legal quesiton regarding music in your videos

[Brad Simmons]

Quick question,

What is the detailed policy for using someones music on your video on the internet if the video is not intended to make a profit? How do you go about aquiring the rights to use this music? What about a video for profit etc..?

Any help or links to this info would be greatly appreciated.
Thanks

[Don Donatello]

here's a link on 10 myths about copyright

http://www.templetons.com/brad/copymyths.html

you need to get permission .... unless on the web site they say it is free to use without asking.

just because one doesn't plan to "make a profit" doesn't mean we can use/borrow/steal somebody's music.

the difference between you don't plan to make $ or plan to make $$ would be how much you pay for the rights to use it.

most unknown bands will usually let you use the music for no $$ if you have in large print that they retain owners of music plus you give them creadit & copy.

it takes no $ to ASKED for permission. i once asked a well known artist for permission to use their music for my sample reel and the answer was OK for limited use. so basically it came down to i could pass my reel around to production & ad agency. i could show it if it was for educational purposes ( if i was speaking/doing workshop at college/school). i could NOT show it if $$ was being charged for a screening.

2 years ago i went back to see about putting it up on the web and i was only given permission for a "private use" on web ..meaning i could direct persons to a web site that was password protected for each individual that was directed to the site. so i cannot list the site here for all to see as that would be open to general public. now if i was interested in your project and you were interested in me as a DP i could give you the link and a passwork for you to view the reel. the same private/limited viewing applies to commercials that i have shot.

[K. Forman]

If it is someone big, you need to contact ASCAP, or one of the other licensing houses. Then, they will ask you what you will be doing with the music, what the intended media is, if you will make a profit, etc. Then, they will tell you how much to give them.

If you don't necesarily need a big name, you can try local musicians. Unknown talent can often be had cheap, in exchange for credits. Another alternative, would be a music clearing house, like the Music Bakery. Then you can buy canned music with rights to use it.

If you are just doing a little project for friends and family, you might get by with "stealing" the music, as long as it doesn't get shown to major audiences. Overall, I recommend choice 2, and get local unknowns.

[Brad Simmons]

thanks, this is all great information as always guys.

[Brad Simmons]

Hi Rob

http://www.templetons.com/brad/copymyths.html

Unfortunatley that link is dead. Are you sure it's the right URL?

[Brad Simmons]

Actually nevermind. I found a cached version. Looks like they took it down.

http://216.239.51.100/search?q=cache...hl=en&ie=UTF-8

[Chris Hurd]

No, here it is:

http://www.templetons.com/brad/copymyths.html

Excellent link -- thanks,

[Will Fastie]

Mr. Templeton's list of myths is good, but there is an omission I think is important. I'd write him, but he has warnings about emailing him on copyright issues, so I'll just post here.

Caveat: I'm not a lawyer. Of course, neither is Templeton. My best advice is to consult an intellectual property attorney; I'm doing it every step of the way with my project. (Example: I'm using some footage my brother took of his son and I plan to get a release.)

The omission is the old Sony ruling that said making a copy of programming using a VCR was fair use if intended for private, family viewing. Show it to the public or sell it and you're in a heap of trouble, but watch the copy once a week with your family for 20 years and you're fine.

If I put "Here Comes the Sun" in my commercial project as background music, I have to pay a royalty (I'm not likely to get permission to use that one for free). If I put it in my home movie as background for some '60s footage, it is my understanding that this falls under the scope of the Sony decision provided I purchased a legal copy of "Abbey Road" to begin with.

The reality is that nobody is going to come after you or me for a home movie. But DMCA makes it clear that "they" will come after us if they smell so much as a centime avoiding their coffers.

[Paul Tauger]

The omission is the old Sony ruling that said making a copy of programming using a VCR was fair use if intended for private, family viewing. Show it to the public or sell it and you're in a heap of trouble, but watch the copy once a week with your family for 20 years and you're fine.

Sorry, but you've got Sony v. Universal completely wrong. Sony was a contributory infringement case -- Sony was sued for contributory infringement based on its sales of Betamax vcrs. The Court held that it came within the Fair Use Doctrine to "time shift," i.e. to use a Betamax to videotape over-the-air, copyright-protected broadcasts for later viewing. As such, the Betamax had a substantial non-infringing use, and Sony was not, therefore, liable for contributory infringement for their sales.

The court did NOT hold that there is an, "it's only for my family" exception to copyright infringement," nor is there any such exception. The court did NOT hold that there is an, "it's okay if it's non-commercial" copying exception to copyright infringement, nor is there any such exception.

Also remember that the U.S. Supreme Court, in Sony, based its decision, in part, on its belief that no one would build a home library of copyright-protected material, nor did the Court anticipate a video rental and sales market that included previously-broadcast material. Of course, these beliefs were completely wrong. I'm not sure how the Court would rule on this issue today (and we have a very different Court now then the one which decided the Betamax case).

ANY unauthorized copying (with a very, very few limited exceptions which expressly appear in the Copyright Act) constitutes copyright infringement and may result in liability, including using copyright-protected music in home videos. Fair Use is an equitable doctrine that is a _defense_ to infringement and is applied on a case-by-case, fact specific basis, meaning that you won't know whether what you've done is subject to Fair Use doctrine until you are sued and a _judge_ decides whether or not Fair Use should apply. There are no hard rules for what does or does not constitute Fair Use (though there are non-dispositive guidelines published in the statute), and only an experienced intellectual property attorney is going to be able to provide an accurate prediction as to whether or not a specific use might constitute Fair Use.

It is, of course, true that you're not going to get sued for infringements that are kept at home, but that's true of any illegal act. There's no way for a copyright owner to know what you do in the privacy of your own living room. Do not assume, however, that just because you're a "little guy," and not making money from your infringment, that you're immune to suit. Intellectual property owners will frequently sue the "little guy" to send a message to other infringers that the IP owner aggressively polices its property.

With that said, I freely use copyright-protected music in my home videos in the belief that it is highly unlikely that I would be caught (I frequently drive my car at speeds exceeding the posted limit for the same reason). I also think it is at least arguable that the AHRA covers such use (its a nice theory, but completely untested). However, there's a difference between getting away with it, and claiming, as you have, that it's legal to do it.

Paul Tauger,
Intellectual property attorney.

[Will Fastie]

I appreciate this detail from an attorney, but now I'm confused.

Isn't anything I copy from broadcast with my VCR going to fall under time-shift fair use? The idea of any recording is to view it later.

I understand that fair use is a defense. So as a defense, what is your opinion about whether it will work if I use "Here Comes the Sun" as background for a home movie and I'm the unlucky guy who gets sued?

Regarding speeding, when I was in the Army I was required to attend a U.S. Department of Transportation class on defensive driving. The correct answer to the question "What is the safest speed at which to drive" was "At the pace of the traffic." Unfortunately, my excellent training does not appear to be binding on state troopers.

[K. Forman]

It's the old story- Nothing is illegal... unless you get caught doing it. If you feel safe showing your Auntie copies of your movie, complete with 'Here Comes the Sun' as BG music, go for it. If you feel safe showing it to your friends, again, go for it.

If one of your friends is still holding a deep grudge because of something you did to him, he may blow the whistle on you.

If you want to start doing videos as a business, and want to use the same song, you are blatently violating all copyright laws. Maybe you'll get away with it, maybe not. Don't whine when you have an attorney hauling you into court and the HUGE fines and penalties thrown at you.

You remember Baretta? "Don't do the crime, if you can't do the time".

By the way, I am not an attorney, nor do I play one on TV. I have however, I have seen them on TV.

[Paul Tauger]

Isn't anything I copy from broadcast with my VCR going to fall under time-shift fair use? The idea of any recording is to view it later.

Pretty much -- that was the holding in Sony v. Universal.

I understand that fair use is a defense. So as a defense, what is your opinion about whether it will work if I use "Here Comes the Sun" as background for a home movie and I'm the unlucky guy who gets sued?

But this has nothing to do with Sony v. Universal -- there's not time-shifting involved.

As for using "Here Comes the Sun," a lot of my answer would depend on how you define "home movie," and where, and to whom, your home movie gets shown. Fair Use is a fact-specific doctrine which, as I indicated, is a defense to infringment, meaning it will only be addressed in the context of litigation against you. If you're only showing it in your living room to your wife and kids, it's hard to imagine how that would result in a lawsuit. If you're doing more, e.g. entering it in home movie competitions, showing it at your local Elks Club, bringing it to "Travel Night" at the local senior citizens center, etc., it's more likely you'd be found out, but those circumstances would influence whether Fair Use does or does not apply.

Also, as I said, I think I can make a reasonable argument that the AHRA applies (Audio Home Recording Act). This amendment to the Copyright Act precludes liability for making "personal use" copies of music in either analog or digital form. The Act was intended to "de-illegalize" the kind of casual music swapping that many people engage in. It did not, however, anticipate readily-accessible NLE, which makes it an easy matter to copy music to a video soundtrack. Accordingly, it's an open question whether it applies to adding music to videos, and will remain so until it is adjudicated.

Upon re-reading what I've written, I need to clarify: I am _not_ providing a legal opinion that the AHRA authorizes copying music to video soundtracks. On its face it does not. However, if I ever got sued, I'd raise it as a defense. Would it work? That's anyone's guess.

If you want to start doing videos as a business, and want to use the same song, you are blatently violating all copyright laws. Maybe you'll get away with it, maybe not. Don't whine when you have an attorney hauling you into court and the HUGE fines and penalties thrown at you.

You remember Baretta? "Don't do the crime, if you can't do the time".

That's real good advice. Copyright infringment is strict liability, meaning it is not defense to say, "I didn't know it was illegal to do this."

By the way, I am not an attorney, nor do I play one on TV. I have however, I have seen them on TV.

I am an attorney, and I've been on TV, but I've never played one on TV. ;)

[Will Fastie]

There's no question in my mind about my commercial project. I'll pay for what I use, period. That's not worth the risk -- it could cost my business. I don't want to give the impression I'm trying to steal; nothing could be further from the truth.

It's only the personal stuff I'm trying to grasp.

[Don Donatello]

if you use "Here comes the Sun" for your "home" video - nobody is going to do anything as long as you keep it at home. YES, you can take it to a friends house to show em.. it's when you put it out so the general public can view or you attempt to distribute it you will draw attention.

the so called fair use is for a X number of seconds/sentences NOT the whole song/video/written word etc ...

[Paul Tauger]

the so called fair use is for a X number of seconds/sentences NOT the whole song/video/written word etc ...

Sorry, but that's wrong. One of the non-dispositive fair use factors is the amount that has been taken, but I can think of contexts in which wholesale and verbatim copying would still consitute fair use.