Using copyrighted music for weddings

[Travis Cossel]

Martin, I totally agree, and I think WEVA has made some pushes in that area. It would be awesome if they managed to implement a system. It would finally give me a good reason to join WEVA.

Steve, I wasn't trying to provide justification, more like explanation. I also don't think your "crack" example makes the point you want. Let's face it, crack is illegal to everyone, and there are major efforts in place to police it. Music usage isn't illegal across the board. If you have the money (ie, a large enough project) then you can get the rights. The problem is that for a videographer making 3 copies of a video that maybe a dozen people will see, he's not making enough money for an artist to be interested in negotiating a usage deal. Because his project is so small time and essentialy harmless to the artist, he's also not worth pursuing in a legal sense. It's like a catch-22.

Denis, you make an excellent point. I think the music industry is missing a nice opportunity here. The vast majority of videographers would gladly pay a yearly fee to gain legal-use rights to music, and there are A LOT of videographers out there. That's A LOT of additional money that the artists could be making. For whatever reason, it just hasn't happened yet. I'm assuming that it will eventually, though.

[Steve House]

Originally Posted by Travis Cossel

...

Steve, I wasn't trying to provide justification, more like explanation. I also don't think your "crack" example makes the point you want. Let's face it, crack is illegal to everyone, and there are major efforts in place to police it. Music usage isn't illegal across the board. If you have the money (ie, a large enough project) then you can get the rights. The problem is that for a videographer making 3 copies of a video that maybe a dozen people will see, he's not making enough money for an artist to be interested in negotiating a usage deal. Because his project is so small time and essentialy harmless to the artist, he's also not worth pursuing in a legal sense. It's like a catch-22.

...

But we're not talking about legal music usage, we're talking about copying without permission and then selling the copies for a profit, which is, in fact, illegal across the board. There is really no difference between that and say the corner computer shops who sell PCs loaded up with pirated copies of Windows and other software. It's not limited to 3 copies of a song on a video seen by a handful of people either - if you're a successful video firm you may end up selling hundred of copies of a single popular song over the course of a season and that's really no difference between that and making clones of the CD as a commercial venture and selling them under the counter at your corner 7/11 store. It's absolutely not harmless to the artist because it dilutes the value of the song as a piece of commercial property. The public gets bored very quickly - the more exposure a song has, the more the people hear it in different places, the sooner they get tired of it and the sooner the market value drops as it's replaced by a shiney new tune that has caught the publics' ears. While it's in the artist's interest to secure airplay of the tune, it's not in the artist's interest at all to have it cropping up around every corner.

[Denis Danatzko]

for music from the Harry Fox agency. I've been told they handle a vast majority of that for a large portion of the music industry. Poking around their site, and "testing" their online process (as it existed at that time) to make copies of, I think, one of the older Beach Boys songs, I found that they had a minimum amount of 500. There was no way to "order" or "purchase" an amount below 500, as if they couldn't be bothered.

Wouldn't it be nice if that could be argued to serve as tacit approval for anyone willing to use less than 500 copies? Or, less likely, is there already legal precedent for that? (I doubt it).

Once, I was given what I strongly suspect was copyrighted, recorded music to overlay the soundtrack of a play I once shot; far from complete songs, but longer than I understand "fair use" to cover. I burned it to DVD and gave it to the client. It was a single DVD that the client said they would use to burn copies themself, one at a time. However, when I did the credits, I listed everyone except myself, for fear of infringement reprisal.(didn't want my fledgling business name associated with the recording)...didn't even use a lead-in. I also recently learned that the client has made so many copies, that they now want another "original" to make even more. And, I've been hired back to tape this year's performance, which will almost certainly be under the same circumstances. (It was for a non-profit, so my motives were at least altruistic, even though that wouldn't exonerate me). What to do, what to do.

I'll probably do the same as last year and miss out on all that free publicity on the hundreds of copies they'll likely make. Which raises some questions:
if the client makes the copies, and distributes them, does liability still rest with the videographer? Does it matter if the copies are distributed free, or "at cost" and without a profit? (Cost being the amount fo money to purchase the blanks and ink).

[Travis Cossel]

Originally Posted by Steve House

But we're not talking about legal music usage, we're talking about copying without permission and then selling the copies for a profit, which is, in fact, illegal across the board. There is really no difference between that and say the corner computer shops who sell PCs loaded up with pirated copies of Windows and other software. It's not limited to 3 copies of a song on a video seen by a handful of people either - if you're a successful video firm you may end up selling hundred of copies of a single popular song over the course of a season and that's really no difference between that and making clones of the CD as a commercial venture and selling them under the counter at your corner 7/11 store. It's absolutely not harmless to the artist because it dilutes the value of the song as a piece of commercial property. The public gets bored very quickly - the more exposure a song has, the more the people hear it in different places, the sooner they get tired of it and the sooner the market value drops as it's replaced by a shiney new tune that has caught the publics' ears. While it's in the artist's interest to secure airplay of the tune, it's not in the artist's interest at all to have it cropping up around every corner.

In your "crack example" there is no scenario in which using crack is legal. With music usage, if you have a large enough project with a good budget, then you have options open to you to make it legal. That is why I was saying that your "crack example" is a poor example.

I also think that comparing what videographers do to copying and selling music CD's or pirating softare is a poor example. With music and software piracy the client's goal is to gain music or software that he didn't previously own. 95% of my clients already own the music they are requesting on their DVD, but regardless of that, I STILL BUY THE MUSIC for every single project. So whereas with music and software piracy the artist or company is losing out on potential sales, they are actually gaining sales in the videographry scenario because I'm buying the music. Furthermore, with music and software piracy there is an alternative. Go to the store and buy the music or software. In the videographer scenario there is no alternative.

Now you may say the alternative is to contact the artist or publisher of the song and negotiate the rights, but that's a ridiculous suggestion because there's very little profit on a wedding video and the artist doesn't have enough to gain to make drawing up a bunch of legal paperwork worthwhile.

Finally, I have to disagree that the added exposure that videographers give artists is hurting them. Most artists are struggling every day to find new ways to gain exposure, not limit it.

[Travis Cossel]

Originally Posted by Denis Danatzko

Which raises some questions:
if the client makes the copies, and distributes them, does liability still rest with the videographer? Does it matter if the copies are distributed free, or "at cost" and without a profit? (Cost being the amount fo money to purchase the blanks and ink).

My understanding is that you would still be partially responsible, since you don't have permission to "sync" the music with footage.

When it comes to copyrighted music, I draw the line if the project is beyond the scope of personal use. In other words, I'll do a wedding highlights video for a couple or a photo montage for someone's grandma, but if a company comes to me and wants to use copyrighted music in their promotional video - no way. The client's intent becomes entirely different at that point.

[Elliot Lee]

I haven't seen these points mentioned yet, so I'm going to chime in.

Yes, it's admirable and virtuous to want to do "the right thing" when it comes to music licenses. However, the music industry as it exists today does not seem to make it possible to do the right thing in this particular situation and still be competitive in the wedding videography field. The music industry has an archaic business model that consists of trying to make as much money as possible on huge volumes to consumers, while charging obscene amounts for obscure things like synchronization rights, performance rights, and blow-your-nose-to-the-music rights. The music industry wanting to make money is not a good or bad thing, just a reality to deal with.

The Internet will hopefully change all this in time (look at what iTunes has already done to change the landscape for mainstream music consumers). For now the debate will continue to rage on, and the options will range from using stock music, to buying the tracks on iTunes, to having clients sign probably meaningless contracts, to ignoring the risks altogether.

This is somewhat a debate about morals, yes, but it is also a debate about best business practices. On the moral front, I leave you to make your own decision. There's nothing wrong with following your conscience before the almighty dollar, and it seems right to want to give the artists their fair share whenever possible. Remember, however, that concepts such as synchronization rights are not part of the ten commandments. :)

On the business front, it's really a simple cost/benefit analysis. The only thing that matters is whether you're going to get sued and lose. I would suggest that for now, the likelihood of getting sued is fairly low. Although the RIAA does not seem to care much about its reputation, I think that even they would not want to take the PR hit from suing newlyweds. If a lawsuit actually did happen, my guess is that the risk of losing would be fairly high, and the damages awarded would be moderate (4-5 figures, not including lawyer's fees).

But, I am not a lawyer. So I would also suggest that you talk with a lawyer about the best way to manage these risks. If you are running a business without having a lawyer as a resource, you're asking for problems beyond just the RIAA...

Hope this helps,
-- Elliot

[Steve House]

Originally Posted by Travis Cossel

...

Finally, I have to disagree that the added exposure that videographers give artists is hurting them. Most artists are struggling every day to find new ways to gain exposure, not limit it.

But with rare exceptions, the music the B&G want is not from struggling artists seeking recognition, it's from top-line name talent who have more than their share of recognition already. Their talent is in high demand and that's why permission to use their work is so pricey. Think Shania Twain needs your help in gaining recognition? LOL

[Steve House]

Originally Posted by Elliot Lee

...
On the business front, it's really a simple cost/benefit analysis. The only thing that matters is whether you're going to get sued and lose. I would suggest that for now, the likelihood of getting sued is fairly low. Although the RIAA does not seem to care much about its reputation, I think that even they would not want to take the PR hit from suing newlyweds. If a lawsuit actually did happen, my guess is that the risk of losing would be fairly high, and the damages awarded would be moderate (4-5 figures, not including lawyer's fees).

...-- Elliot

Buit they're not going to sue the newlyweds, they're not the party that made the illegal copy. They're going to come after YOU as the person selling pirating copies of the work because you are the one who actually did the deed.

The argument that if there were easy and inexpensive ways to license the music everyone would do it doesn't wash but since it's not, well, we can just go take it anyway. That's the excuse of the burglar - "I can't afford that bling but I've got a right to have it." We can assume because of the lack of interest on the part of the music publishing industry in establishing a such as system that the music is difficult to license and expensive because by and large the owners of the property don't want it to be used that way. It's their property and they have that right.

[Travis Cossel]

Originally Posted by Steve House

But with rare exceptions, the music the B&G want is not from struggling artists seeking recognition, it's from top-line name talent who have more than their share of recognition already. Their talent is in high demand and that's why permission to use their work is so pricey. Think Shania Twain needs your help in gaining recognition? LOL

I think you misread my post. I didn't say "struggling artists". I said most artists are struggling to gain exposure. Yes, even the big-name artists are always looking for new ways to promote themselves. So, yes, I think if I create a highlights video to a Shania Twain song it helps Mrs. Twain. Why? Because the couple now associates that song and artist directly with the most beautiful day of their life.

Case in point. When my wife and I got married I used Green Day's "Time of Your Life" for the highlights (the song is actually titled "Good Riddance", but SHHHHH! d;-) ). My wife was never into Green Day, but after hearing the song and having it a part of our wedding, she now has actually gone to a Green Day concert, listens to their music on occassion, and points out "Time of Your Life" to anyone and everyone if it comes on the radio. It's now "our song". That can only be good for a band like Green Day, who certainly isn't a "struggling artist" either.

[Travis Cossel]

Originally Posted by Steve House

The argument that if there were easy and inexpensive ways to license the music everyone would do it doesn't wash but since it's not, well, we can just go take it anyway.

I don't think you're giving the vast majority of wedding videographers due credit. I would bet that at least 75% of videographers would readily adopt to a system where you pay a fee for rights to use music. We want the peace of mind.

Originally Posted by Steve House

We can assume because of the lack of interest on the part of the music publishing industry in establishing a such as system that the music is difficult to license and expensive because by and large the owners of the property don't want it to be used that way. It's their property and they have that right.

Actually, I don't think you can make that assumption either. There was pretty strong demand for a system like Napster (which I didn't use) for quite a while and the music industry didn't do anything. But after a while they recognized the profit potential and now you have systems like iTunes. I think eventually they will create something for videographers, but not until they recognize that there are profits to be made.

[Steve House]

Originally Posted by Travis Cossel

I don't think you're giving the vast majority of wedding videographers due credit. I would bet that at least 75% of videographers would readily adopt to a system where you pay a fee for rights to use music. We want the peace of mind.
....

I agree - I think they would too. What I take exception to is the attitude that since such as system doesn't yet exist and they can't afford the licenses or can't negotiate the admittedly formidable hurdles to getting licenses to popular songs with the present system (and licensing IS possible, just a real PITA and prohibitivley expensive), they're going to go ahead and use the music anyway and hope nobody catches them. I think that is the wrong thing to do.

[Travis Cossel]

Originally Posted by Steve House

I agree - I think they would too. What I take exception to is the attitude that since such as system doesn't yet exist and they can't afford the licenses or can't negotiate the admittedly formidable hurdles to getting licenses to popular songs with the present system (and licensing IS possible, just a real PITA and prohibitivley expensive), they're going to go ahead and use the music anyway and hope nobody catches them. I think that is the wrong thing to do.

It is the wrong thing to do AND perhaps the only thing to do.

I was in business for just over 3 years when I first learned that using music a couple provided was not legal. By then I had already quit my other job, and invested nearly $20k in my new business. My options were limited. Switch to using stock music only; a move I'm pretty sure would end my ability to stay in business. Quit the business and walk away with $20k in debt. Or stay in the business and do what every other videographer has been doing for decades.

If the end-all of your argument is that using the music is wrong, then you've made your point and we've all agreed with you before you ever made it. My point is that for those of us ACTUALLY IN THE SITUATION, the decision of what to do is not that simple.

[Elliot Lee]

Originally Posted by Steve House

Buit they're not going to sue the newlyweds, they're not the party that made the illegal copy. They're going to come after YOU as the person selling pirating copies of the work because you are the one who actually did the deed.

I understand that, but I still maintain that the likelihood of a lawsuit is fairly low, because wedding videography is not a business with a few large players that can be easily sued for large amounts of money, and RIAA lawsuits for the sake of making an example of the little guy are an unquantifiable risk at this point.

The argument that if there were easy and inexpensive ways to license the music everyone would do it doesn't wash but since it's not, well, we can just go take it anyway. That's the excuse of the burglar - "I can't afford that bling but I've got a right to have it."

That's one viewpoint that I can see the merit of, but I also have to acknowledge that there are equally good arguments for other view points. I don't think this is the place to convince people of particular views. This is because it detracts from a focus on the primary topic - making great wedding videos for people - and because it gets into legal issues that none of us are really qualified to make authoritative statements on.

I think this *is* the place to help videographers understand the consequences of their music decisions. Beyond that, it's just a pointless bunch of noise.

Best,
-- Elliot

[Glenn Davidson]

New Rule: If wedding videographers 'must' pirate music, then they have to use a crappy 22 khz, low bitrate, compressed mono version of the Bride's favorite song.

[Dave Blackhurst]

Some random thoughts for you all...

if the B&G are the "producers" and you are just the camera op and editor, being paid to memorialize the event for the couple, I'd think you've got a reasonable position. Does anyone sue the camera op or the editor? Perhaps caution in titles is in order... it's nice to be the "producer", until the buck (or subpoena) lands on your desk...

You aren't going to ask if the couple has a valid marriage license, whether they have warrants out for their arrest, what "cousin Vinnie" does for a living, or if there are any other legal irregularities about their little event are you? SO if they say here's the music we want our video to have and imply they own it, who are we to say they don't have the right to use it?

"don't ask" or spell it out in the contract - "B&G producing the event are responsible for providing any materials/songs/pictures to videographer, and are responsible for any clearances/rights to use said materials. In no event is the videographer responsible for the procurement of or failure to procure said clearances." B&G agree to indemnify videographer from any liability resulting from use of materials provided. (at least your legal bill is paid...)

If there's music playing in the background while you're shooting, the music is incidental to the video...
Whole nother ball game if YOU provide the music. You'd better have the rights...

I'd suggest if you produce a demo for "public promotion" you use something "generic" that doesn't have copyright issues, otherwise you ARE using someone elses work to promote your business... Danger.

If you produce 5-10 DVD's for the couple (What if you do more? Is there a "cut off"?) for PRIVATE non profit use for their personal viewing and remembering of their special day, it's hard to argue that video is somehow being produced for a "profit" from its exhibition. I think most copyright issues ultimately revolve around whether someone makes a profit from someone elses work... when you do a wedding video, you profit from YOUR work shoting and editing (see above), not particularly from the use of a specific song the couple says is "our song" (it's obviously not "their" song, but you get the idea...).



If one really thinks about it, how many bar bands do "cover tunes" that technically violate the performance rights of an artist, and how many artists are complaining that they somehow lose money when their tune gets blasted out one more time because people LIKE it???

Fame, "popularity" (and taking public office) tend to dilute the legal protections one has (anyone else sick of Paris???)- the more popular you are, the more difficult it is to argue that somehow that very popularity dilutes your economic standing.

The practical problem here is that the relatively small number of copies that the average videographer will produce for the couples' private viewing pleasure are typically so small as to be a rounding error... Yes it would be nice if every artist could get a couple pennies EVERY time someone used their work, but I suspect that the "inventor" of such a system will die a pauper...

SO, until that system pops into being, be careful how you use someone elses work... Until then, Travis's approach of buying a copy for each DVD produced from whatever music service sells it at least shows an attempt to compensate the artist - and in fact compensation... diluting any argument that the artist somehow was damaged.

For what they're worth... some ideas, best not to get sued, maybe this will help y'all be safe out there!