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

[Paul Tauger]

Originally Posted by 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 don't want to turn this into a political thread, so I'll just say that I disagree with nothing you've written above.

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

Me. too. ;)

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.

I'll provide the legal answer, only. This is an area called "incidental reproduction." There is very, very little law on this -- I've only found a couple of published decisions. Looking at the situation literally, you are making an unauthorized copy of the music that is played -- it's therefore copyright infringement. The question is, does fair use apply? The answer is, possibly, unless you want me to provide a binding legal opinion, in which case the answer is, "no.' ;)

There is no bright line rule for incidental reproduction. However, the decisions seem to suggest the following:

1. If only a portion of the entire musical number is used, it is more likely than less likely to be considered fair use.
2. If the purpose of the incidental reproduction is reportorial, as opposed to commercial, it is more likely than less likely to be considered fair use.

So what does this mean to a wedding videographer? When you're shooting the couple's first dance, don't use the entire song and definitely don't use it as a sound track, e.g. using it as underscore for other sections of the video. I think a good argument can be made that wedding videos are reportorial -- after all, their function is to document the wedding. However, this is a very, very gray area at the moment. It's been a couple of years since I've looked at it but my recollection is that there were only a couple of district court, i.e. non-precedential, decisions that addressed incidental reproduction and none involved wedding or event videography.

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.

Here's the problem with your analysis. When the bride plays the CD along with the video, no copy has been created, so no reserved right has been infringed. Though, in practical terms, it should not make a difference whether the music is on a CD or transfered to an audio track on the video, the legal difference is profound: one is not an unauthorized copy, the other is. As I've said, I really think this should come within fair use, but I'm not prepared to bet the farm on saying that it would.

Also, note that using the CD for a sound track MAY be fair use. Putting up a trailer that uses it on a website to sell the videographer's services almost certainly would not.

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!!

Yep -- I agree with 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...

Speaking practically, which is something lawyers rarely do, JJ's problem was getting caught. As I noted, using unlicensed music in this way is not fair use and, what made it even worse, notifying the copyright owner via twitter that you're infringing is . . . well . . . not a good idea.

The reason animals herd is for safety -- predators pick off the weakest members at the fringes. There are an awful lot of wedding videographers using commercial CDs and the odds are that, eventually, someone on the fringes of the herd is going to get picked off.

For now, my legal advice is this: use royalty-free music or obtain a license to use the bride's favorite CD. Also, incorporate yourself as a limited liability corporation, observe all of the corporate formalities, obtain CGL, preferably with an intellectual property rider, and don't use your house as collateral for an equipment loan.

[Kevin Duffey]

Just a note on the LLC thing.. for those of us that run small businesses..I think you can form S-Corp.. its easier, cheaper and provides the same protections as LLC for small businesses.. I think? Paul I am guessing could answer this best.

[J.J. Kim]

So as a conclusion to my thread :-)
Here is what I got from the musician's assistant this morning (while I was shooting a wedding):
"Dear JJ:

Using someone's copyrighted work to promote your own work is a violation of copyright law. Synchronization and master licenses are required. It's similar to someone using your creative product for their own self-promotion and financial gain without credit or compensation being given to you.

We are happy to license compositions for projects such as yours, but on a case-by-case basis. So we need to clean up the current situation first. Here's what xxxx recommended we do:

In lieu of a license fee, we'd like you to make a donation to a charity that we do a lot of work with, yyyzzzzyyyzzz (www.yyyzzzyyyyzzz.org). A donation of $150 ($50 per composition) would be appropriate. It can be made through their website via PayPal or credit card. You make good for the unauthorized use of the compositions below (1492, Magnetic Angels, Howard Sees the Sky) and it's a tax write-off for you or your company because they are a 501(c)3 non-profit organization. Just mark your donation "For urgent rescues/xxxxxxx License."

When you receive your receipt, or the thank-you note from the org's director, forward that along to us and we'll issue a license retroactively which will allow you to keep those trailers up on your website.

Best regards,

Zach G for xxxxxxxx"

I am very happy how it turned out... very.. very happy..
Thank you everyone for the support and advice, especially, Paul Tauger with very detailed infos, and I am not going to make same mistake ever again...(sigh)...
Have a great weekend, everyone..

Best,

JJ

[Susanto Widjaja]

WOWWWW...... GOOD ON YA JJ!!!

seriously its like watching a thriller movie with a happy ending.

we can now all proceed our way out of the theatre with warm feelings that there are still very very nice cool people in the world.

The charity bit really touched my heart. The fact that this guy doesn't want a penny from JJ but instead he still want JJ to contribute something for his license.. is magic..

Wooohooooooo!!!

Santo

[J.J. Kim]

Thank you, Susanto
I was extremely relieved when my wife called me while I was shooting a wedding this morning and gave me the news.
Not only I am going to buy the license from him but also will give him credit in the beginning (briefly) for the trailers, cause he does make beautiful music.
Again... thank you all and Susanto, your works are very impressive and your creativity is extraordinary.
Have good night, ya'll.

jj

[Shaun Roemich]

Full marks to the "injured party" for playing this INCREDIBLY fairly!

[Stephen J. Williams]

J.J.

Even-though I didn't post and get caught up in the "great debate" earlier. I've been following this thread for the very beginning. I'm happy to hear that everything turned out well for you.

Steve

[Paul Tauger]

Originally Posted by J.J. Kim

So as a conclusion to my thread :-)
Here is what I got from the musician's assistant this morning (while I was shooting a wedding):
"Dear JJ:

Using someone's copyrighted work to promote your own work is a violation of copyright law. Synchronization and master licenses are required. It's similar to someone using your creative product for their own self-promotion and financial gain without credit or compensation being given to you.

We are happy to license compositions for projects such as yours, but on a case-by-case basis. So we need to clean up the current situation first. Here's what xxxx recommended we do:

In lieu of a license fee, we'd like you to make a donation to a charity that we do a lot of work with, yyyzzzzyyyzzz (www.yyyzzzyyyyzzz.org). A donation of $150 ($50 per composition) would be appropriate. It can be made through their website via PayPal or credit card. You make good for the unauthorized use of the compositions below (1492, Magnetic Angels, Howard Sees the Sky) and it's a tax write-off for you or your company because they are a 501(c)3 non-profit organization. Just mark your donation "For urgent rescues/xxxxxxx License."

When you receive your receipt, or the thank-you note from the org's director, forward that along to us and we'll issue a license retroactively which will allow you to keep those trailers up on your website.

Best regards,

Zach G for xxxxxxxx"

I am very happy how it turned out... very.. very happy..
Thank you everyone for the support and advice, especially, Paul Tauger with very detailed infos, and I am not going to make same mistake ever again...(sigh)...
Have a great weekend, everyone..

Best,

JJ

That's a terrific outcome! I'll bet you'll sleep better tonight. :)

[Travis Cossel]

That's awesome news, J.J., and it really shows that there's hope for a revised system of some sort. Very amiable of them to offer you this resolution!

[Dave Blackhurst]

JJ -
Sounds like a good reasonable artist, glad to hear the result, lessons learned, and nice to know there are still some good decent people out there.


Paul -
I agree this isn't the place for politics, better a place for common sense!

On situation #1, I concur with your analysis, the lack of precedent is always worrisome, but I think your qualifiers are good (use portions not the whole, and regard the work as a "private documentary"), I suspect that one major photo studio moving into the video area has reached the same conclusions, based upon their position I've seen.

Situation #2, I'm using the analogy of the Carterphone case that Chris posted a while back elsewhere on the forum. The logical combination of the technologies involved (i.e. media shifting from a legitimately purchased CD/MP3 to the audio track of a DVD) shouldn't result in infringement.

While you are making a "copy", you can't as a practical matter play the original simultaneously with the copy, and you have the right to play the 1's and 0's of the original, arguably regardless of the "container" (media) - it's like if I copy a CD to my MP3 player - I've made a copy for my use and enjoyment, and I have the right to media shift that "copy" to a media most convenient and condusive to my personal enjoyment.

The rapid changes in digital media are stretching the boundaries - thus my comment on the probable obsolecense of "sync rights" as a concept. "Multimedia" inherently starts to "mix up" which 1's and 0's are which. "Art" and "business" are at a messy intersection in the "digital revolution". The fact that one can do things on your destop that would have taken a multimillion $$$ studio even a few short years ago is cool, but it opens up a big can of worms.


And of course openly thumbing your nose at the requirements of being a good citizen, well, just not a good plan. And good advice about protecting yourself even if you "keep your nose clean"!! One run-in with unethical attorneys can ruin quite a few days, as I've personally experienced (and unfortunately that continues...).

[Paul Mailath]

I think I hear a collective sigh of relief from people around the world who've been following this thread.

it was more like a horror movie than a thriller - I'm just glad it's over and I'm out of the theatre and I was only watching!

[Noel Lising]

JJ that is great news. What's even better is you can even post the videos on Facebook coz you have the license to do so.

Thanks Bruce Patterson for the link. I'll contact them about licensing fees this Monday.

[Shaun Roemich]

Originally Posted by Dave Blackhurst

The logical combination of the technologies involved (i.e. media shifting from a legitimately purchased CD/MP3 to the audio track of a DVD) shouldn't result in infringement.

Dave, the only issue I see with this analogy is that is would require that the end user of the DVD retains it for themselves and DOESN'T make 10 copies for the relatives. To continue your analogy (which is a GOOD one IMHO), it would be just as illegal to send copies of the DVD to Aunt Ruth and her brood as it would be to purchase music CDs, burn copies and give them away as door prizes at your next social event - you've only bought the rights for your own personal copy (or copies, if you've chosen to archive the media OR encode for your MP3 player).

[Dave Blackhurst]

Shaun -
Your example is analogous to situation #3 -"someone" decides to copy/distribute/put online, and yes it is a risk. Technology once again opens doors to potential infringement, and it becomes incumbent on the owner/licensee to act appropriately.

Ever since it became possible to economically make a "copy" (tape, CD, Xerox, VCR, camera), the potential for "illegal" copies became a reality. BUT the purpose and capabilities of such devices (and the legal precedent) also allows for LEGAL uses. To borrow an analogy, "DVD burners don't infringe, people do..."

The cat's out of the bag as it were, it's possible to make copies and media shift, that's not going to change anytime soon. That's why I think we all struggle with what is legal, moral and ethical when something is POSSIBLE (and quite easy), but unclear as to what "the right thing" is. Common sense says once the 1's and 0's are purchased, personal use is allowed, including media shifting and copies. BUT...

That DOESN'T include copies for all your friends and relatives (though LENDING out your copy for them to listen to while you aren't isn't illegal... so there's some grey area here), or public posting, as that deprives the IP holder of compensation for the multiple uses. On the flip side, if you don't "share" a cool new tune, picture, video or whatever with your friends, the artists loses the benefit of "word of mouth", which inhibits THEIR ultimate success.

Much like software licenses which acknowledge that you may use the software on multiple machines within reason, there needs to be a defining standard allowing for "reasonable" use. I don't run a bunch of copies of "Word" simultaneously, but as my license allows, I have several installations for convenience. I can create documents for other people with that software too, even if they don't own "Word". And I don't have to pay every time I "use" the program... or pay on a sliding scale depending on whether I'm writing a note to myself or a book I intend to publish and sell a bazillion copies of. I've included those analogies to address the usual responses when "Copyright" comes up here. The analogy isn't perfect, obviously... but when you license something that inherently has multiple potential end uses (in the case of a music track, the buyer can listen at home, in the car, on an MP3 player, on a CD, or for the sake of argument on a DVD of their personal event), you need to acknowledge that those uses are foreseeable and reasonable. IMO the current "rights" system has a fundamental weakness in that it comes from a "phonographic reproduction" era and hasn't kept pace with the digital revolution.


Put on the IP holder shoes:
If you charge for DVD's, you most likely don't want a client purchasing one and making copies. I think a recent thread was mixed on this, but I personally don't want a disc out there that I didn't print (no "sharpie" copies please, except for the ones I clearly marked "demo" <wink>), and test. QC and all that. I'm not going to sue a client if they make a copy, but I'd rather make however many discs they need and keep an archival copy if they ever need more.

I think it probably would be a good idea to explain to the client that if they make copies or post online without authorization they are infringing (your work product as well as any media tracks).


AND... I think we may have stumbled across...

Situation #4, thanks to "web 2.0" - that would be if "someone" posts a "private" video (password protected, or only available to "authorized" "friends") . You've definitely opened the door to multiple viewers/users, yet you've restricted it to people who might watch it in your home, but due to distance or whatever would prefer to view on the web... it's "private" viewing, but if they can download the file and save a copy, you created a situation where infringement was easy. I think this opens the debate to the difference between "sharing", and allowing a copy to be made? And a slippery slope back to Situation #3, if it's "shared", but no copy can be made...

Oh the joys of the digital revolution...

[Bob Willis]

Blogger sentenced for leaking G N'R album - Yahoo! News