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

[Jad Meouchy]

There is the law and there is reality, and fair use comes down to intentions. If you intend to make money off of selling DVDs then you better own the copyright to whatever's on them. You just have to word your contract differently to state those intentions. You are providing video services not video products..

Do you run around with release forms for people at the wedding? Do you blur out all the visible brands? Then the music copyright is the least of your concerns because you technically can't even show the picture. And how do you know that those royalty free libraries actually have those tracks licensed? Are you verifying their paperwork with the author, are you responsible for all of that?

Weddings are doc, fair use holds. Yes it's a hotly contested issue and yes you can find lawyers who will defend both sides. When all else fails, use common sense. YouTube - Broadcast Yourself. exists and continues to exist. This shouldn't be possible according to copyright law.

[Gregory Alexander]

I've wondered about that fair-use thing myself but it seems it only applies to things like journalism and other non-commercial "reporting", and other things I'm sure I'll understand better once I get around to searching around the forum for threads on this sec. 107 of the copyright law (title 17, U. S. Code)
U.S. Copyright Office - Fair Use
DVD Ripping Guide

In the meantime, although I'm tempted to seriously consider what Jad is saying, I'm still too wary of this.

Although it makes me wonder why all those people in that famous viral wedding dance video never got sued for using copyrighted music. Among countless other examples on the internet one could give.

*sigh* 3 thread pages later and I'm still clueless. Oh well. ;-p

G

[Shaun Roemich]

Originally Posted by Jad Meouchy

There is the law and there is reality, and fair use comes down to intentions. If you intend to make money off of selling DVDs then you better own the copyright to whatever's on them. You just have to word your contract differently to state those intentions. You are providing video services not video products..

No. Wrong. Copyright infringement does NOT require the intent to profit. In fact, all the "I am not profiting from this in any way" B.S. "disclaimers" that have popped up on YouTube do NOTHING in ANY legal sense and are the result of "The Internets" telling people that Fair Use includes posting songs with their World of Warcraft videos online.

[Jay West]

"Fair use" is a both a technical term and a phrase that gets bantered in discussions to the point that it seems to be turning into a generic term. As seems to be the case here, people use "fair use" to refer to everything that is, at one end of the spectrum, classified as parodies and appropriately minimal quotation in scholarly/technical/professional discussion and teaching. At the other end of the usage spectrum, it seems to get used by some people to cover personal uses such as photocopying cookbook recipes for a personal collection, copying your purchased CDs to your iPod, adding music to saved games, recording tv programs to your DVR for later viewing/re-viewing, etc. So, if I make a video of my own wedding for my use and I own a CD of the music I want, I can use it in my private video without violating copyright, and some people will call that "fair use."

It is an entirely different kettle of wriggling legal terminology when we get to distribution, whether via the net, DVDs to be played by others, and etc.

Regardless, none of that use or misuse of the terminology has anything to do with what is being discussed here. Nor does it have anything to do with risk assessment, which seems to be the point of some comments.

Risk assessment is saying: "what are the chances anybody is going to do anything about it if I use this recorded music in this DVD of a wedding video or use it in my viral You-Tube clip?" A lot of this kind of stuff is simply too trivial for most copyright owners to care about. Or, the use might be apparent (as with that viral You-Tube clip) but the copyright owner might see him/her/itself benefiting more than being harmed. Or, maybe does not care. Or any of many other seemingly arbitrary reasons for acting or not. None of this makes it any more or less legal, nor does the fact that you are not immediately struck down by lighting make it legal, either.

Confusing risk assessment with legality leads to the kind of unfortunate discussions that so provoke Shaun and move us away from the original question. The original question is whether it is possible to protect yourself from possible copyright infringement issues by putting some kind of provision in your contracts with your wedding clients? It does not help to say that you might find a lawyer to argue that you didn't violate the copyright. When a lawyer tells you that you have an argument, that means very high legal fees. The point we were talking about is whether or not you can come up with a contract provision that allows you to avoid having to participate in the argument in the first place. So far, the answer is pretty clearly, "no."

[Shaun Roemich]

Well said, Jay.

[Gregory Alexander]

I can see I'm unearthing old repetitive discussions here, but echoing what Jad said, intent DOES seem to come into legal play here, at least according to Standford Law School Center, but that intent does need to show in certain ways, and even then you're still not 100% protected as there's so much potential grey area:
Stanford Copyright & Fair Use - Copyright Protection: What It Is, How It Works
http://cyberlaw.stanford.edu/fair-use-project

[Excerpt]
"Often, it's difficult to know whether a court will consider a proposed use to be fair. The fair use statute requires the courts to consider the following questions in deciding this issue:

Is it a competitive use? (In other words, if the use potentially affects the sales of the copied material, it's usually not fair.)

How much material was taken compared to the entire work of which the material was a part? (The more someone takes, the less likely it is that the use is fair.)

How was the material used? Is it a transformative use? (If the material was used to help create something new it is more likely to be considered a fair use that if it is merely copied verbatim into another work.

Criticism, comment, news reporting, research, scholarship and non-profit educational uses are most likely to be judged fair uses. Uses motivated primarily by a desire for a commercial gain are less likely to be fair use).

As a general rule, if you are using a small portion of somebody else's work in a non-competitive way and the purpose for your use is to benefit the public, you're on pretty safe ground. On the other hand, if you take large portions of someone else's expression for your own purely commercial reasons, the rule usually won't apply."

And here's a transcript from NPR interview with the director of The Fair Use Project at Stanford Law School's Center. Also examples in both below of how the fair-use/copyright/DMCA laws on BOTH sides are often ignored or mis-used. It's still a mess:
Stanford Center Advocates for Fair Use on Web : NPR
Fair Use Principles for User Generated Video Content | Electronic Frontier Foundation

Excerpt from EFF:
"Creators naturally quote from and build upon the media that makes up our culture, yielding new works that comment on, parody, satirize, criticize, and pay tribute to the expressive works that have come before. These forms of free expression are among those protected by the fair use doctrine.

Copyright owners are within their rights to pursue nontransformative verbatim copying of their copyrighted materials online. However, where copyrighted materials are employed for purposes of comment, criticism, reporting, parody, satire, or scholarship, or as the raw material for other kinds of creative and transformative works, the resulting work will likely fall within the bounds of fair use.

But a commitment to accommodating "fair use" alone is not enough. Because the precise contours of the fair use doctrine can be difficult for non-lawyers to discern, creators, service providers, and copyright owners alike will benefit from a more easily understood and objectively ascertainable standard."


There seems to be alot of grey-area (hence the careful wording of "usually", "likely", "generally", etc) that's only determined in the court if/when you get sued (such as someone like myself who's not an educational organization/journalist, am using the WHOLE song, yet my work falls under the "commentary" or whatnot fair-use catagory...kinda 50/50 with that one, not worth taking the chance).

Lots of stories everywhere in the media of the little guy getting scary threatening "Cease and desist" letters from the music co's for using their work and YET a select few of these cases where the situations were legitimately fair-use, and they sought help from non-profit sources (like Standford's), the big guy has withdrawn the threat, admitted to mistake and backed off.

The only reason I haven't taken the free-use stance with my work yet is because it's not 100% defined in the public realm as there's too many variables and alot regarding a work's fair-use status is determined on a case-by-case basis in court, which is exactly where I DON'T want to end up. Seems large record labels toss around their threat letters assuming everyone using their copyrighted material is evil simply because they don't have the time nor desire to investigate each and every situation. And although one CAN fight back for little to no cost, it's doubtfully going to be worth the time for the average small-time editor/producer.

If there's ANY risk of me actually being even partially legitimately in the wrong legally producing videos using copyrighted music that would fall under that broad "parody"/"commentary"/"reporting" etc category then I will avoid it all together, even though it seems alot of what I want to do as a visual artist (aside from the pet memorial thing) would GENERALLY (there's that scary word again) fall under one of the several fair-use categories.


I really hope I can find some answers here, cause I've spent so much time researching Fair-Use, and I STILL can't tell whether or not that light at the end of this tunnel would be my creative freedom or an oncoming train :-/

G

[David Barnett]

There is no contract to get you out of it. The best way to think of copyright infirngement is if a copyright holder (ie. Rolling Stones, Aerosmith, Pearl Jam, Kanye West etc ANYBODY) could charge you money (ie charge you for the wedding dvd, the youtube clip, the goofing around with friends video & you downloaded the song from amazon for $.99), then IT IS COPYRIGHT INFRINGEMENT.


No contract, loophole, non-profit etc clause will get you out of it.

[Chris Sgaraglino]

So I think Gregory is trying to get his head around this whole "what can I and what can't I really do" thing that we all sit in bed at night and contemplate. I don't think he is*
intentionally trying to break any laws or cheat anyone out of their music royalties, none of us are.

Weather legalities is looked at, the music industries are not looking at this industry seriously. I have "now had" a client that wanted to use a very specific song from 1970 (not a top 40 ever) in their video. Being new to weddings (I shoot mostly commercial work) I did the respectful thing and called Sony ATV, filled our their sync license form and submitted it. A month later I get a call from them wanting $1,000 for the client to able to use the video online for 30 day (yes, only one fricken month) and with that agreement, $100 per 10 DVDs additional.

Totally outrageous!

So here are uncouple of questions for you out there:

1. Is there a difference between using a downloaded MP3 version of the song as an audio track, or cording the couple dancing and getting the song/audio as incidental background music?

2. Does recording the song as incidental background still requirer a sync license?

Assuming both require a license, and knowing good and well a B/G is not going to pay A thousand dollars to show this video for a month;

3. How do you tell a bride that the song she fell in love with the groom over, CAN'T be in the video without paying thousands?

4. Do you have a clause in your contract that idemnifies you from being sued when the bride figures out you didn't/don't have the music to the first dance in the final product, and she goes ballistic?

All 4 of these are legitimate questions, because, surely, if you tell the B/G all this, you'll NOT have a client for very long - the next guy that doesn't give a crap about the law will be the guy with the camera! (not that that is right - but it is a fact).

[Steve House]

Originally Posted by 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.

"Personal Use" would be a situation such as you shooting your own kid's birthday party, in post adding "Happy Birthday" to the soundtrack, and then showing the resulting program to your own friends and family. Shooting someone else's kids, putting together the identical program, and giving it to the parents as a present is enough to take it out of the realm of "personal use" because it's not the personal use of the person actually preparing the program. Hiring yourself out to a couple to make a video of their wedding is absolutely NOT your own personal use. You don't need to be broadcasting or distributing publically to run into copyright issues.

Fair Use is a defense against allegations of infringment. It can only be raised as a defense once you have been sued. In the US it only applies when the work in question is being copied for purposes of current-events news gathering, criticism and review, academic research, classroom teaching in grades K-12, or parody. Copying for any other purpose is not Fair Use. It is not a blanket "use whatever you want whenever you want it" get-out-of-jail-free card.

You can write any contract you want with your clients. But whether a court would enforce that contract is another matter. Courts tend to be very reluctant to enforce contracts whose purpose is to sidestep what would otherwise be your legal obligations. You friend might say "Run that red light and if you're caught I'll pay the ticket", they might even put it in writing, but no court in the land is going to make them actually pay it if you're caught. You'll be the one on the hook. In the case of copyright, as the person preparing the derivative work you have the obligation to make sure all required licenses are in place. If they're not in place you can't have a contract that shifts the responsibility to your client. You will be the one sued for infringment. Then after you've incurred all the costs etc of that legal case you MIGHT be able to recover from your client if you have such a provision in your contract with him. But it would be foolish, IMHO, to count on the courts enforcing it.

[Chris Hurd]

To simplify, "fair use" is NOT a right nor is it a license. It is a defense.

"Fair use" is not for you to claim. It is a finding that a judge or jury makes about you (hopefully).

[Jay West]

Chris Hurd is exactly right. I would add that, if there is a case brought, the "fair use" question WILL be decided. "Hopefully," means you hope it will get decided in your favor.

As for Chris Sgraraglino's four questions, each has been covered extensively in many other threads.

Originally Posted by Chris Sgaraglino

1. Is there a difference between using a downloaded MP3 version of the song as an audio track, or cording the couple dancing and getting the song/audio as incidental background music?

Not really.

Originally Posted by Chris Sgaraglino

2. Does recording the song as incidental background still requirer a sync license?

Yup.

Originally Posted by Chris Sgaraglino

3. How do you tell a bride that the song she fell in love with the groom over, CAN'T be in the video without paying thousands?

I assume this is a rhetorical question about risk assessment.

Originally Posted by Chris Sgaraglino

4. Do you have a clause in your contract that idemnifies you from being sued when the bride figures out you didn't/don't have the music to the first dance in the final product, and she goes ballistic?

"Indemnity" is the wrong term. (See my earlier post above).

Anyway, she can't sue you for refusing to violate copyright law. A suit like that would get dismissed as facially frivolous within a couple of weeks of getting filed.

And, there is a frequently repeated but utterly wrong misconception that the couple could sue you for bizillions of dollars for "emotional distress" of going ballistic. Can she do this? Nope. You have a contract. She can only sue you for breach of contract. Nobody gets "emotional distress" damages in a contract case. She gets only contract damages which are the difference in value between what she paid you and the presumably lesser amount that the product is actually worth.

The real problem is not legal liability in this instance. It is bad customer relations.

So, as with much else in videography contracts, it helps to be explicit with the customers. If you won't use any copyrighted audio, just say that. Then customers won't bad mouth you for refusing to do something you should have (but did not) tell them you would not do. If you are willing to infringe by including a first dance on a DVD but won't use the copyrighted audio in that Facebook trailer, then tell them that. Tell them you will provide substitute soundtrack for anything for web or widespread distribution.

None of this protects you when some overzealous homeland security droid suddenly drops out of the sky with an indictment charging you with economic terrorism by piratically expropriating copyrighted materials. If some feds or Sony or whomever decide to play whack-a-mole with minor infringers --- maybe because they figure the small-timers can't afford the high legal fees of trying to contest the charges --- will you have a legal leg to stand on? Nope. You have committed a technical infringement of somebody's rights. Just like all the other ones where your wedding video neglects to blur out a branded-label of the champagne bottles and does not get signed releases from every guest whose image appears in the video. (These are the kinds of questions that law students get asked to analyze in the exams.)

So, if it is possible, how likely is it? Well, that is not a matter of legal rights or defenses like "fair use." It is only a matter of playing the odds, which is to say, risk assessment.

Why am I talking about risk assessement rather than legal rights? Because most of the time, most everybody thinks it is absurd to to take things out to the nth degree of enforcing every conceivable legal jot and tittle like those that Jad mentioned above (things like blurring out any labels, getting releases from every guest, etc.) That does not mean that folks do not have those legal rights. If they want to enforce them, those rights do exist. Even though most people regularly disregard the jots and tittles in everyday life because they think the jots and tittle are absurd. Most of those whose rights are infringed are similarly inclined.

Even the most protective and/or avaricious usually only really care when it gets to the threat of mass distribution and other commercial piracy. Why is this? There is no viable system (here in this country) to get an inexpensive, low volume limited use license. It is economically infeasible for the likes for Sony to administer one for themselves. So, if you make a couple of DVDs for the bride and groom, nobody will care. Usually. Make a clip for the bride to have on her facebook page with a soundtrack that anybody can copy for free for their own use (as opposed to paying, say, iTunes for a download), and the rights-holders may see the threat of Napster-like "sharing" ([i.e., organized piracy.) Plus, they've got a host to talk to, and that is much more economically rational way to shut off that spigott.

Again, this is risk assessment not legalities. Do not confuse them.

Now, after all this criticism of the law, let's look at this from a different perspective for a moment. Let's say that one of the guests at the wedding has figured out how to extract copies of your video as you are shooting the wedding. The guest extracts that video, gives it to the bride to put on her website. The bride now refuses to pay you because she has a video and does not need yours. See where I'm going with this? If the bride and the guest have a contract, do you think they can avoid legal liability to you? Would anybody here seriously say there is nothing wrong with what they did?

[Steve House]

Originally Posted by Jad Meouchy

...
Weddings are doc, fair use holds. Yes it's a hotly contested issue and yes you can find lawyers who will defend both sides. When all else fails, use common sense. YouTube - Broadcast Yourself. exists and continues to exist. This shouldn't be possible according to copyright law.

Fair Use is not a blanket applying to all docos just because they're docos, it may apply to some of them when the doco falls into the category of current news coverage or one of the other categories defined by the law. Weddings don't fall into any of those categories and Fair Use does not apply to them.

[Eric Olson]

Could this type of agreement avoid copyright issues for editors?

A customer who is unable to find suitable music in our library may prefer to order a silent video montage that has the exact running time of a particular piece of customer owned music. Please indicate your choice below:

[ ] I prefer a video montage with music selected from the licensed music library.

Title of music __________________________________________

[ ] I prefer a silent video montage.

Silent video running time ____ minutes ____ seconds.

Signature: _____________________________________________

The point of the above document would be to provide the details necessary to create a video montage with the exact length of a customer owned piece of music (presumably an original composition recorded by her soon-to-be-brother-in-law's garage band) without the editor even knowing what that music was (or having to listen to it).

[Steve House]

You're going to ask your client to provide minutes:seconds:frames timing for each and every sequence in the final edited video where music might be added later? And just how are they going to edit their music into the soundtrack once you deliver the DVD to them - how many of your clients do you suppose own FCP, Premiere, or other NLE/DAW software? If you deliver the final version of the program to them sans music I don't see how you could be held liable for any modifications they might make to the later, though I don't think I would document the fact that you have prepared the program expressly so that they can add specific music tracks to it. I doubt you would be held liable if your client takes your program and turns it into something infringing since you're not responsible for their actions after you turn over your materials to them but from a practical business standpoint I don't see it working. And should your client successfully edit their own music tracks into the video and then post it on YouTube, let's say, so it came under the notice of the music's owners, you might have a hard time proving in court that it wasn't you who put the music in or at least aided and abetted your client's infringment by setting up the video so they could easily do it.

The only real solution is to establish a personal standard refusing the unlicensed use of another artist's property (where licensing is required by copyright law) in your own work and to advocate that professional societies, such as WEVA, of which you might be a member incorporate into their statements of professional standards and practices an absolute and unequivocal ban on the use of unlicensed materials by their members. It's not going too far even to suggest that such societies establish a system of sanctions for members who violate their canon of professional ethics and make a public statement that they will aid in the prosecution of such members who are found to be flagrant repeat violators. I think it is incumbent on all creative professionals earning income from their work to actively advocate respect for the rights of one's fellow creative professionals. Just as you have the right to be paid for your work in making the video you shoot for your client, the owners of the music you use in that video also have the right to be paid for their work and it is up to us to do all that we can to make sure that happens. It boils down to a simple respect for the rights of our fellow professionals, our brother and sister creatives, instead of trying to find ways of avoiding them.

[Eric Olson]

I can see how the term "customer owned music" could be misinterpreted as ownership of a purchased CD containing music licensed for home listening rather than actual ownership of the music. The danger of being accused of aiding and abetting copyright infringement seems a serious issue. Just like a taxi driver can not knowingly drive a robber to the bank, a silent video montage can not be produced with the knowledge that a customer plans on using it for copyright infringement. The idea however was to support the creative efforts of others by not getting involved with or controlling the production, purchase and licensing arrangements for the music. I think you are right, though, that this could still be a problem.