Using copyrighted music for weddings

[Steve House]

Originally Posted by 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...

...
"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 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...).

...!

Not true at all. You are in business to shoot, edit, and assemble an event into a final product, creating a program - the wedding video - which you then sell at retail to the B&G, and you make a profit, your livelihood, from its sale. You are far more than a merely camera operator who points his camera where the director tells him or an editor cutting footage at the direction of a producer, simply following the directions of someone else who is responsible for the creative content. You are the producer, the creative force who is solely responsible for the content - the only role of the B&G is that of paying customer purchasing a customized piece of merchandise that you're offering to sell them.

Profit from exhibition or not doesn't enter the picture, or even whether its exhibited publically or not. It would be just as illegal if you gave them the video for free - just like it's illegal to go buy an audio CD and make copies on your computer to give to all your friends.

The B&G (or anyone else) can themselves make copies of an audio CD for their own use as they wish. What isn't legal is for a duplication house to take accept the CD that the couple owns from them and make a number of copies for them, charging a fee for the copy. The owner of the CD isn't violating the law but the duplication merchant is. The same rules apply if they bring you a CD, or you purchase a CD for them, and then copy the music to your video and then sell them the copy in the form of the wedding video you're selling them. You're in same boat as the duplication house making copies for a fee.

Your suggsted contract provision does nothing either. Sections of a contract that are contrary to law are void on their face. You can't give a drug dealer $1000 on his written promise that he'll bring you a quantity of coke the next day and then sue him in court for violating your contract if he doesn't deliver. The driver of a getaway car doen't get off by having his bank robber partner sign a waiver that he'll accept responsibility if they get caught. In the case of using unlicensed music in the video, as the merchant and working professional in the business of producing videos for sale you can be presumed to know the law and it's your responsibility to decline an illegal request from your customers just as it is the responsibility of any merchant in any industry.

What is especially interesting to me is that most still photographers who cover weddings follow the law with regard to respecting the copyrights of other photographers - try taking prints you purchased from wedding studio A over to wedding studio B and see if they'll make copies for you, fat chance! - and surely the demands from the wedding party on them to bend the law are just as strong as they are on videographers. As I said before, it's no wonder the wedding still shooters look down their noses at video people as not being fellow "true professionals" when they're on the scene - look at all the threads here about how often video people get no respect and little cooperation from the wedding planners, the still photographers, even sometimes even the officiants and the venues - threads such as prohibitions against wireless mics indicates the venue doesn't really care about the quality of sound in something they think of as a trivial product, compared to the way they'll often go out of their way to help the still shooter get good coverage. Look at the threads talking about how much more the still shooters get away with charging. I think it's at least partially because all too often the wedding videographer really does act more like a hobbyist than a business and media professional in the conduct of his business and certainly in the handling of requests to use music illegally, something filmmakers and working videographers in other specialties wouldn't even THINK of doing, it's too often true.

[Dave Blackhurst]

Steve -
First let me suggest your rhetoric reduces your credibility - labelling videographers "unprofessional" because they are struggling to sort out complex legal issues and suggesting they get no respect because of their inability to do so is frankly silly.

C'mon, get real here. The "professionals" discussing this are looking at this from a practical standpoint, and who knows, maybe this will lead to a solution... simply labeling (libeling?) everyone as a criminal with malicious intent is not helpful. If you've got practical solutions, offer them up, that will help everyone!!

Videographers memorializing a private event aren't criminals any more than someone who makes a copy of something they purchased for their own use (fair use is fundamental case law on copyright, albeit being constantly atacked and eroded by those who want the user to pay for EVERY SINGLE time they use or view a "work"). Time and format shifting are a relatively new multimedia phenomenon - and some say it shouldn't be legal, while at least some legal precedents and practical acknowledgement of REALITY say it IS. It's an evolving, complex issue, and calling everyone who doesn't see it your way a criminal is just rhetoric.

There's NOTHING fundamentally illegal about videotaping a private, not for profit event, for future private, not for profit viewing. There's nothing fundamentally illegal about offering professional services for shooting said video and editing it. The grey area is of course where the use of someone else's art or work may become involved... and it's VERY professional to discuss this rationally, to the credit of everyone posting.



You miss the simple point that a camera op and editor on a big production aren't worrying about clearances -there's a person or whole department dedicated to sorting our clearances and promotional consideration (i.e. in film "advertising"...). Watching a TV show the other night, it was pretty obvious that there was a sponsor giving the show "product" to "feature". I'm going to go out on a beefy limb here and say a musical artist would give away the rights to allow a "hit" TV show to feature their work prominently so their album would be "cross promoted". I've seen such blatant promotion more than once, and it makes sense...

To suggest that a small video operation, that can make it economically viable for a couple to have a lasting memory of their special day, is going to have a legal team to sort through and negotiate these issues is a bit absurd.

I think the B&G would rather have someone who can shoot straight and edit artfully than someone who spends all their time sorting out copyright clearances... especially since this is a one time private event on a schedule. Maybe one day we'll see Pepsi or Coke or some Vodka company "sponsoring" wedding videos... hey, the door swings both ways here... BUT until then...

If we're talking a few copies for family and friends, and as Travis suggested a copy is purchased for each DVD produced, the artist is compensated - I'm failing to see "damages", and I see a professional "solution" to a sticky problem. Perhaps imperfect, but certainly thoughtful!


I like analogies too, rather practical ones...

A couple buys a song on CD (or via the web), they have the right to play it for personal use and enjoyment, RIGHT? You produce a video designed to be played along with that "theme music" on a separate disc, and the couple pays you to create that video - the couple must simply press play on two players at the same time. Where is any law being broken? You have not facilitated any theft of copyright, but it's mighty inconvenient, so as a practical matter (using the miracles of modern digital technology), you record the two together so that they need only press one "play" button. The end result is the same, so where are the damages? Where is the "theft"? Where is the harm to the artist?? Presumably the couple will not be charging ayone to watch their wedding video, OR listening to the original music at the exact same time, SO they arguably have the right to shift formats of product they PAID for. You're facilitating the couple using their own "private property" for their personal enjoyment - not offering it for sale to anyone who comes along (and unless the couple happen to be famous, who would CARE anyway???)

NOW, here's the flip side (and I presume where you're coming from) - put that same video on the internet, and you've violated copyrights all over the place, and probably should be issued a "cease and desist" letter immediately.

There are a lot of people making their own "music videos" and "publishing" to the net without any regard to the rights of the original artist... "fair use" and "derivative work" aside, there is probably far too much of this going on...

Thus my suggestion that if you're a videographer (pro OR hobby-ist!) posting your work "in public" or for profit (including to promote your business), use buyout tracks or licensed or otherwise cleared music. The big danger is of course anything in a digital format can be illegally copied, even if you yourself didn't mean that to happen... so don't post anything you wouldn't want "stolen". If you wouldn't leave your CD sitting out for anyone to grab, don't post the same content on the internet!


Another analogy - a town decides that everyone should pay to park in a specific area... but instead of installing meters so it's easy to do, they put an obscure box on the outskirts of town, and give everyone who doesn't go out of their way to put their .25/.50/.75 in that box (did I mention different spaces have different prices... but there's no clear definition of which is which) a ticket and a huge fine becuse they are "criminals" violating the town ordinance. First, no one will go to that town, and anyone who does is nuts - the town "shot itself in the foot..." Second, while the town may have the right to collect payment for parking, thereby producing revenue, they also had an obligation to facilitate said payment in a reasonable and effective way, and their failure to do so is at the least negligence, taking the wind out of any claims they may have. Are you going to argue the town has acted reasonably, and the "criminals", who wouldn't mind paying the .25/.50/.75, but were prevented from doing so because of the lack of a practical way to do so, are terrible people and should pay huge fines??

One last practical analogy for the situation we have here... you're driving along, and stop at a red light. After sitting for several minutes, you come to realize that the light is "stuck" and after looking both ways to confirm that no traffic is coming you proceed through the intersection. You just ran a red light and broke the law, didn't you?? And I'll bet you've done this EXACT thing a time or two - the alternative was to sit there forever and hope things would change... that's not sensible either! You don't go running red lights just for giggles, you don't make a practice of it, but the "system" was broken, so you proceed "at your own risk" to get to your destination. Maybe you take that route 10 times a week, and the signal's ALWAYS broken, maybe you even call it in to whoever maintains the light... and it's still broken. Your choices are limited, so yes, you "turn to crime" <wink>, but does this make your intent criminal or malicious?? NOPE, just someone trying to get where you're going.

IP law is a major headache, no doubt, and we're saddled with a "broken", "analog" enforcement/compensation structure in a digital world. Online music in general has gone through this and arrived at some sort of "solution", so at some point this will be addressed... we can hope. Until then, as a practical matter, we must "proceed at our own risk". I believe that is the original intent of this thread, understanding that risk, and how to properly deal with it!!

Hope I haven't muddied the waters too much with such a long post , but I think the points are valid.

[Travis Cossel]

I actually think you make a good point about posting work on the internet. I'm going to have to mull that one over now. Although, if you post it as Flash, it seems it would be a lot harder to rip the song. Interesting either way.

[Richard Alvarez]

Proceed at your own risk... always good advice.

And went caught in a lawsuit , simply smile and say "Well, I knew it was always possible" and politely pay up.

[Dave Blackhurst]

Travis -

I think we forget how many "potential" viewers there are out there - if you've password protected your video so maybe a couple out of town relatives can come and see it for 6 months after the wedding (and maybe buy a copy), it's one thing, but to post "public", I think you open up the doors to an infringement claim BIG time.

After all, this was what the "file sharing" services got into trouble for - it basically provided a way to "give away" free access to stuff you bought to use yourself, thereby violating the implied agreement between you and the copyright owner (you can use it yourself for "fair use", resell the one copy if you don't want it anymore) - it's not terribly different from going and making a thousand copies of a CD that you don't own the content on, and giving them away... only it was easier... it damages someone else, that ain't right. And yes, where the rights owner hasn't been paid, it's theft of some other parties hard work. No one wants that.

How many guys lent out their record for a friend to check out and maybe make one copy? Maybe the guy goes and buys his own or some other records by the same artist because he digs the tunes... that was "back in the day". Lousy casette copies of relatively lo-fi scratchy vinyl...

NOW, with it all digital and the net everywhere, a thousand people can go load up for free - I watched guys doing this, and thinking nothing of it, and found it appalling. Digital content distribution changes everything.

BUT this doesn't mean EVERYONE is malicious and has criminal intent, technology is morally neutral, it's how it's used.

SO, who wants to put a company together to do digital rights management for videographers? Might be worth exploring... anyone got a few thousand spare hours? I see attorneys... AAAAAAAHHHHHHH!

<wink>

[Travis Cossel]

Yeah, my friends always got mad at me because I wouldn't let them make a copy of a new CD when I got one. They thought I was crazy for not using Napster when it was up and running.

[Steve House]

Originally Posted by Dave Blackhurst

Steve -
First let me suggest your rhetoric reduces your credibility - labelling videographers "unprofessional" because they are struggling to sort out complex legal issues and suggesting they get no respect because of their inability to do so is frankly silly.

I didn't label them as unprofessional. I said they are often labeled as such by commerical still photographers and others in the music, broadcasting, publishing, and filmmaking industries because the wedding videographers ignore the law that other creative professionals consider to be at the core of their intellectual property rights.

Videographers memorializing a private event aren't criminals any more than someone who makes a copy of something they purchased for their own use (fair use is fundamental case law on copyright, albeit being constantly atacked and eroded by those who want the user to pay for EVERY SINGLE time they use or view a "work").

But they're not making a copy for their own use - they're making a copy for sale to a third party, the B&G clients, as part of a commercial vienture.

There's NOTHING fundamentally illegal about videotaping a private, not for profit event, for future private, not for profit viewing. There's nothing fundamentally illegal about offering professional services for shooting said video and editing it.

Of course not, never said it was illegal, immoral, or fattening.

A couple buys a song on CD (or via the web), they have the right to play it for personal use and enjoyment, RIGHT? You produce a video designed to be played along with that "theme music" on a separate disc, and the couple pays you to create that video - the couple must simply press play on two players at the same time. Where is any law being broken? You have not facilitated any theft of copyright, but it's mighty inconvenient, so as a practical matter (using the miracles of modern digital technology), you record the two together so that they need only press one "play" button. The end result is the same, so where are the damages? Where is the "theft"? ....

The harm is in copying the music into another work without payment of the licenses that the owners of that intellectual property desire for that specific use. It's their party and they have absolute right to total control of what can or cannot be done with it. They say it's ok to listen to it, it's not okay for you to copy it and sell the copy, even if it's only one copy. It's legal for you to make a copy of a magazine article for your own use, it's not legal for Kinko's to make a copy for you.

NOW, here's the flip side (and I presume where you're coming from) - put that same video on the internet, and you've violated copyrights all over the place, and probably should be issued a "cease and desist" letter immediately.

While posting to the internet is an even worse violation, even making one copy of the song in the video for the B&G is also a violation.

[Travis Cossel]

Steve, seriously, you're really beating a dead horse here. No one is (or has been) arguing that it is legal to use copyrighted music in a wedding video. The real debate is over the practicality of the current law and how artists and publishers really feel about the issue.

Also, I've said it before and I'll say it again. Professional photographers don't look down on videographers because they use copyrighted music. As I pointed out earlier in the thread, most photographers now do music slideshows and they do they exact same thing we are doing.

[Steve House]

Originally Posted by Travis Cossel

Steve, seriously, you're really beating a dead horse here. No one is (or has been) arguing that it is legal to use copyrighted music in a wedding video. The real debate is over the practicality of the current law and how artists and publishers really feel about the issue.

Also, I've said it before and I'll say it again. Professional photographers don't look down on videographers because they use copyrighted music. As I pointed out earlier in the thread, most photographers now do music slideshows and they do they exact same thing we are doing.

I was merely pointing out the inconsistency in Dave's position where he seems to say it's certainly wrong to make a thousand copies of a music CD and give them to friends or to use unlicensed music in a clip on the internet because it exposes the music to massive copying or to post copied music on Napster back in its heyday, yet he doesn't seem to recognize that copying music by incorporating it into a commercial product and then selling that product to a customer is equally the wrong thing to do. Admittedly it is a market of 1 customer and they are buying a limited number of copies, but it is selling unlicensed copies of music as a commercial venture all the same, in no way different from selling pirated copies of software, music CDs, or movie DVDs.

[Travis Cossel]

In a purely legalistic sense, you're right. However, that's like saying killing someone in cold blood is just as illegal as double-parking. It's a true statement, but I think most people would agree that there is a definite difference between the two.

While it is illegal to use copyrighted music in a wedding video, there is a difference between that and straight-up piracy. With piracy, you're taking an artist's music, making copies, and then selling it to people that don't already have that music to listen to. With a wedding video, I'm taking music that the couple already has to listen to, and I'm simply syncing it with footage from a personal event in their life. In fact, in my case, I'm actually still purchasing a copy of the music, so the artist is making a sale they wouldn't have made otherwise.

I'm not saying that makes it "legal", but I think there's a distinct difference between blatant piracy for profit and using music in a wedding video.

[John C. Chu]

Originally Posted by Dave Blackhurst

SO, who wants to put a company together to do digital rights management for videographers? Might be worth exploring... anyone got a few thousand spare hours? I see attorneys... AAAAAAAHHHHHHH!

<wink>

I think this would be an excellent idea...why not make it something like iTunes..but for videographers/hobbiest etc?

Make the pricing fair and dare I say....more affordable?

My sister used to work for a big music company in New York. She has told me stories about how people used to always write letters for permission to use songs in wedding videos.

The problem is that there just isn't a system in place for the small time players to license music.

They are not going to bother negotiating with us--It requires too much man power and time for the fees they might get--they just don't do it.

So the basic answer would be "NO" for these requests.

I hope this changes, however.

Here's another interesting tidbit: I didn't realize that Rhino Records was originally a company that just makes compliations.

They go to the individual music companies with a proposal for a compliation album and the record companies might ask to see what other artists and songs will be on that album and then determine whether to grant permission and of course negotiate the final price.

Once that is done...they sell the record and they make money off of that. All you got to do is pick 15 songs!

How funny is that!

[Marco Wagner]

Use local, unsigned artists and bands. You'd be amazed at the pool of untapped talent out there. Many will give you all the necessary rights for free!!! I have about 15 bands signed up with me so far, 3 songs a piece, that's 45 songs currently available for my clients to choose from (length of contract -perpetual!). I also have a guy (one man band) in Niagara that has written and recorded about 200 songs and has indicated that I can use any and all, just send him the contract to sign.... Some artists and bands would like exposure too please, and will give it away, why don't you all try helping THEM out...


While this may not be the best solution for all, it very well should be until the record industry gets with it.

[Peter Ralph]

including copyrighted music in a wedding video need not be either immoral or illegal.

http://blog.timberlinevideo.com/?p=8

[Douglas Spotted Eagle]

that interview has been pointed to many times, and the point that is consistently missed is that it's a discussion of *incidental* music. This is not the same is ripping a CD and putting the same song in as incidental music.
The question of incidental music is ambiguous.
What is humorous (I'm assuming now, since I haven't listened to that NPR piece for at least a year), is he talks about "as long as you're documenting the wedding and not making a movie about the wedding..."
Aside from the gross ambiguity there, it's also debatable that the wedding pros are "documenting" vs "making a movie." Does documenting include compositing, color correction, 3D titles, and professional editing? All are components of making a movie, too. Where is the line in the sand?
I look at the works of a guy like Glenn Elliot and I don't see "documenting." I see "cinematography/movie."
Either way, the NPR interview is silly overall; he doesn't truly address this question, he only "talked to an attorney." There are attorneys here on DVInfo.net that don't agree amongst themselves on this subject.
It's not just a wedding issue; it's an event issue,and it's discussed in virtually every event photography forum you can find.
It's an ethical/moral issue as well as a legal one. You just gotta figure out where you want to sit in this highly fenced issue.

[Dave Blackhurst]

The distinction between recording an event as it happens and "scoring" or "syncing" as is done in a movie for effect seems simple enough, but you do have the issue of editing...

I'm definitely uncomfortable with the approach of making a "wedding music video" that uses a whole track... and I've seen that way too often, wouldn't do that myself.

I do believe that from a practical standpoint, if you are recording a private event, and what you are doing is "documenting" and "editing" that PRIVATE event, your liability should be limited. Presumably we have the right to record ourselves or someone else for pay, and if there's music playing, it's "incidental" to the event which is the reason the recording is taking place.

In other words, you are not there to record the music being played, you are there to record the individuals (privmarily the B&G and family/guests), taking part in a one time event that no one else will probably even care that much about... "so what" if music is playing in the background? It's not like a movie where everything is carefully choreographed to be "just so". The song is not going to be played thousands of times on a big screen and DVDs, it's going to be in the background whenever a private party relives their event... It's not like it's going to released as "B&G's big fat adventurous wild wild wedding" for profit - at least we hope not... no matter how great a production it is!



Steve: you remind me of the types that intellectually would like media to self destruct 5 seconds after it's played, and then you have to buy it all over again... as a practical matter, it is possible to buy a CD, and "own" the content - SURE, there are those who want us to pay for EVERY instance EVERY time that a song is played, for EVERY possible use... it's a nice argument... but not very realistic, AND AFAIK the courts have not upheld that interpretation.

One doesn't buy a CD to play it once. You buy it to have and use as you choose for PERSONAL, PRIVATE use, and if that includes "format shifting", then I think you're within fair use guidelines. Making one or two copies in various formats (.wav, .wmv, .mp3, etc.) so you can listen on the device you choose - even if that device happens to be playing a video simultaneously (you're still playing a single copy of the music you own) - should fall squarely within fair use guidelines.

If the B&G give you their CD and ask you to integrate it into the recording of their day, all you've done is "format shift" the music for them, something at least in theory they have the right to do, or pay you to do for them.

Post that same thing on the internet or make a pile of copies, now you're over the line. I'd probably sue you if I was an atty <wink>. Then again there's those 54 million dollar pants - there are limits to the absurdity... but not to the arguments attys can make!



Travis: those photogs realize that their "slideshow" gets really boring really quick, and that having a "soundtrack" makes it "work better"... now they just crossed the line above where they are producing a "movie" (actually more of a "performance art" piece)... DOH@!

Tricky stuff this IP law. What makes it so difficult is that we all agree that compensation for work is inherently fair, but since the methods and scales for compensation are so obscure, or ineffectual, we can't get a handle on what is "right". If you pay for a song to use one way, it's bizzare in this digital age to say it cannot be "repurposed" or "format shifted"... welcome to the digital age... buckle up, it's going to get bumpy!



Marco: I agree if you can use unsigned talent that wants exposure, that's great, probably an EXCELLENT approach for the videographer that wants to avoid the copyright issue altogether for posted demos and such, and has access to that resource. BUT, how many couples have "their song", and it's by some unknown artist....?

This does raise the interesting question of whether or not an artist is "harmed" by the exposure they receive by being "included" on a private personal wedding video... or would they feel honored to have their work mean so much to someone else that they wanted it in their personal event?

I presume deals are inked all the time for artists to "appear" at little or no cost/fee on a potential blockbuster hit movie or show so as to increase their exposure... it's called "cross advertising". Most movies have a soundtrack album now, and I presume the artist benefits from the sales of those (anyone actually buy 'em?).

Maybe including a little credit to the artist and info on where to get the song wouldn't be a bad idea? Credit where credit is due, and maybe someone else goes out and buys the song because they liked it on the wedding video their friend showed them...


Just some more random thoughts!

DB>)