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

[Travis Cossel]

Originally Posted by Mike Harvey

I have a theoretical situation for Dave... You shoot the wedding and make 10 DVD's. What if you purchased the song 10 times (one copy for each DVD), and upon handing over the DVD's, destroy or delete the song files? With $.99 downloads from a variety of sources, it's not exactly cost prohibitive. Since you purchased 10 copies of the song, and there are only 10 copies in existence... would this scenario run afoul of copyright law?

Yes, no and maybe.

Yes, because you don't have the rights to 'sync' the music with video.

No, because it's perfectly legal for you to purchase music and give it away (provided you aren't keeping copies for yourself).

Maybe, because if you're making a copy of the music, even if you're destroying the original, it could be considered illegal simply because you're making a copy. It's splitting hairs at that point, though.

[Paul Tauger]

Originally Posted by Mike Harvey

Oops, sorry... didn't mean to get you and Paul confused, Dave. (It was one of those days)



My problem is that with my luck, I would drop the rabbits foot as I tripped over a black cat under a ladder and fell into a mirror... which is why I asked.

I had thought of this idea a few months back, but your scenarios reminded me of it. Since most of these laws seem to be written with, and aimed at, the idea of public display or mass distribution,

No, no, a thousand times no!

17 U.S.C. § 106 Exclusive rights in copyrighted works

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

Copyright law is most definitely NOT limited to the idea of public display or mass distribution.

I didn't know if simply buying enough copies for a very limited distribution for private viewing would satisfy the copyright (i.e. "media shifting") provided it never makes it to Youtube.

Oy. There's so much wrong with this. Where to begin? ;)

First, buying copies does NOT give you any right to use the underlying work for any purpose whatsoever. All you get are rights in the physical copies, and those rights are limited to what is provided by license and/or rights that are not reserved to the copyright owner in Section 106, above. First Sale Doctrine says that you can give your legally-acquired copy away, you can rent it, you can loan it, you can sell it, or you can destory it. You have absolutely no right to either copy it, prepare derivative works or distribute the derivative works. These are rights that exclusively reserved to the copyright owner.

Second, "media shifting" applies to Fair Use analysis. "Media shifting," per se, is not authorized at law, except with respect to the very limited circumstances identified in the Audio Home Recording Act, 17 U.S.C. § 1008. For point of reference, here it is:

No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.

As you see it does not remotely address commercial wedding videography.

Fair Use is codified at 17 U.S.C. § 107. It provides four non-dispositive factors that are considered in determining whether a given use is a fair use. I've discussed fair use before, but the important thing you have to know is this: fair use is a [b]defense[b] to copyright infringement. This means that whether a given use is a fair use will be determined in the context of a trial for copyright infringement. Now, there are certain uses in which it is settled law that use in a specific context is fair use. THIS ISN'T ONE OF THEM. To my knowledge, wedding video usage has never been litigated. Now, my personal view (NOT my legal opinion) is that wedding video use SHOULD be fair use. However, until someone gets sued, the case is litigated and then appealed and the Circuit Court of Appeal finds it to be fair use and THEN at least a couple of other Circuit Courts of Appeal make the same finding in other cases, it is not settled law.

So, I hope you have the $300-400,000 it costs to defend a copyright infringement if you want to go down this road (or, alternatively, I hope my employers consent to my pro bono representation of you in this matter AND you have the cash to cover non-fee related costs).

Since a lawyer with copyright knowledge was on this thread, figured I should probably ask. I think I may wait for Paul to chime in before I attempt something like that (see my answer above about my luck)...

Consider me to have chimed. ;)

with the full understanding that any answer Paul may give on an internet board probably wouldn't constitute "legal advice" in a court of law. ("But your honor, some guy claiming to be a lawyer on the internet said I could...!")

I never give legal advice here. Well, that's not true -- I have on very, very rare occasion done so and, usually, it's along the lines of, "Here's my legal advice: consult a competent lawyer immediately and stop talking about what happened on internet websites." I'm usually pretty comfortable with that. ;)

[Doug Bennett]

Fair use is an equitable doctrine. As such its application cannot be limited by legislation. Attempts by Congress to codify fair use are completely illegitimate and are resisted aggressively by the judiciary.

to those with a legalistic frame of mind: US Supreme Court 1994 - majority opinion - obiter dicta 2 Live vs Roy Orbison (Pretty Woman)

FWIW - by the time the decision came down all the albums were recalled and the offending track had been removed at enormous expense, because even their own attorneys were advising 2LC that the case was hopeless.

[Paul Tauger]

Originally Posted by Doug Bennett

Fair use is an equitable doctrine. As such its application cannot be limited by legislation. Attempts by Congress to codify fair use are completely illegitimate and are resisted aggressively by the judiciary.

Sorry, but that's absolutely incorrect. Fair Use remains an equitable doctrine because the intent of Congress in codifying it was not to supplant it but to clarify it. Congress is completely within its powers under the Commerce Clause, as well as the Article I, Section 8 authorization for copyright, to address copyright in any way in which it chooses -- equitable doctrines are most certainly not "out of bounds."

[Mike Harvey]

So what you're saying is... I couldn't legally do that? ;)

Thanks for chiming in. Just thought I would ask. Looks like I'll be sticking with royalty free stuff (I have no desire to be the industry guinea pig...). And I appreciate the *very* thorough answer.

[Kevin Duffey]

I've learned more in this thread than I did in all of high school and college regarding copyright, infringement, and just about most everything else.

[Dave Blackhurst]

Originally Posted by Shaun Roemich

ULTIMATELY, right or wrong doesn't REALLY matter squat in a court of law: it's who can afford to litigate the longest. (The words of my former sister-in-law, a lawyer)

Sad, and oh so true... Right and wrong as most of us understand it disappear at the courtroom door, and as Paul points out, access to the Courts, while originally intended to be open to all, is a lofty thing financially - and the deeper pockets have a distinct advantage...


Paul -
A couple thoughts - while the copyright holder retains all rights, and is really only licensing the use of the IP, I believe it's been upheld that a legitimate purchaser MAY copy (for backup purposes at the least) or shift the media container of that IP for non-commercial personal use, without it being an infringement. The only flaw I see here is in "sync" of the IP with another work. It's the re-combination of the audio track with the images in a "derivative work" that in theory crosses the line, despite it being legal to play the audio while playing the video on two separate devices (mechanical sync if you will).

The one phrase that I see sticking out is "noncommercial use by a consumer of such a device or medium for making digital musical recordings" - and this raises the problematic question of "if the consumer can do it for themselves, at what point does it become illegal for someone to do it for them as (part of) a service"... I know the Kinko's case puts a kink in that line of reasoning, but the Carterphone example to me pushes it the other way...

I guess one could always mix the video to the audio, deliver a mixdown to the customer with basic instructions to use iMovie or Movie maker to combine with their choice of music - that wouldn't be illegal...

[Travis Cossel]

Originally Posted by Dave Blackhurst

I guess one could always mix the video to the audio, deliver a mixdown to the customer with basic instructions to use iMovie or Movie maker to combine with their choice of music - that wouldn't be illegal...

True .. but good luck selling that to brides. d;-)

[Paul Tauger]

Originally Posted by Kevin Duffey

I've learned more in this thread than I did in all of high school and college regarding copyright, infringement, and just about most everything else.

Glad to hear it. The final will be next week. ;)

[Paul Tauger]

Originally Posted by Dave Blackhurst

Paul -
A couple thoughts - while the copyright holder retains all rights, and is really only licensing the use of the IP, I believe it's been upheld that a legitimate purchaser MAY copy (for backup purposes at the least) or shift the media container of that IP for non-commercial personal use, without it being an infringement.

That's not correct, at least as far as I know. 17 U.S.C. § 117 provides for making backups of computer programs. As I've already mentioned, the AHRA prohibits infringement actions for copying audio for personal use. There are other provisions that allow libraries to make archival copies. There is no statutory authorization for making back-ups or for media-shifting. There have been cases that have found media shifting, e.g. CD to mp3, fair use.

The only flaw I see here is in "sync" of the IP with another work.

Not exactly. Combining a pre-recorded audio track with a visual work results in a derivative work. There's no express provision for a "sync right" in the statute. It is the right to prepare derivative works that is implicated.

It's the re-combination of the audio track with the images in a "derivative work" that in theory crosses the line, despite it being legal to play the audio while playing the video on two separate devices (mechanical sync if you will).

That's right.

The one phrase that I see sticking out is "noncommercial use by a consumer of such a device or medium for making digital musical recordings" - and this raises the problematic question of "if the consumer can do it for themselves, at what point does it become illegal for someone to do it for them as (part of) a service"... I know the Kinko's case puts a kink in that line of reasoning, but the Carterphone example to me pushes it the other way...

What makes you think the consumer can do it themselves? The AHRA applies to copies of audio recordings, not to preparation of derivative works.

I guess one could always mix the video to the audio, deliver a mixdown to the customer with basic instructions to use iMovie or Movie maker to combine with their choice of music - that wouldn't be illegal...

It might be contributory infringement.

[Nicholas de Kock]

You might as well have sold some drugs to cops in a police station! lol :-D
Delete the video off your site, deny deny deny or change your email, web-site, business name and run. They might just decide to make an example out of you, look at that poor woman they sued for over one million dollars! They're insane.

[Doug Bennett]

Paul - perhaps I can rephrase that in a way that we can both agree.

The codification of fair use within the Act cannot be taken as imposing any restrictions on judges deliberating whether a particular use is Fair Use or not. So no-one can say "that's not Fair Use because it's not listed".

The only reason that there is no specific provision relating to professional wedding videos and copyright music is because no lawyer, musician, music publisher or copyright owner has ever filed suit. There are just too many hungry attorneys out there desperate to stand up in a high profile court case and argue that a bride has the right to professional video of her first dance. That could lead to a show on Court TV. Yes Sony Worldwide Music Monolith might win $500, but they won't do it twice.

But, IMHO, wedding videographers have taken too much advantage. The Fair Use provision for Professional Wedding Video, if it is ever written, is not going to read "anyone describing themselves as a wedding videographer can ignore copyright law".

Look at what the Documentary Film Makers at the Center for Media Studies have done with their "Best Practices for Documentary Film Makers in Fair Use". They get together with a bunch of IP attorneys and law school professors and develop a set of codes and best practices. This document has no legal standing whatsoever. But any filmmaker who follows those practices can be fairly confident that:

1. he/she will find it relatively easy to get A-list pro-bono legal help
2. any judgement will be for proven damages only. There will be no penalty damages because he/she acted in good faith according to the codes and practices of the industry.

Why don't the Wedding Video trade groups follow that route? What would a "Best Fair Use Guidelines for wedding videographers" look like?

[Paul Tauger]

Originally Posted by Doug Bennett

Paul - perhaps I can rephrase that in a way that we can both agree.

The codification of fair use within the Act cannot be taken as imposing any restrictions on judges deliberating whether a particular use is Fair Use or not. So no-one can say "that's not Fair Use because it's not listed".

That's not quite correct. The codification of fair use in the statute provides a compulsory guideline for judicial analysis. However, judges are afforded discretion in the weight given to each factor, nor are the four factors listed comprehensive. It is reversable error if a judge fails to consider the statutory factors, but solely within to the discretion of the court as to whether any listed factor or combination of factors is or is not dispositive, as well as whether other factors should be considered as well, i.e. a judge can't simply ignore the statute but, similarly, it is within the judge's discretion to find other factors compelling provided that he has considered the statutory factors. Accordingly, a judge who decides a fair use case predicated solely upon a First Amendment analysis, without at least considering effect on the market for the original, etc., has committed error. The significance of fair use remaining an equitable doctrine is that lay people (or, for that matter, lawyers who don't practice in this area) will, inevitably, come up with the wrong answer if they attempt to analyze a fair use question solely with reference to the plain language of the statute.

The only reason that there is no specific provision relating to professional wedding videos and copyright music is because no lawyer, musician, music publisher or copyright owner has ever filed suit.

I'll clarify that: there has been no reported case. There's no easy way to determine whether a suit has ever been filed addressing use of copyright-protected music for a wedding video. District court decisions are reported only if the editors of the official reporters decide the case is of sufficient interest. All appellate decisions are published except those that the Circuit Court of Appeal determines aren't appropriate for publication. Usually, the IP reporters will pick up copyright cases that aren't reported in the official reporters. However, without examining the docket for each and every district court in the U.S., there's no way to tell whether anyone has ever sued or been sued on this fact pattern.

There are just too many hungry attorneys out there desperate to stand up in a high profile court case and argue that a bride has the right to professional video of her first dance.

And that's the point -- a wedding video fair use matter wouldn't be a high-profile case. There are plenty of hungry attorneys, but darn few hungry IP attorneys -- though, in California, I'm not allowed to use the term, IP litigation is a "specialty," and not something that is or should be attempted by commercial litigators. Moreover, no one will defend a case on contingency -- there's no money to be made. I'm willing to do one of these pro bono because of my interest in video. How many other lawyers not only post in this forum, but also avidly follow the substantive forums on dvinfo.net? ;)

That could lead to a show on Court TV.

I got kicked out of AFTRA for non-payment of dues a long time ago.

Yes Sony Worldwide Music Monolith might win $500, but they won't do it twice.

If Sony Worldwide Music Monolith sued and won, it will be considerably more than $500. Statutory damages range up to $250,000 PLUS court costs PLUS attorneys fees.

But, IMHO, wedding videographers have taken too much advantage. The Fair Use provision for Professional Wedding Video, if it is ever written, is not going to read "anyone describing themselves as a wedding videographer can ignore copyright law".

You're looking at it backwards. There's not going to be a statutory "wedding videographer exception" in the Copyright Act (at least, not unless a Senator finds out that he can't get the dream wedding video of his daughter's wedding because the videographer refuses to use the bride's favorite Manilow CD as a soundtrack). Instead, what will happen is a wedding videographer will get sued, a court will do a fair use analysis and find that particular fact pattern to be fair use. If I was arguing the case, I'd analogize to news reporting and focus on the lack of harm to the market for the original. If the videographer prevailed AND the case was reported, the lawyer for the next videographer who gets a cease-and-desist letter will, at least, have a case to cite in the responsive letter. By the time a few of these have been litigated in different jurisdictions, and a couple of them get appealed and upheld, a doctrine will emerge which will be fairly reliable.

Look at what the Documentary Film Makers at the Center for Media Studies have done with their "Best Practices for Documentary Film Makers in Fair Use". They get together with a bunch of IP attorneys and law school professors and develop a set of codes and best practices. This document has no legal standing whatsoever.

Not quite. It is, for all intents and purposes, a treatise and, like any treatise, is considered persuasive, i.e. it can be cited in litigation though, of course, it is not binding in any way on the court.

But any filmmaker who follows those practices can be fairly confident that:

1. he/she will find it relatively easy to get A-list pro-bono legal help

I've previously done pro bono work on a different fair use issue for a documentary film maker. However, most law firms are going to consider documentary film-making an important First Amendment activity. I don't think they will regard wedding videography the same way.

2. any judgement will be for proven damages only. There will be no penalty damages because he/she acted in good faith according to the codes and practices of the industry.

Copyright plaintiffs may elect between statutory damages and actual damages. With respect to wedding videography it would be insane for a plaintiff to elect actual damages. Moreover, merely citing the Best Practices document does not establish good faith, though it would certainly be suggestive of it. The only absolute guarantee that you won't be held liable for intentional infringement is if you get a formal non-infringement opinion letter from competent IP counsel. Even then, the letter only constitutes prima facie proof of lack of intent to infringe. As with any proof, a preponderance of evidence that rebuts the inference will overcome the presumption and you can still be found to have infringed intentionally.

Why don't the Wedding Video trade groups follow that route? What would a "Best Fair Use Guidelines for wedding videographers" look like?

I've repeatedly asked why WEVA doesn't lobby Congress for a compulsory license. I don't know what that organization does but it seems to me that use of music in this fashion is a critical concern to the industry. I can't imagine why WEVA wouldn't involve itself in this issue.

[Scott R. Shepherd]

If I understand the now-resolved dilemma, the OP used a recording of a musical composition in a wedding trailer. What if the composition had been performed live at the actual wedding? Is there a potential copyright infringement in that situation?

[Paul Tauger]

Originally Posted by Scott R. Shepherd

If I understand the now-resolved dilemma, the OP used a recording of a musical composition in a wedding trailer. What if the composition had been performed live at the actual wedding? Is there a potential copyright infringement in that situation?

Short answer: yes, but . . .

This has been discussed here a number of times, including in this thread. Do a search on "incidental reproduction."