in MILLIONS of dollars as a direct result of your video! Don't you think you would like a piece of it? I mean, YOU made the video, they get the money. How is that fair? It's the same thing on a different scale with music. Sure you're talking about for personal use and that's probably fine (because nobody's gonna bust down your door for a home movie) BUT if someone PAYS you to do a home movie, it's not your music to give to them and it's not their music to take. The band probably already has a music video and I doubt the family is in it.
Like I said before, I don't know how the wedding guys deal with this but it would scare me silly in this day and age.