'Can I copy your stuff?'

[Steve House]

Originally Posted by Daniel Ross

...As a matter of fact, this actually ties in very closely with the original question. If you charge for your SERVICES ONLY, then you don't really need to worry about copyright.
Your job is a simple one-- sit at a computer and be paid [arbitrary] $500. Then give them a CD when you are done, as their employee (or something like that), not as an independent production studio.

...

AFAIK you are incorrect. You are not their employee: they're not withholding income and employment taxes from your cheque; they're not directing and supervising your work; they're not sitting beside you telling you which button to push and when to push it. You are not selling them camera operator or editing services in the same manner a TV station's cameraman or segment producer is selling his or her labour to the station. You are actually an independent vendor who is selling them a customized retail product that you have created, that is, the completed and edited video. The fact that they requested that you create it with particular content doesn't make them legally responsible for that content - you are still the one doing the creating and have the final say as to what you will and won't include and the fact that they'll be an unhappy customer if you don't include what they want doesn't shift that responsibility away from you. Think about the still photographer - he doesn't get paid an hourly wage just for shooting and then turn over the unprocessed film to the couple at the end of the day. He sells them a package of completed wedding photos. As the creator of those photos he owns the copyright on them. If if he was their employee, they would own it. The wedding videographer is in the same boat - he's selling the couple a "made-to-order" retail product. He owns the copyright as the creator of the work and as its creator he and he alone is responsible for the content, including insuring that all of the content is legal. The couple can request anything they want, as any customer can do of any merchant, but the courts would likely say that it's the producer's duty to say "no" if the request is illegal and hold you responsible if you don't.

Copyright is violated by the person who makes the copy. If someone comes to you and gives you a CD of copyrighted music and a blank disc and says "I'll give you $5 to copy this for me" and you agree to do it, YOU, not them, are the one that has violated the law. Kinko's ran into trouble from the "charging for sevices" notion with regard to copying printed materials, claiming that they were only providing a service and it was the customer's responsibility if the copying violated copyright. They lost.

[Daniel Ross]

Well, I WAS talking about a situation in which you would be their employee. Perhaps that is the incorrect word, but the idea is that you are working for them on their project, not on your own, on your own project. Your job is purely technical (of course creative, but that's not really relevant in the eyes of the law).

Being the one who makes the copy is an interesting argument. I can see that being the case.

It doesn't sound like you have any official/professional legal knowledge (not to say you are wrong at all-- very interesting), so I'd love to hear a confirmation of this from someone who works in the field. I wonder if anyone on the board fits this.

Anyway, it's an interesting thought.

Another legal argument is that being the professional, you should be aware of the laws, so perhaps hiding behind that would not be a factor.

One thing to consider, though, is that it's very unlikely anyone would be sued for copying a CD and giving it to a family member. In the same sense, if that was all you were doing from them, it might not be a big deal.
If you were to own the copyright on the film, then actually sell it to them, even including their music, it would be actually selling copyrighted material and benefiting directly, rather than in the process of working with such material coincidentally (if you could argue that).

[Steve House]

Originally Posted by Daniel Ross

Well, I WAS talking about a situation in which you would be their employee. Perhaps that is the incorrect word, but the idea is that you are working for them on their project, not on your own, on your own project. Your job is purely technical (of course creative, but that's not really relevant in the eyes of the law).

..).

You are correct - as I said in my first post I am not a lawyer or legal professional. However I *have* tried to educate myself as much as possible on the topic since like any other legal matter affecting one's profession, it's something that you simply must know.

You seem to think that because the completed video is assembled abstract content rather than a manufactured physical product and your role in the matter is providing an intellectual creative service, that it's not really a "thing" that is being sold. But the law disagrees - intangible intellectual content is just as much an real item sold in the marketplace as is a toaster. Even though you're not building something physical or buying something from a wholesaler and reselling it at retail, you are still a vendor selling a product.

The fact that they are paying you to work on a project on their behalf rather than you working on the project purely at your own initiative doesn't change things. True, if you are an employee hired to make a product, the burden is on the employer to insure his product is legal - a worker on the assembly line is not personally liable if his employer markets a defective product, for example. But the fact that someone requests you do something and pays you money to do it does not automatically make you their employee. If you go into a tailor's shop and ask him to make you a made-to-order custom tailored suit with a certain style and colour of fabric, does that make him your employee? Is the plumber you call to your home to fix your leaky pipes your employee? And more to the point, if the plumber you've hired to fix your pipes does something illegal - lets say, he does work that doesn't comply with the building codes - who is responsible, you or him? He is - even if you have asked him to save you money by cutting corners and do non-complying work. (Remarkably similar to the client who says they can't afford you if you insist on only using licensed material, hmm?) If his assistant does the non-complying work, who is responsible - you, the plumber, or the assistant? Again, it's the plumber. He's the professional - he is expected to know and comply with the law regardless of the client's wishes and he's responsible for HIS employee's actions.

If you, the videographer, have an employee who does your editing and he places unlicensed material in the video at your direction he doesn't have any legal liability. But if you're the videographer and you acceed to your client's wishes and use unlicenses material, it's going to be you on the hook. The argument is that you only provided a service won't protect you, any more than it would protect the plumber who you requested to do out-of-code work.

[Daniel Ross]

you are still a vendor selling a product.

Not if you are selling your time, not the product. It never is yours nor do you own the copyright. They own the footage, the music (or not), whatever.


Hmm. The plumber simile makes sense, but at the same time it's a professional job they are probably licensed to do. Video isn't quite the same.

You keep saying that the assistant wouldn't be responsible. Why is the videographer not the assistant?

If the scenario were to be that you had the bride and groom standing behind your shoulder telling you what to click, would you be responsible then?


Anyway, I just think there may be some ways around this, or, perhaps, LESS legal responsibility than if you were to actually sell them the discs.


But I think that being paid to duplicate someone's CD FOR THEM is not really all that illegal. You don't own the disc nor do you own the songs, anyway. You own the right to listen to those tracks. So, you can listen however you want. Putting it in the video would be no more illegal than putting it on an iPod.
So... if you just worked for them on their computer, it would be fine. But of course that isn't practical. Just not sure where the line would be drawn.



On another note-- this is sorta a documentary. Are there any laws that would allow use of copyrighted material in order to document events? You could document the history of the couple and how music has affected them. Sure, it's abstract, but a lot of legal arguments are weird.



//thoughts...

[Steve House]

Originally Posted by Daniel Ross

Not if you are selling your time, not the product. It never is yours nor do you own the copyright. ...

Nope, you might want to believe it but you are an independent contractor producing a custom product for retail sale. And as the creator of a copyrightable work, you do own the copyright to the video you created for the B&G until/unless you assign it to them.

You keep saying that the assistant wouldn't be responsible. Why is the videographer not the assistant?

See above.

If the scenario were to be that you had the bride and groom standing behind your shoulder telling you what to click, would you be responsible then?

Yep, you have to be in an employer/employee relationship. An independent contractor is not an employee

Anyway, I just think there may be some ways around this, or, perhaps, LESS legal responsibility than if you were to actually sell them the discs.

Lots o' luck and keep your fingers crossed you don't have to defend your theory in court. Lotta shooters tried, lotta shooters died.

But I think that being paid to duplicate someone's CD FOR THEM is not really all that illegal.

Legality is like pregnancy - there're no degrees of it. Ask Kinkos. The law does allows YOU to make PERSONAL copies for YOUR OWN use but that permission does not extend to third partys who make the copy for you, ESPECIALLY if they charge a fee to do so and offer the same service to the general public.

Putting it in the video would be no more illegal than putting it on an iPod.

Nope, don't work that way.

On another note-- this is sorta a documentary. Are there any laws that would allow use of copyrighted material in order to document events?

Nope, there's nothing special about non-fiction or documentary productions unless it's explicitly for academic criticism or journalism.

//thoughts...

The topic is reviewed extensively in the article by Doug Spotted Eagle posted here that I referenced earlier and also discussed extensively in the Taking Care of Business forum, where several of the intellectual property attorneys frequenting this board have thoroughly debunked each theory and work-around you have proposed. The law is really quite simple - you must have a proper license to include any copyright work in the videos you make for your clients ... full stop. Wedding and event videos don't even come CLOSE to the exceptions considered "fair use" nor are they covered by the very explicitly defined "works for hire" provisions under the law. Without the license any use is illegal and you have exposed yourself to suit that will require mucho dinero to defend against should the copyright owner discover that you've used their property and wish to pursue you for it. Don't kid yourself, lots of videographers have had the rude surprise of finding a registered letter containing a cease-and-desist demand in their mailbox.

[Allister Gourlay]

Originally Posted by Colby Knight

Then she asks if she could COPY them.

Just let her get on with it... who needs hassle!

[TingSern Wong]

If I use royalty free audio (licensed to me) - for example, SmartSound series - (www.smartsound.com) - and I created the video, and I pass on the final copy to somebody else, is that somebody else violating any laws when he copies the DVD - which is a result of my work?

[Daniel Ross]

Technically violating your copyright unless you give them rights to do so. However, as has been discussed, it's a strange situation. Not like they're trying to make money, etc.

[Steve House]

Originally Posted by Daniel Ross

Technically violating your copyright unless you give them rights to do so. However, as has been discussed, it's a strange situation. Not like they're trying to make money, etc.

If they have permission to make the copy, they're not violating your copyright. There's nothing in that law that says money has to change hands for it to be a valid license, only that anyone who wishes to make copies has to have a license to do so from the copyright owner.

[Adam Hoggatt]

Originally Posted by Steve House

If they have permission to make the copy, they're not violating your copyright. There's nothing in that law that says money has to change hands for it to be a valid license, only that anyone who wishes to make copies has to have a license to do so from the copyright owner.

Not necessarily. If I buy a CD or DVD I have a legal right to make copies for my own personal use. I can back up my DVD collection on my PC, for instance. Are you saying that if I have my computer savvy friend do the duplication then it's illegal all of a sudden?

[Dave Blackhurst]

AHHH, and here's the rub... if your friend makes a business of it, he in theory is violating copyright, BUT is he really doing anything other than facilitating your right to use your media as you see fit? Tough call, he's merely charging for his time to do something you are not technically inclined to do... HMMMM


On the one side content providers want and deserve to be compensated and protect their work against unautorized or unacceptable use (how would you like a wedding video you produced to be used in a porn or horror film, for instance... I know it's an odd example, but we're talkig law here, and part of protecting one's "work" is the prevention of tasteless and unacceptable uses).

On the flip side, the Supreme Court has upheld that the end user has a right to duplicate for their own use, and some licenses acknowledge you may make a backup copy... if you make a copy for a "friend" you've crossed the line... BUT, it's been acknowledged that the end user has SOME rights, albeit limited.

The idea that you can shift content from one media to another is established to some degree already, but when you switch from audio to video (and those lines are blurry at best) you've created a new beast, and we'll probably be seeing cases on the topic eventually... stay tuned. I'm still not sure exactly how one becomes liable for synchronizing audio and video that could be played from two separate devices (see an earlier post of mine) so that they may be watched and enjoyed together for the end user... but if you "go public" with that "product", I think you're over the line...

The main problem is the total lack of a simple licensing system - the pay per download sites clearly have solved it (or at least come up with a workable system) for the "end user", now someone needs to solve it for the small videographer - but I'm guessing it's too small a market to pay attention to?

And the big risk is that the "media" controllers have piles of attorneys looking to sue grandmothers and college students just for the "deterrrent value", while the REAL pirates churning out bootlegs CDs and DVDs often go unchecked, because they are harder to find and shut down... and crime pays well enough they can stay on the run for a long time. SIGH...

[Adam Hoggatt]

I think the UK has a good system worked out (at least from what I know of it). I would love to see a system like that in the US. I think just about every wedding videographer would pay a monthly fee just to be on the safe side. I would.

[Steve House]

Originally Posted by Adam Hoggatt

Not necessarily. If I buy a CD or DVD I have a legal right to make copies for my own personal use. I can back up my DVD collection on my PC, for instance. Are you saying that if I have my computer savvy friend do the duplication then it's illegal all of a sudden?

AFAIK, strictly speaking it is. Whether you'd get caught is another matter.

If he offers it as a duplication service it absolutely is.

[Vince Baker]

Hi Adam,

From what you say and from what I read in this thread I too am glad I am filming in the UK!

Simple method of license per disc for using music from a cd and a seperate one for live performance makes it cheap and simple to achieve.

I think that the fact it is that simple and reasonably priced will encourage UK videographers to abide by the rules.

[Dave Blackhurst]

Adam -

IANAL, BIPOOTI (I'm not a lawyer, but I "play one on the internet" <wink>).

I believe that the Kinko's analogy would apply at least in theory - while the purchaser of a work can copy it on their own, someone "facilitating" copyright infringement on a large enough scale is a "target" for lawyers, IIRC Kinkos got sued and lost on this somewhat spurious legal theory.

BUT they still provide copy machines, right? And they simply post a warning about copyright infringement... and I'm guesing this is deemed legally sufficient - but if you took 20 copies of a book up to the counter to pay for it, they "might" (and should) crack the whip on you.

I think if the person requesting the duplication can show they own the work they want copied or media shifted can show legal ownership or a clear copyright (and many stores now ask for copyright releases for stills), the "facilitator" is in the clear.

The primary case quoted IIRC is the betamax case, where "fair use" was first put forward as a legal theory - it established that an end user has the right to make a copy... but that case is ancient history in a digital world, and I understand it is under constant attack...

Keep in mind that if anyone can show case law, that case might be overturned or directly contradicted if you're unlucky enough to be the victim of a suit... IP law is VERY much in flux, and attorneys are quite creative in thinking up new and novel ways to approach common sense questions and make them unimaginably complex...

I'm not bad at deciphering legal issues, and frankly some of these areas are just too dicey to tread in for my tastes. I feel "incidental" music probably is relatively safe, but I'll avoid using copyrighted music (as a "soundtrack) out of caution until there's a better answer. I suspect if you bought a copy of the song in question through legal online channels, you'd have a decent affirmative defense should you be sued (no way to purchase, so you tried to ensure the copyright holder was compensated in some way). But having a good affirmative defense and having the $$$ to make it fly in litigation are two very different things.

I guess you should always ask yourself the question is it RIGHT to COPY this work? If it was yours, would you want it dup'ed? Would you want it used in the way it's going to be used (keep in mind there are exceptions for parody). MOST IMPORTANTLY, would you feel ripped off if someone used YOUR stuff and didn't pay for it's use?? If you're not comfortable in the slightest, rethink what you're about to do.