I know you have to pay lots of $$$ to put "famous" music

[Bruce Edwards]

in a movie. Does that apply to documentaries too? What if I am shooting in a nightclub and of course the music is recognizable? Will I get in "trouble" or is it ok because it is a doc.?

[Rob Lohman]

I think you still aren't allowed to....

[Roger Rosales]

I think it depends on what you plan to do with your film. If you're going to sell it in really big quantities to people, then yes,you'll get in trouble.

But if it's just for a free screening or anything like that, I don't think there is a problem.

[Bruce Edwards]

Well, my goal of course is to eventually sell the movie, so I will have to edit out the music and put in some generic stuff. Thanks.

[Paul Tauger]

Does that apply to documentaries too?

Yes, it does. Copying and syncing music without permission will result in liability for copyright infringement.

What if I am shooting in a nightclub and of course the music is recognizable?

This is called "incidental reproduction." I've written about this before, so I'll just copy a prior post I made to Usenet. It was originally written in response to a question about a wedding video, but your situation is the same:

-------------------------------------------------------------------------------
"Is it infringement if my video contains music played
by the band at a wedding?"

Unfortunately, the answer isn't exactly definitive.

First, a disclaimer:

NONE OF YOU ARE MY CLIENTS. I AM NOT YOUR ATTORNEY. THIS IS NOT LEGAL ADVICE. I AM DISCUSSING AN ABSTRACT PRINCIPLE OF LAW THAT IS OF GENERAL INTEREST. NOTHING IN THIS POST IS A LEGAL OPINION. DON'T RELY ON ANYTHING
I'VE WRITTEN. CONSULT YOUR OWN ATTORNEY IF YOU HAVE A QUESTION ABOUT POTENTIAL LIABILITY.

Okay, with that said, (and please, read and heed!):

The particular legal doctrine at issue here is called "Incidental
Reproduction." Incidental reproduction occurs when, as the name implies, copyright-protected material is reproduced as an incident to another activity, for example, in a motion picture, an actor is shown reading a Time magazine or, as is of interest to everyone here, when a wedding videographer tapes the couple's "first dance" and, in doing so, records the music played
by the band or DJ.

When Congress codified the equitable doctrine of fair use, it gave some examples (which are not part of the statute, but are part of the legislative history, which is considered "persuasive" when construing the statute) when the fair use defense would apply. These examples included: "incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being recorded.' " 1975 Senate Report 61-62; 1976 House Report 65, U.S.Code Cong. & Admin.News 1976, p. 5678.

Unfortunately, there aren't a whole lot of decisions which deal with this subject, and they aren't consistent. I've found two cases, Italian Book Corp. v. American Broadcasting Co., 458
F.Supp. 65 (S.D.N.Y. 1978) and US v. ASCAP, 1993 WL 187863 (S.D.N.Y. 1993), that come close to being on point. Italian Book involved a plaintiff songwriter who sued a television crew that videotaped a parade at which plaintiff's song was played. The Italian Book court held the parade videotape to fall within the "incidental and fortuitous" fair use exception. The ASCAP case which, apparently, dealt with royalty allocation and collection by ASCAP, includes a reference to another unpublished decision in
the same matter in which a magistrate judge held that fair uses, which included "ambient music incidentally picked up during news and sports broadcast" should trigger either a full-program ASCAP fee, and should not be included in ASCAP's incidental-fee category.

However, at least one court has rejected Italian Book, denying fair use when an entire song was broadcast, not as a news event, but as live coverage of a festival. See Schumann v. Albuquerque Corp., 664 F.Supp. 473, 477 (D.N.M. 1987).

Nimmer, a legal treatise on copyright which can be cited as persuasive authority in American courts, characterizes application of fair use doctrine in this context as "spotty." Also, bear in mind that Italian Book is a NY district court case, and isn't binding anywhere. ASCAP is also a New York district court case, but it is an unpublished decision, which renders it even less persuasive. Schumann is a New Mexico district court case and it, too, is not controlling authority anywhere.

So, where does that leave us?

Well, unfortunately, with very little guidance from the courts. Wedding videos are funny things -- on the one hand, they can be considered analogous to news, in that they report an actual event. On the other hand, the public interest in allowing greater lattitude to news organizations isn't present (or, at least, not to the same degree) for wedding videos. It's simply impossible to predict which way any given court might go -- the focus might be on the commercial, non-news aspect of a wedding video, resulting in infringement liability, or it might find the fact of limited distribution and impact on the commercial market for the underlying work does, in fact, constitute fair use.

Remember that fair use is an _equitable_ doctrine which is a _defense_ to infringement. The "equitable" part means that it is a fact-specific doctrine; different courts may come to different conclusions based on seemingly minor factual variations. The "defense" part means, you won't know whether you're liable or not until you're actually sued and a court rules.

If I were advising a client, I'd probably recommend the following:

1. Get an express, i.e. written, non-infringement opinion from an attorney. A proper non-infringement opinion from competent counsel is, for all intents and purposes, prima facie evidence that infringement was _non-intentional_. This is important, both in terms of limiting liability if you are sued, and for number 2, below.

2. Get a policy of general liability business insurance which includes an "advertising injury" provision that is sufficiently broad as to provide coverage for an infringement action predicated upon inadvertent inclusion of copyright-protected material in the video. Note, though, that whether or not a given policy will protect someone in such instance is, in itself, a difficult question to answer, and the answer should be provided by an attorney (or, better still, by the insurance agent, _in writing_). Number
1, above, is important because these insurance policies only protect against _negligent_ infringements; intentional infringement are outside the scope of coverage.

3. It would seem from the case law that, the less use made of the protected original, the more likely it is to be found fair use incidental reproduction. Therefore, it's probably a good idea to avoid using entire songs. I can think of other ramifications as well. For example, if you do an L- or J-cut, the "incidental music" would be functioning more as a soundtrack than as an incidently and fortuitously recorded background to a specific event, so I'd limit use of "incidental" music to the actual event it accompanies.

I can't (and won't) tell anyone in this group what they should do. It is important to realize that this particular factual pattern, i.e. incidental reproduction of music in a wedding video, is far from settled at law; I'm not sure anyone can give a dispositive answer at this point. My personal inclination is that incidental music in a wedding video probably should be considered a "fair use." However, I don't sit on any appellate courts, so my personal inclination doesn't count for much. That is, however, the
defense that I would raise if one of my clients were sued in this context.

Finally, remember that what I've written here is the product of about 10 minutes of very hasty research. I would NEVER counsel a client based on such a skimpy review of the law. This is a complex question that requires more than just a passing review before an informed opinion can be provided.

-----------------------------------------------------------------------------------
And finally:

If you're going to sell it in really big quantities to people, then yes,you'll get in trouble. But if it's just for a free screening or anything like that, I don't think there is a problem.

Sorry, but completely and totally wrong. It is not a defense to infringement to say, "I didn't charge money."

Anyone contemplating any professional and/or commercial use of their video would do well to consult a competent IP attorney. The potential for liability is simply too great.

[Don Bloom]

Hi Paul,
This subject seems to be more popular on all the forums than "which camera should I buy?" and as always you're right on it to help clarify (at least as much as the law will let you) and for that, Thank You.

Now on to the next question.

I would guess you don't have an answer to my question but since you are closer to the subject than anyone else here, what if any feeling do you have about the copyright law being modifed so folks in the wedding and event business might be able to use the music legally. Say buy a useage rights license thats good for a year or something like that. That way some royalty is being paid for the work and my clients get to have the music they want legally.
Since I'm not selling any copies to anyone or charging admission to the public nor making money based on the music but solely on the video with the music as an incidential, do you think that perhaps in the next few years they MIGHT change the law?
Thanks as always for your sage input and advice,
Don

[Paul Tauger]

Hi, Don,

The problem with copyright law is that it is enacted by Congress, and Congress only responds to political pressure and lobbyists. The last significant change to copyright law extended the term of copyright and was the result of significant lobbying by Disney, which stood to lose a fortune when the Mickey Mouse character would have passed into the public domain. Though wedding and event videographers have trade organizations, those organizations have not been doing much in the way of lobbying. Consequently, I don't see much prospect for the copyright laws being revised to reflect a more reasonable approach for independent videographers.

Of course, another approach would be to test the extent to which the fair use doctrine would permit the kind of uses that we discuss here. Unfortunately, that takes someone willing to be the defendant in a very expensive lawsuit, as well as a plaintiff willing to prosecute. For what it's worth, I'd be interested in defending such a suit, and might even recommend to my firm that we do it on a pro bono basis (no guarantees that the firm would agree, though . . . no one here should flaunt infringement thinking I'll be able to step in and defend them).

Another approach would be to petition the licensing entities, e.g. BMI, ASCAP and, to a lesser extent, Harry Fox. However, I've spoken with BMI's counsel about this specific issue, albeit on an informal basis, and there was little interest in making available inexpensive licenses for videographers.

Sorry the news is so bleak. I think that, ultimately, incidental reproduction and fair use, generally, will be construed broadly enough to cover what the folks here do. However, until then, I expect there will be a considerable market for buy-out libraries.

[Don Bloom]

Hi Paul,
Yeah, I kinda figured something along those lines. Why make it easy when someone can sue. Oh well, Back to the drawing board and buy out music.
Thanks again,
Don

[John Locke]

The music industry is missing out by not setting up a "quickie rights" site for independent filmmakers.

Set it up so that a production company is pre-approved and receives a "status" which, in turn, determines their scale of payment for usage...then provide a menu of songs as well as intended usage, duration, etc., give the credit card number and voila!

They thought the download site for iTunes wouldn't be worth their while...look how wrong that was. I bet they'd make a fair bit of money off something like this, too.