Music License trouble... (stupid of me...)

[Chris Davis]

Originally Posted by Doug Bennett

For those who don't want to make the call themselves but still require incontrovertible advice - why not check out what NPR's Intellectual Property attorneys and NY Times ethicist think of it: "Could a wedding dance turn into a copyright infringement if it's videotaped?" -

Is Videotaping a Wedding Dance Illegal? : NPR

Close, but no cigar. What you hear in that piece is one person talking about capturing background music while recording an event. He was not referring to syncing a montage to music.

[Doug Bennett]

Chris

Go back read the final paragraph of my post.

Just send a box of Romeo Y Julieta and you can skip the grovelling apology

:)

[Warren Kawamoto]

JJ,
My hope for you is that the musician is just trying to scare the living crap out of you to teach you and I (all of us) a lesson about not using copyrighted music. Sure he's mad, but my hope is that he won't actually sue his fan.

Cross your fingers.....

[Chris Davis]

Dang - all I have is Hoya De Monterrey Excalibur, and you're not getting those. I'll go buy a pack of Swisher Sweets for you! :)

[Kevin Duffey]

Paul,

I stand corrected. I feel for JJ in this case and have read various cases, like the 8 year old (or so) girl that got sued a few years back. I don't know that I agree with all your points, but if you're a lawyer that deals with this you no doubt know what you're talking about.

Your reply and post was really informative and brought me up to date regarding this issue. And yes, you are right..this has nothing to do with the majority of those of us that think lawyers ruined this country.. that was indeed an incorrect statement.. the majority seems to fall on the ridiculous lawsuits over injuries and such.. so I apologize if I offended.

So it sounds like most of you that understand this do ok even tho you have to severely limit the selection of music you can use in a video. I am really curious tho.. when you recording sections of a wedding that have DJ music in it..I am guessing you have to edit out the sound completely (unless of course you had permission to play the music..which I would assume is almost never going to happen).

How do ya'll present your music list that you can use in a video then? For that matter, when you're making the videos.. do you choose the music for it, or do you let (or offer) the bride/groom the option then present a list and explain the copyright issues (not nearly as much as Paul did of course) and tell them you'll look up their choices to see if they can be used via one of the royalty free or yearly license sites?

[Shaun Roemich]

Originally Posted by Doug Bennett

Shaun - can you do one thing for the board.

On Monday phone the RIAA in New York. Tell them you want to license music for a wedding video.

Why would I do that? Number one I live in Canada and any response the RIAA gave me would not represent my situation and number two, I have no interest in producing wedding videos. Instead, I will defer to what knowledgeable professionals like Paul and MY lawyer have said.

[Bruce Patterson]

Originally Posted by Noel Lising

I wish or hope Canada comes up with a similar license fee as Australia, I know Djs through AVLA pay a one year license fee. Would love to pay a one year fee. WEVA should start a campaign of some sort, I am sure thousands of videogs from the US and Canada would love to pay that fee.

Canada DOES have an association that regulates and allows you to play commercial music in wedding films! Contact the CMRRA @ www.cmrra.ca for more information. There's a PDF which clearly outlines the fees and then you're good to go! Not sure what's going on in the US though.

[Paul Tauger]

Originally Posted by Doug Bennett

Shaun - can you do one thing for the board.

On Monday phone the RIAA in New York. Tell them you want to license music for a wedding video. I can't remember the reply verbatim - but two points were made when I made a similar call a couple years back.

1. You don't need a license
2. Many top attorneys and judges, including Supreme Court Justices have commissioned wedding videos.

If you could reserve judgment until you've made the call that would be great. Once you get an answer do let us know if it's changed from the ones that have given me and many others over the years.

For those who don't want to make the call themselves but still require incontrovertible advice - why not check out what NPR's Intellectual Property attorneys and NY Times ethicist think of it: "Could a wedding dance turn into a copyright infringement if it's videotaped?" -

Is Videotaping a Wedding Dance Illegal? : NPR

Including copyright music in a wedding video is neither illegal or immoral. If you have a problem with that view - why not phone NPR? I'm sure they would be really interested in your viewpoint, although in the interview they are pretty scathing about people who hand out bogus legal info on the net.

On the other hand setting a montage/highlight reel to a piece original music without crediting the author is illegal. Hoping to secure some commercial advantage from that is immoral.

And when you call NPR or RIAA, be sure to ask them if they'll indemnify you if you are sued. And be sure and get it writing.

And what was that you said about handing out bogus legal info on the net? Does that include non-lawyers?

[Paul Tauger]

Originally Posted by Kevin Duffey

Paul,

I stand corrected. I feel for JJ in this case and have read various cases, like the 8 year old (or so) girl that got sued a few years back. I don't know that I agree with all your points, but if you're a lawyer that deals with this you no doubt know what you're talking about.

Your reply and post was really informative and brought me up to date regarding this issue. And yes, you are right..this has nothing to do with the majority of those of us that think lawyers ruined this country.. that was indeed an incorrect statement.. the majority seems to fall on the ridiculous lawsuits over injuries and such.. so I apologize if I offended.

So it sounds like most of you that understand this do ok even tho you have to severely limit the selection of music you can use in a video. I am really curious tho.. when you recording sections of a wedding that have DJ music in it..I am guessing you have to edit out the sound completely (unless of course you had permission to play the music..which I would assume is almost never going to happen).

How do ya'll present your music list that you can use in a video then? For that matter, when you're making the videos.. do you choose the music for it, or do you let (or offer) the bride/groom the option then present a list and explain the copyright issues (not nearly as much as Paul did of course) and tell them you'll look up their choices to see if they can be used via one of the royalty free or yearly license sites?

For what it's worth, my personal opinion, NOT my legal advice, is that using the bride's legally-acquired CD as a soundtrack for a wedding video SHOULD be fair use. I say "should" because I think standard fair use analysis, i.e. it's transformative, doesn't hurt the market for the original, etc., could apply. However, here is why I think it won't be held fair use, at least today:

Fair use is an equitable doctrine, meaning that it is committed to the discretion of the judge. Copyright cases can only be tried in federal court and in federal court all the judges are appointed by the president. Currently, something on the order of 80% of the federal bench was appointed by Republican presidents, and not just Republican presidents, but, specifically, Reagan, Bush senior and Bush junior. As a result, we have a very conservative, pro-business federal judiciary. Federal appellate justices are also appointed and drawn from the ranks of the federal district courts. As I'm sure everyone is aware, the Supreme Court is staffed by Presidential appointees. The present Supreme Court, which many regard as "liberal," is, in reality, the most conservative court since Herbert Hoover. Remember, this is the Supreme Court that held that government exercise of eminent domain so that the property so condemned could be turned over to a private developer did NOT violate the 5th Amendment and that the "limited time" of the monopoly grant for copyright in the Constitution could be 100 years+. This is not a slam against Republicans or conservatives -- it is just a fact of federal litigation that all of us who practice in federal court are aware of.

For this reason, I find it highly unlikely that fair use would be applied in such a way as to disadvantage copyright owners who, generally, are large corporate entities and NOT authors, musicians or, for that matter, film makers and, in fact, that has been the apparent trend of the relatively few recent fair use cases. One of the underlying principles of fair use doctrine is that ameliorates the tension between the First Amendment and the Article I, Section 8 grant of an exclusive monopoly in copyright. Unfortunately, wedding videography has virtually no claim to core value speech -- it is commercial and, at least with respect to using protected music, it is completely unrelated to the free commerce of ideas.

Nonetheless, I have previously indicated that, to the extent I am able (and this is a big qualifier -- it depends on my two employers consenting), I would try to make myself available to defend, on a pro bono basis, any wedding videographer who is sued for using the bride's favorite CD as a sound track. I can't make promises but I really am with all of you -- it SHOULD be legal. However, I don't make the law, I only explain it and, right now, the law is pretty clear.

[Susanto Widjaja]

Originally Posted by Paul Tauger

Nonetheless, I have previously indicated that, to the extent I am able (and this is a big qualifier -- it depends on my two employers consenting), I would try to make myself available to defend, on a pro bono basis, any wedding videographer who is sued for using the bride's favorite CD as a sound track.

props to you paul.

[Travis Cossel]

Originally Posted by Paul Tauger

Nonetheless, I have previously indicated that, to the extent I am able (and this is a big qualifier -- it depends on my two employers consenting), I would try to make myself available to defend, on a pro bono basis, any wedding videographer who is sued for using the bride's favorite CD as a sound track.

That's it. I'm moving to LA. d;-)

[John Wiley]

This thread reminded me of an interview we were showed in a uni course where a high profile music producer was being questioned on how the hip-hip industry was dealing with copyright infrignement through sampling. The interviewer played a very short snippet of a song - one syllable of one word, or about 1/4 of a second - and asked him how much that sound was worth and what it would cost for each sampling of that sound in a new work.

The interviewee replied very seriously, without barely even blinking, that it was worth about $7.

Music copywright may seem unfair but it is the very same laws that protect our video's and films as well... so i guess it's a double edged sword.

I am lucky enough to be in Australia where we have the licensing fee - I just found out about it last week during a job interview with a wedding production company. I've never done wedding's before and one of the main concerns I raised with them was music copyright - I was very pleased to hear the licensing fee took care of this!

[Warren Kawamoto]

Originally Posted by John Wiley

I am lucky enough to be in Australia where we have the licensing fee

Does this Australian licensing fee cover only Australian music, or does it provide international coverage as well? If it does cover American music, does the fee go through BMI and ASCAP? Just curious.

[Kevin Duffey]

Originally Posted by Warren Kawamoto

Does this Australian licensing fee cover only Australian music, or does it provide international coverage as well? If it does cover American music, does the fee go through BMI and ASCAP? Just curious.

I was wondering the same thing. Thanks Paul for your support. Appreciated much.

[Dave Blackhurst]

Paul -
Thanks for weighing in, I appreciate your "eminent domain" reference, I consider myself conservative and that particular decision offended me greatly. You are correct in your analysis that individual rights are being outweighed more often than not at the expense of "corporate" or big business "rights". Personally I find this repugnant to the rights of the individual to "life, liberty, and the pursuit of happiness". This is after all America, and "we the people" still have a voice.

I think a short analysis of the typical "wedding" situations would be helpful.

Situation #1, you're "rolling" and a song is being played. (this is the NPR example). You have no control over what's being played, and it's "incidental" - your intent is not to capture a recording of the song and reproduce it for profit, your intent is to capture the moment, whatever music is being played. Videotaping is not illegal, and you're not trying to profit from or co-opt the original work - any profit is derived from memorializing the event, not copying someone else's IP. The "end user"/viewer is not playing the video back to listen to the song, but rather to watch the video of the event.

Sitation #2, as Paul has graciously offered to defend, you utilize a track from a legally purchased CD (or online, since this is more common now) as a "soundtrack" for the strictly limited use of a few copies of the wedding for the bride/family. Search "carterphone" on DVi and the web for a good example of how this sort of use of technology is not likely to be illegal - I've argued before that you could play the CD while editing, remove the soundtrack, then tell the bride to play the edited video along with the CD and achieve the exact same result... the fact that technology allows you to put both tracks together for personal uses shouldn't create an illegal act... This gets touchier because the song at least in theory has a special meaning, but the end user has a license to play that song back in one medium, by extension that license "should" provide for it being played back in a "shifted" medium. I have CD's, I have the right to rip them to MP3 and play them back via some other device... the medium itself is just a "container" for the IP.

Situation #3, DANGER WILL ROBINSON!!! This is a "logical extension" of situation #2 - you or the bride are proud of the final "wedding video" (it's really more of a highlight set to music, and this is where you run into problems as you ARE using someone else's IP for a derivative work and are in theory crossing into "sync rights" - something which may become outdated/obsolete over time due to technological progress IMO).

Since you or the bride are so proud of it... "someone" posts to UToob or other "open" video sharing site, it goes viral for some odd reason and now you've exposed the "borrowed" IP to a huge audience, let's say the IP holder isn't too happy about your video or thinks it reduces the value of his "work", or most likely you have "gained" from his work without his permission to use it and "distribute" it. You are now in the middle of a poo-storm extrordinaire, and likely at great risk even if you "won", and I don't think even a "liberal" reading of ANY copy-rights ANYWHERE will provide you protection, nor should it, IMO. Until there is a licensing system devised to allow for online use, it's really just painting a gigantic red circle on your posterior to do this!!


It's this third scenario that JJ tripped over, and given the reach and scope of the web, it's a HUGE potential problem area - ripe for litigation, and liability. Hopefully an agreement to "cease and desist"/mea culpa maxima can be worked out, that's the first thing I'd seek. If not, maybe some reasonable compensation can be worked out, but since the IP holder is already "vocal" about how much he spends on his attorney, I wouldn't hold my breath. I've worked with reasonable artists, and UNreasonable artists, same goes for attorneys, we can all hope for JJ's sake he finds everyone reasonable...



Hopefully that wasn't overly long, and perhaps can serve as a foundation for the "copyright" primer Chris, Paul and a number of the rest of us have discussed? I think it covers the scenarios wedding/event shooters are likely to encounter, if not, please throw out any others.