Can this doc "bypass" music copyright issue for editors?? (help frm Mr. Tauger?)

[Steve House]

Originally Posted by Brian Drysdale

Although if you check the Smartsound license they mention it being considered royalty free in US & Canada, which does raise the question about the other territories.

Apparently some countries don't allow for 'royalty-free' licenses and require fees to be paid to their performance licensing organizations regardless or place limitations on their extent. If that's the case in your country you'd have to deal with it with any music you use, not just SmartSounds.

[Paul R Johnson]

Just for info - the same thing is valid here in the UK - I'm not sure if there is a direct equivalent in the US, but we also have a license requirement when a copyright work is dubbed to a new new medium - so a purchased CD (clearly labelled for domestic use only on the edge) needs permission to be copied to the editing system and then transferred to the final product anyway. So as the client doesn't do this 'dirty deed', and you do, then if payments are due, you can't duck it because they told you to. As far as I'm aware, that's not actually a defence in any legal issue is it? If somebody asks you to do something illegal, a piece of paper saying they will be responsible and you won't, just doesn't work. OJ Simpson would have tried that one, I'm sure!

[Nigel Barker]

Also just for info here in the UK we generally wouldn't need to even try to use such a clause as we can licence any music for wedding videos & similar (which I guess the OP has in mind) for just a few pounds per disk. We don't need to keep track of what we use just abide by the rules & buy the appropriate PPL & PRS Limited Manufacture licence depending on the number of disks & amount of music used Limited Manufacture Licence (LM) They still haven't sorted out anything similar for using the same finished video online but when delivering physical product on DVD, Blu-ray etc it's simple & affordable.

[Gregory Alexander]

Sorry everyone, haven't had much time to respond here, but thank you all who responded with helpful info and suggestions! :)

Originally Posted by David Barnett

And I know what you mean about other people doing it, I second shot for a guy near me who I met with & was discussing his business & giving some pointers. He said the same exact policy (They must bring him the cd's) and spoke to me like it was a true law. Even would not begin editing until the bride brought him the cd's, sometimes delaying it for weeks. I wanted to laugh in his face & tell him it's completely illegal anyway so he might as well rip the songs off piratebay anyway but just let it go.

I'm glad to know I wasn't the only clueless editor with this belief (or wish, to be more accurate) ;-p

Greg

[Eric Olson]

QUESTION 1: Would the following language work?

If the contracting party desires to provide their own music for use in the video montage it is the responsibility of the contracting party to secure proper copyright permission for such use.

Description of sound recording ______________________________________________

Please check one:

[ ] I own all necessary copyrights and grant non-exclusive use of the sound recording
described above for use in the video montage.

[ ] I have obtained all necessary permissions from the copyright owner for the use of
the sound recording described above in the video montage.

[ ] All necessary rights for the use of the above sound recording in the video montage
belong to the public domain.

By signing below the contracting party confirms that the above information is correct and that the provided music may be legally used according to United States copyright law in the video montage.

Full Name ________________________________________
Contracting party (signed) ____________________________ date ___/ ___ / ___

QUESTION 2: To what extent do I need to verify the information above is correct?

If the provided music contains a copyright notice, it seems reasonable to check that the contracting party also has a note from the copyright holder granting permission to use the music. However, if the music is provided on media with no copyright notice, is the above document enough?

[Steve House]

There are several flaws in that approach but the most fundamental one is that as the program's producer the buck stops with you. You are the individual causing the copy to be made when you bring the music into your project timeline and place it alongside the images. As the one doing the copying, you are the one doing the infringing if the proper licenses or permissions haven't been obtained. You client cannot obtain licenses on your behalf or transfer any licenses that he has obtained to a third party such as youself. Then when you deliver the program to your client you are selling the copy that you have made to him and it becomes copying for a commercial purpose, more akin to commercial piracy than simply distributing copies.

What would happen in the event the copyright owner discovered an unlicensed use of their property and decided to make an issue of it, if you relied on a document such as you propose, is that you, not your client, would be the one to be sued. After you have fought it and lost (and you would lose) and you have lost your business assets, home, etc, you might then be able to turn around and sue your client to try to recover your losses. That could go a couple of ways ... one is that the court would hold that a contract to perform an illegal act is invalid on its face and toss the whole thing out leaving you holding the bag. The other is they rule that you have no course of action under the doctrine of "clean hands" - you must come into court having done no wrong yourself in order to prevail, for example you can't sue to recover some money you gave a dealer in advance for the purchase of some weed which he then failed to deliver - and your case against your client is dismissed. Or they may allow that the contract is valid, ruling in your favour that the client had indemnified you against loss and then your client says "Lots o luck collecting, chump" and walks away. Your chances of ever being made whole again are slim to none.

As an aside, if the person putting the show together is not the program's producer but an editor who has been hired by the producer or client to make a work for hire, it doesn't let him off the hook The producer as the person creating the final program AND his employee the editor are equally liable for the infringment - the copyright owner could go after either one separately or both of them together. So saying I'm only a hired editor doing what I'm told won't help.

[Eric Olson]

Dear Steve, Does your reply addresses the contract in the original post or my post above?

The modified language I suggested above is modeled after the agreements used at printing shops for copying things like books. The print shop is satisfied when the customer either states they are the owner of the copyright or provides a note giving permission and terms from the current copyright holder. If such a statement from the customer provides sufficient legal protection for the print shop and the employees of that print shop, wouldn't a similar statement from the customer about a sound recording be sufficient for a video company and the employees of that video company to safely copy the music onto the DVD?

[Chris Medico]

Eric,

Steve is addressing the updated version.

You can't write a contract that indemnifies yourself from copyright issues.

As a producer you are responsible - period.

[Steve House]

Originally Posted by Eric Olson

Dear Steve, Does your reply addresses the contract in the original post or my post above?

The modified language I suggested above is modeled after the agreements used at printing shops for copying things like books. The print shop is satisfied when the customer either states they are the owner of the copyright or provides a note giving permission and terms from the current copyright holder. If such a statement from the customer provides sufficient legal protection for the print shop and the employees of that print shop, wouldn't a similar statement from the customer about a sound recording be sufficient for a video company and the employees of that video company to safely copy the music onto the DVD?

The updated version.

Note that placing music into a film/video soundtrack is not simple copying such as when a print shop copies a book or magazine article. When you place music into a video in juxtaposition to the images you are copying for the purpose of creating what is known as a derivative work - the video is a separate copyrightable work that is based in part on the music - and different rules apply. It's not the same thing as Kinko's making a copy of a series of pages from a magazine, or TIVO'ing a program on TV to view later or even burning a copy of a music CD.

[Eric Olson]

Thanks for clarifying, Steve.

I think I understand the differences between derivative works and reproductions of the original and would agree a different type of license is required in each case.

If I understand what you are saying, then using client provided music in a video montage based on a written statement provided by the client that the music has been properly licensed is quite dangerous. Similarly, if music purchased from a royalty free music distributor turns out not to be royalty free after all, it appears anyone who inadvertently used that music in a derivative work could end up in court for copyright infringement. I find this very interesting.

[Gregory Alexander]

Damn. Too bad that wouldn't have worked. And here I was getting all excited after reading Eric's post just now. :-/
Yah, thank you Steve for that detailed clarification, helps me understand what you said before even more.
Eric gets an E for effort ;-p

[Gregory Alexander]

Originally Posted by Eric Olson

Similarly, if music purchased from a royalty free music distributor turns out not to be royalty free after all, it appears anyone who inadvertently used that music in a derivative work could end up in court for copyright infringement. I find this very interesting.

You have a good point there Eric.
Has anyone ever come across this issue before (reading about it or it happening to you personally)?

I would ASSUME that the major players that have been around for several years would make sure 100% of their stock music would be 100% legal, but I'd hate to limit myself to the big guys because there's also occasional nice stuff that's made available up on smaller cheap/free loop & fx sites made by the company or by individual users uploading their (or supposedly their) content like soundsnap.com.

Steve: what are your thoughts on this?

[Jay West]

Originally Posted by Chris Medico

Eric,

Steve is addressing the updated version.

You can't write a contract that indemnifies yourself from copyright issues.

As a producer you are responsible - period.

This is a niggling point, but I think you meant "immunize" rather than "indemnify."

You certainly can write a contract that indemnifies you. That is basically what liability insurance does. "Indemnity" shifts who has to come up with the money for the judgment or settlement and the legal expenses of defending the claim. Basically, an indemnity provision can do two things: (a) allow you to turn over the defense and payment to somebody else (insurance or your clients, say) and (b) allows you to get reimbursed for paying those things if the others didn't come up with the money in time for you to avoid having to pay out of your pocket. If you were going to write an "indemnity" provision into the contract, you basically would be telling the prospective clients that you will incorporate their choice of music into their video as long as they agree to pay your costs if you get sued for using the recordings they want.

Whether this kind of provision would be good for client relations is a different question, as is the question of how much it could actually help you if somebody decided to sue you or get you arrested for criminal misappropriation of intellectual property.

[Jad Meouchy]

You can do whatever you want, use whatever you want, under fair use principles. The legal issues come in with distribution. I don't know specifically how you are selling your media but if it's for personal use then you can pretty much sidestep all potential legal problems. You only get into hot water as the producer if it's for a tv show or something that will air over public or certain private channels..

so I'm not sure why everyone is so paranoid about you holding all liability, you absolutely don't hold all liability. The distribution parnter would get sued, not you. But then they would sue you, and if you have a contract stipulating that you were not handling music rights, then you are good. You're just a content producer, which is only half of the industry. Content distribution is the other half.

[Shaun Roemich]

Jad: not even CLOSE to being accurate! It's exactly this type of misinformation that keeps these discussions popping up EVERY MONTH on here...