Music Legality for Slideshow Video

[Jeff Emery]

Steve,
I certainly respect your opinion. And, I do not condone nor advocate the use of copyrighted material without proper permission for such use.

But the simple fact is it happens all the time. I'm not going to argue against being ethical. But I don't know what any particular person's situation may be. There may be a financial need that person has that would make one overlook the copyright laws and ethics to produce some income that puts food in the bellies of his kids or a roof over their heads.

The OP like so many others is looking for an angle to sidestep copyright issues. You know, I know, and the OP knows there is only one right way to use copyrighted material and that's with permission.

But if one chooses to be a copyright violator, one better make sure it can't get traced back.

My position is this:

1. Copyright violation is unethical and illegal.
2. Cover your butt if you choose to be a violator.
3. No one is responsible but you.
4 If you get caught, don't come whining about it.


J

[Steve House]

Your point number two is my major sticking point in that it approaches the justifications of the drug dealer or shady business operator ... "I have to drive a Hummer to get respect in the 'hood and the only way I can afford it is to deal crack." or "It's too expensive to dispose of this toxic waste according to law ... there's a big landfill up the road that they never lock at night, I'll just dump it there at 1am and no one will be the wiser." I repeat, one's ambitions to retain a single customer or even one's entire business, are never worth becoming a thief to achieve. The fact one might get away with it is irrelevant ... having a sense of personal ethics means one absolutely refuses to do what one knows is wrong no matter what the tempting self-rationalization. The regrettable fact that there are people in business who have no ethics does not justify one abandoning one's own even if it means the competition sometimes gets a leg up.

[Dave Blackhurst]

I think we should take severe exception to your analogies here Steve... Toxic waste and dealing drugs are issues of "public safety" and concern... IP theft is NOT. Your eqation of the two borders on offensive.

I know the "industry line" is that IP theft is still theft, and all (mis)users of media should be shackled and tarred and feathered if they don't pay money each time they listen to/watch the media they purchased rights to... which would result in only one thing - no one would buy or use MEDIA... sort of counterproductive...

There's another thread here about how Hollywood was a big offender when sending out "promos"... Funny how in order to PROMOTE media, you of necessity must make copies and SHARE it, preferably with a methodology for reasonable compensation. PLUS, owners of a "license" (which is what one really owns when one BUYS media) have reasonable rights to fair personal use of that media.

I disagree very much with the "everything should be free" crowd, but I also disagree with the "use a song, go to jail" (or lose everything you have to our attorneys) mentality.

NO ONE benefits from overly restrictive aproaches to media distribution, any more than anyone benefits from "free" sharing.

YouTube has already figured out a model to compensate copyright holders, I doubt there will be too much more whingeing over this, as any artist realizes that people have to SHARE (at least to some limited degree) their "interests" (i.e. "this band is really cool, have you heard them?") or the artists will remain "nobodies".


I will comment that the OP was reading parts of a contract that to me seem to apply to ONLY the photo/visual media, and don't seem to relate to the "audio assets", FWIW. While I know in traditional "Hollywood" film terms, you've got all sorts of licensing issues, I still argue that the current licensing scheme is terribly outdated in a digital media context. Media shifting has already been upheld as fair use, and I go back to the "Carterphone" analogy to contend that adding audio media one already has purchased to video assets for personal use would be very difficult if not impossible to prove "damages" for... and no one is harmed, nor is the public.

We are living in a time when everything is 1's and 0's, our laws are based in vinyl, paper and celluloid... there's bound to be some confusion when anyone with a computer (or even a cell phone) has virtually all the horsepower required to record, display, and transmit those 1's and 0's in cohesive form as a "movie", a "book", or a "picture", at their fingertips.

[Steve House]

Originally Posted by Dave Blackhurst

I think we should take severe exception to your analogies here Steve... Toxic waste and dealing drugs are issues of "public safety" and concern... IP theft is NOT. Your eqation of the two borders on offensive.
....

Sorry if you find the parallels offensive but they are indeed very accurate moral analogs. Facts are facts and your discomfort with them perhaps indicates that you know in your heart of hearts that your argument against rigorously respecting IP rights, inferring that it is merely a matter of personal choice, is weak. You are arguing that since an individual infringment of IP rights is both easy and doesn't inflict direct damage on the IP owner in the sense that stealing his car would be taking away something that he already has - that it's sort of the moral equivalent of parking over the limit or speeding on a deserted stretch of road - it doesn't really directly inflict harm, so it is an acceptable moral choice to do it. You apparently see infringement as a harmless technical violation of a law that is arbitrary and does not represent an ethical position, malum prohibitum instead of malum in se. To use the speeding analogy offered, you apparently see it as speeding on a deserted highway while I see it as speeding on a crowded one or through a school zone during recess, acts that endanger others and thus are inherently wrong. Each individual act of infringment does, in fact, inflict harm, both directly and indirectly. People choose to enter the profession of creating and distributing music in order to earn a living. They are exploiting talents and skills that they possess that is in short supply in the general population in order to support themselves and their families. When you take and use the product of that labour without meeting whatever conditions and fees they choose to require of you in order to be a consumer of their product, you deprive them of income they otherwise would have received. Perhaps you would find an analogy of getting your toothache fixed and then stiffing the dentist on the bill because he's earning enough money without taking yours to be more palateable. In any case, you are taking away their right to enjoyment of the fruits of their labours by using those fruits for your own enjoyment and purposes without proper payment. Any way you cut it, that's just plain the wrong thing to do, even if it's easy to get away with it. IP does not belong to the People, it is private personal property belonging to its creators to dispose or exploit as they see fit - we have no right to usurp their private property rights for our own devices..

I will comment that the OP was reading parts of a contract that to me seem to apply to ONLY the photo/visual media, and don't seem to relate to the "audio assets", FWIW. While I know in traditional "Hollywood" film terms, you've got all sorts of licensing issues, I still argue that the current licensing scheme is terribly outdated in a digital media context. Media shifting has already been upheld as fair use, and I go back to the "Carterphone" analogy to contend that adding audio media one already has purchased to video assets for personal use would be very difficult if not impossible to prove "damages" for... and no one is harmed, nor is the public.

I'm certainly not suggesting that media shifting should be considered infringment, that one should pay a fee each time one listens to a song, or that one should be prosecuted for adding a song to a video one has made for one's own private personal use. The key elements in media shifting etc are "private personal use" of the person making the copy. It's legal for you to tape the Superbowl tomorrow for your own use but it's not legal for your corner sports bar to tape it so they can run highlights for their customers during the coming week. But our OP is producing an audio-visual work for sale or other distribution to a third party, his client. He is consolidating several copyrighted sources - photographs, music - into a new derivative work, copyrightable in its own right, then transferring or licensing that work to his client. That is an entirely different thing from his creating a show from materials that HE owns for HIS own private personal pleasure in viewing it. His CLIENT may be using the resulting work for private enjoyment but the person CREATING the show, the one doing the actual copying, is most defintely not. The act is no fifferent from Sony taking the a song written by a songwriter, recording it, and selling the recordings without paying the songwriter for his original work - the scale is different but the act is the same. When one transfers or publishes the copies he has made to a third party, one is no longer acting as an individual making copies for private personal use.

And in case you're wondering, I do put my money where my mouth is. For example keygens for a number of pricey software applications are freely available on the Web that would have allowed me to use copies free of charge. Instead I chose to purchase regular retail copies of those packages, to the tune of thousands of dollars out of pocket that I wouldn't really have had to spend had I chosen another route. Why? Becauise it's simply the right thing to do ...Does that make me a fool in your eyes? If so, so be it.

[Paul R Johnson]

This always happens whenever copyright gets discussed. I made the mistake a long time ago of attempting to put forward the moral viewpoint. what is right, honest and above board gets dismissed because it's 'just copyright'.

I don't think there is a US equivalent, but of a client here in the UK wants to use music on a DVD we can license a short run quite quickly and simply, and the client just pays for the licensing and maybe some admin.

Some people see copyright as a serious issue, and others dismiss it. I don't get upset any longer. Here, the copyright collection agencies are universally seen as 'the enemy', but not to the people they collect for!

[Steve House]

Originally Posted by Paul R Johnson

...
I don't think there is a US equivalent, but of a client here in the UK wants to use music on a DVD we can license a short run quite quickly and simply, and the client just pays for the licensing and maybe some admin.

...

Same over here in the colonies, except not so easy and not so cheap. But music clearance agencies abound who can expedite the whole process for indy filmmakers for a not-too-outrageous fee and there is a lot of excellent music in either buy-out libraries or from distributors such as Magnatunes for the wedding and event crowd. IMHO, there's just no excuse for not obeying both the letter and the spirit of the law. After all, we too are producers and owners of intellectual property. Erode the rights of the music owners and we erode our own rights in the process.

[Dave Blackhurst]

Steve,

You missed my point entirely in re PUBLIC safety, and you also miss the point of your own use of the word ENDANGER. BIG difference. You don't execute someone for jaywalking (unless maybe they cause a big pileup and piles of bodies, and you've got a DA up for election). You do understand the difference between minor crimes and serious ones, right? Thus my objection to your analogies - copyright infringement, while "serious", is not in the same league you tried to ad hoc associate it with. And you say my argument was weak... well, prolly was anyway <wink>! I guess it's been too long since we "discussed", missed you, buddy!

I don't say that the copyright holder doesn't potentially suffer some (likely nominal) damage if someone makes a copy here or there or uses the work, but they won't die, nor will anyone else. The public at large will not suffer deleterious effects or great financial loss. There is a vast difference between a public safety issue and a "petty crime", despite what certain industry entities would like to have us believe - they'd shoot granny if they could... but instead they'll take her to the cleaners to set "an example" - and then they wonder why "the music biz" ain't what it used to be and sales declined?

Arguably, if the person the video is being made for owns and pays for the music, provides that music to someone to shift to the PRIVATE use video, I'd like to see how you show and prove DAMAGE. PLUS, the artist might (or yes, might not, if the production is lousy) gain some extra exposure resulting in more sales (didn't Chris Brown sell a boatload of his "IP" when his music was attached to a viral video of a wedding procession? He was "harmed" all the way to the bank, and I'll bet the association with a happy event prolly polished up his tarnished image to boot). Didn't see him rushing to sue for infringement... wonder why?

I've watched paranoia cause artists to piss away their own future out of fear they might be ripped off, while ignoring the fact that if you are going to be in the public eye and potentially popular, some things will slip through the cracks, and you won't pick up every bloomin' penny. Not to mention if you try, you might just tick off your fan base enough that people might forget who you are or what your symbol used to be or whatever... It's a two way street, and people don't like greed anymore than they like theft, two very related things.


To borrow your speeding analogy, it's pretty common knowledge that minor infractions of the speed limit are not even worth the trouble for the cop to pull you over and the Court to process the ticket - the fines increase with the seriousness of the violation. That's why they go after the gross offenders - more profit, and more public risk.

A better analogy is the infamous red light cameras, which I've watched trigger when there was obviously NO infraction, but I'll bet someone got stuck with a huge bill because someone wanted to make money - there are lots of issues and reports of funny business with those things... WHY? Because someone can make a buck and will cut corners to do so. They just have "corporate" status and government approval (although cities are pulling those things out now... HMMMM), where the individual is ripe to pluck.

Before you point out that I'm advocating "cutting corners" as well, I'll just say, yep, because there's no nifty system in the US like the folks in Jolly old England, and I hear some other progressive places, have. Perhaps we should have skipped that whole "revolution" thing after all, eh?

[Pete Bauer]

This discussion is wandering into tangential bickering and political comments, which as you experienced DVi members know is not acceptable. Please stick to directly answering the OP's question, and only that in his thread.

Of course, the best answer is from an IP lawyer hired to render an opinion pertinent to Evan's concerns, based on all the facts at hand.

[Steve House]

So you are saying you find it ehtically acceptable for someone to go buy a copy of the current hot CD, replicate it some unspecified number of times,and then sell those copies in his corner store or over eBay (perhaps as long as some of his competitors are also doing it), since all of the purchasers of those copies are doing so for the private, personal pleasure of listening to the music thereon?

[Dave Blackhurst]

Nope, I'm saying that, just as the OP suggested from the contract as to IMAGES, which a client can have the rights to, one can also have the rights to play an audio track - I find it unlikely you could prove damages if that audio track was played simultaneously with a slideshow or movie in PRIVATE use - putting them onto the same media is a simple logical extension of the use of one's media for personal enjoyment... and arguably media shifting, ala the Carterphone case.

Apples and oranges. If a client provides media they own a license or rights to, be it audio or video and signs off on it, it might not keep you out of court, but would be an affirmative defense. Now if you make hundreds of copies (or even a couple dozen), it's now pushing the envelope. As a simple practical matter, most personal videos are going to be seem a few times by a handful of people for private enjoyment, not shown on a big screen for paid admission...

YouTube of course presents another ball of cheese, should a video "go viral". But welcome to the digital age, and apparently they already have methods short of filing litigation to "solve" the problem, 'nuf said.

This problem will no doubt solve itself sooner or later, while the debate is hopefully educational, it's not something we will solve here.

[Steve House]

Originally Posted by Dave Blackhurst

Nope, I'm saying that, just as the OP suggested from the contract as to IMAGES, which a client can have the rights to, one can also have the rights to play an audio track - I find it unlikely you could prove damages if that audio track was played simultaneously with a slideshow or movie in PRIVATE use - putting them onto the same media is a simple logical extension of the use of one's media for personal enjoyment... and arguably media shifting, ala the Carterphone case.

....

Absolutely no disagreement that one has the right to set up the old Carousel projector in the living room, grab a couple of boxes of slides of a road trip down Route 66 in the parent's '56 Plymouth, put a stack of 60's song CDs in the player, invite in a bunch of friends and enjoy the night away. Such a show is most defintely for the private, personal use of the person who has prepared it (unless he charges admission). But a business operator, even a small part-time or hobby business, who takes those photos, digitizes them, assembles them into a computer slide show such as a Powerpoint PPS file, adds an audio track consisting of digital COPIES of those same songs, has created a new work, fixing the show into tangible form and by so doing has created a new, copyrightable, derivative work which he then sells or transfers back to the client in exchange for a fee. The resulting show is no longer for the personal private enjoyment of the person who physically made the copies and prepared the final show, ie, the author of the resulting computer file. It is a product created by one person and subsequently sold or otherwise transferred to another person. The fact it has been done by a small local or hobby business with one customer for the product instead of a major international corporation with thousands or millions of customers is irrelevant

[Dave Blackhurst]

And again the interesting conundrum... digital technology rears it's ugly head.

For obvious reasons you have to agree that dragging out the old slide projector and playing back some tunes on the old 8 track simultaneously isn't "illegal" or violating any "rights"... but how many people will even know what the playback equipment I just mentioned IS, let alone use it to play back "media"?? Technology has changed!

This is why people come in to digitize their old slides/videotapes, etc. My "vinyl" hasn't been out in years - when it was, it was to convert it to digital format. I can shift the format easily, as can almost anyone with a computer, it's not illegal, nor violative of any artist's "rights"... RIGHT?

Let's borrow a phrase - "technology doesn't violate copyright, PEOPLE violate copyright..." Yeah, I cringed as I typed it, but it "works" - the technology advances that allow an artist to produce a complete work in his home studio instead of renting out a production facility/studio also allows the potential for 10 bazillion people to access/copy it on the Internet...


SO, to adress what the OP's contract question is, the contract by the vendor specifies that the client has the rights to anything they bring in to be "transferred" (IOW, it won't be used in it's orginal form simultaneously with the shifted/digitized/transferred media). This is sort of like how a mechanic would reasonably expect that the car someone brings in is THEIR car, not one they stole from the neighbor, and wouldn't be liable for having perfomed work on the car if it turned out to be stolen... or how a pawn shop has to have a clause about stolen merchandise from the "owner" who presents it...

It's a clause that protects the vendor against inadvertant copying of copyrighted material or images (obviously they are going to be making copies for the client, but should they have to clear EVERY POSSIBLE rights issue? Re-donk-u-lous!) - now I'm guessing if someone brought in a bunch of pictures of say "John Wayne" (the actor), and wanted a tribute slideshow, there might be some red flags, but let's say that person had collected all those images, and wanted them in a format his grandkids could/would watch and enjoy his love of JW... He could go buy a scanner or whatever (legal), or just hire someone to do it for him (?!).

I have trouble with "criminalizing" the SERVICE of media transfer (albeit into a "new work") for private and limited use. It just doesn't hold water, even if technically it's "illegal". I don't have an easy answer for when someone decides to "share" that resulting work on the internet, but that is (or should be) the CLIENT's choice/responsibility. A product or service provider generally can't be held accountable for subsequent illegal uses of that product or service by a client.

THAT's the sort of thing that having the client sign a statement that they have the rights to the media presented for transfer, is designed to cover. I'd add a clause that any subsequent use of the resulting compilation is for the sole personal and private use of the client and they are solely responsible for it (sort of like those other stupid disclaimers manufacturers have to make so stupid people won't sue them for having done something STUPID with the product).

Hopefully that is helpful...

[Steve House]

The problem is that the result of the media transfer is a new, copyrightable work. A piece of music fixed in juxtaposition to an images becomes a new item of IP that is separate and distinct ffom the original source material. This new IP is then being transferred to a third party.

The illegal use is not the customer sharing the show on the internet, it is the show's preparer juxtaposing the music to images without a sync license.

You point would be closer to valid if the customer had bought a CD at the music store and brought it to you to duplicate so he could take a copy with him as he travelled in the car, leaving the valuable original at home. That would be a simple media transfer. But using the music in a slideshow or video is not just a media transfer, it is using the music as source material for a piece of new intellectual property, a whole new ballgame. Legal media transfer is ripping a CD you own onto your own MP3 player to take with you jogging. Illegal copyright infringment is ripping that same CD to your friend's MP3 player so he can have a copy too. The legality of providing the service of ripping CDs customers may own and bringi in onto their own MP3 players is still up for grabs AFAIK. But runnig a service where you can bring in your MP3 player and get your choice of tunes drawn from our library of CDs ripped to it at half the cost of buying new CDs of those songs would be blatantly illegal.

Remember when you buy a CD you do not get any ownership rights to the music contained on it. You own the physical plastic substrate disk and also a license to listen to the material carried on it. So it is very unlikely that the customer in question own any rights to the music he's bringing you and it could be argued in court when you are sued for infringment "So this guy claimed he owned the rights when he brought the project to you with music clearly bearing the plaintif's copyright notice and you believed him? Without even asking to see something to prove it? Ladies and Gentlemen of the jury, I ask you, would any reasonable person have bought that?..."

[Jim Andrada]

Ummm - why not send the CD and slideshow to a deserving outfit in the UK and have them put the pieces together using the easily obtainable license they can get there? Then there can't be any question that the syncing was done legally as license fees have been paid.

[Jim Michael]

The problem presented by the OP is the same one face by those producing event videos. Organizations such a WEVA have worked out some deals for their members to facilitate workable licensing arrangements, e.g. ZOOM :: Music Licensing for Videography & Digital Imaging - perhaps something like this might be of interest. No connection etc.