Using copyrighted music for weddings

[George Odell]

This must have come up prior and if so, please post a link.

How do you U.S. based wedding videographers justify using copyrighted music in your videos?

I say U.S. based because I have found there are licensing channels in places like the UK for using such music at very low rates as long as the number of copies is less than 5 or so. I cannot find anything like this process here in the USA so how does one do it, legally?

There was a posting on the net that claims (no copyright law is sited to back it up, though) you can use music for less than 10 copies if the bride/groom supplies you with CD's they own. I see this as a stretch of the clause for digital shifting that allows one to make a CD of a record they own but I'm not sure I would want to go to court with this as a defense.

BTW: There is now something called Zoomlicense.com that is part of WEVA but after searching that site I can not find any songs one would want to use.

Comments and advise, please.

[Boyd Ostroff]

Hi George. Use our search feature; click the search link on the blue menu bar > Advanced Search. Enter the work "copyright" in the keyword field and scroll the Search in Forum list down to select Wedding. You will get several pages of results.

However I should mention that copyright discussions have a way of ending badly around here, so please use restraint when discussing this subject.

[Greg Boston]

Originally Posted by George Odell

There was a posting on the net that claims (no copyright law is sited to back it up, though) you can use music for less than 10 copies if the bride/groom supplies you with CD's they own. I see this as a stretch of the clause for digital shifting that allows one to make a CD of a record they own but I'm not sure I would want to go to court with this as a defense.

Hi George, unfortunately, that's becoming one of those internet urban legends. Plain and simple, there's no structure currently in place that allows licensing of popular music at affordable rates for small distribution like wedding videos. I wish there were and it would be nice if a large organization like WEVA could get that on the legislative table. I really feel that copyright holders are losing out on a lot of potential royalty revenue in the current scenario.

Maybe it will change someday. I see the issue from both sides of the table. I wouldn't want my work stolen. And from the other side, I want to use whatever music the client desires. Of course it's going to be something with lots of airplay and popularity. That's how the B&G know about the song/s in the first place.

-gb-

[George Odell]

They do have it in other countries. There is a post on this forum from Australia and they have it. The UK also has it.

WEVA does have this new ZoomLicense thing through EMI but their catalog offers little that I see is desirable. They claim to be licensing new music daily but seemingly not from any current top artists that I can find through their online search.

Maybe it will change someday. I see the issue from both sides of the table. I wouldn't want my work stolen. And from the other side, I want to use whatever music the client desires."

So how do you meet their needs?

[Greg Boston]

I don't do weddings. And the music thing is probably one reason why. If WEVA got EMI on board, that means the process may be getting started. It will take awhile, just like it did with iTunes and legal downloading. If it works out well for EMI, then other publishers may follow. At the very least, it gives WEVA a chance to show the others that it's a workable business model. I was aware that other countries offered a reasonable licensing structure and I applaud them for having that in place.

-gb-

[Max Todorov]

I am no lawyer so take this with a grain of salt....

I spoke with lawyers on this issue and how fair use applies....

The bottom line "as I understand it" all comes down to how the video is used.

So if the Bride and Groom purchase the music CDs and you get them to sign a release that says that they (and who ever else will possess a copy of the video) will only view the video in the privacy of their own home its ok to use the music. However this video can not be publicly broadcast (put on Internet without a password).

It can not be played in any public event/place. And retirement home where you have your great grandma does count as public place..... So does the church or any other place where a NON invited person can be present.

It is also recommended that when you structure your contract that you provide videography service only and charge a flat fee for that. In that contract you can state that music provisioning and licensing is responsibility of the purchasing party. Hence you only provide your equipment and expertize the rest is on the purchasing party.

So that way if the party only shows the video to relatives in their own home they are utilizing their "fair use rights" if they choose to violate the law its their problem.

[George Odell]

Hey Max:

I'm not a lawyer either but I can see a potential problem with your theory. If you are acting as an independent contractor you cannot be excused from your legal responsibilities by somehow shifting them to the party doing the hiring.

You can still be held liable by your own actions regardless but especially if it was clear you knew what you were doing was illegal or at least a violation of the existing copyright law.

A "fair use" defense for wedding videos seems a bit of a stretch. First off, how is the "greater good" being served by your lifting a song for free and using it in a private party's video for which you are being paid a richly sum?

Second, if you use the entire song you pretty much kill "fair use" right off the bat since the amount you have lifted is no longer a small part of the overall whole of the work.

Finally, my understanding of "fair use" is intended to allow for one to comment or critique a work by including portions within the new piece. Not to allow one to use something belonging to someone else without paying for it's use.

How do you justify the making of more than a single DVD of the wedding. To copy it means you have violated the "digital shifting" clause. Now there is more than a single "archived" copy in play.

Ask your lawyer friends if they would be willing to represent you in court pro-bono using a "fair use" defense should you get sued. I'd be interested in their answer.

BTW: If there are any folks out there from the UK or Australia where they DO have a system in place... Can you tell us if the US artists are also included as part of the available catalog of songs you can license for a flat fee or is it only your own county's artists that are available to you.

[George Odell]

Please allow me to apologize for my heated reply to Max, above.

Sorry!

[Max Todorov]

Originally Posted by George Odell

Hey Max:


Finally, my understanding of "fair use" is intended to allow for one to comment or critique a work by including portions within the new piece. Not to allow one

The utilization of fair use as you say above is for works that will be public. For example if I want to show everyone in this forum how to use a song in a wedding video, I can take a snipped of the song for educational purposes and use it in my material. That material can be sold and shown publicly. So fair use allows for some usage of copyrighted work in commercial use. So if you are writing a book critiquing a song, you can use a snipped of the song being critiqued and get paid for the book.


What I am talking about is different. You can purchase a CD and play it in your house 1 million times. Thats "fair use". You bought it and you can play it for yourself privately as much as you like.

But here is a twist.....Lets assume you would like to make a stereo system that will play that song in every room. You hire contractor to put a stereo system in your house. He does that. Than you invite a bunch of people over to listen. The system does not work. You call the contractor he comes over and fixes the system on the spot. You ask him to pop in the CD... you play it. What if this was a paid event? Is the contractor liable for you playing the copyrighted music over the stereo system that he built?

My point above is that if the couple has "their song" and they say "we want" that song in that video, it is THEIR creative decision, you simply inserted the song into the video as a paid contractor on their direction. Hence if your contract with the couple states that they are RESPONSIBLE for licensing of music you are off the hook. They can use THEIR right to play their song in their house any time. So if they do not show the video publicly, they are in fact exercising the right to listed to the song they bought in the privacy of their own home.

Finally, this is not to be confused with a videographer who wants to use all kinds of music in the video and simply asks the couple to purchase cds. Then he/she sells the videos to every guest and charges for each purchased DVD. As you can see in my previous post... i recommended charging a flat fee for videography services. Hence you have to give up the rights to sell the actual video. The assumption is that you are giving up your copyright to the couple for one flat fee.... Hence they can make as many copies as they wish...... Obviously your flat fee has to cover all your expenses.... but thats a business and not a legal decision.

ONCE AGAIN I AM NOT A LAWYER

[Douglas Spotted Eagle]

Guys, I'm not a lawyer, but I play one on the internet.
Max, there is what you are referring to as "fair use" and then there is what the law calls "Fair Use." Unfortunately, many people confuse them.
If you want to put your own wedding video on a DVD that also contains copyrighted music for your own use, that is legal and *is* fair use. If you want to put your own wedding video on a DVD that also contains copyrighted music, and make copies of that DVD for your friends, that is not fair use nor Fair Use.

There is no relevant example where Fair Use can come into play for any 'for hire' use, excepting;
Parody
Social commentary
Political commentary
Certain (very specific) educational activities
Certain news-related stories
you might find an article I did some years back to be of value:
[url=http://www.dvinfo.net/articles/business/copyrightfaq1.php[/url]
While it's general, it's also quite specific as to our industry.
Having experience on both sides of the legal table in the copyright arena, it's reasonably clear as to what is and isn't permissible.
If you didn't create the original and don't have permission from the owner of the content, chances are great that you don't have the right to copy.
Australia, the UK, and few other countries do have low-cost licensing proviso's for small/limited uses of copyrighted works. Australia has this down best, but they also have other restrictions that we don't have in the USA. We'll be seeing some shift in this aspect of the industry sooner than later, thanks in no small part to groups like WEVA, DVPA, 4EverGroup, and other special-interest groups.

[Josh Laronge]

http://www.law.duke.edu/cspd/comics/digital.html

This is the coolest (and factual) explanation of fair use.

[Travis Cossel]

I'll be the first to admit I use popular music in my wedding videos and I don't have legal permission to do so. I wish there was a clear system to legally use the music, but there really isn't, and I think most videographers would agree that trying to sell your services to a couple and telling them you can only use stock music tracks (which they've never heard before) is going to lose you enough clients to put you out of business. So really, there doesn't seem to be much choice right now.

Now, I would have to also agree that putting in your contract that the couple is responsible for securing the rights to the music isn't going to protect you if things go to court. Most of the stuff in your contract probably wouldn't hold up in court (mine too).

Additionally, my wife is a photographer, and when people go to make prints of her work most places will ask the couple for a signed release; even Wal-Mart does this. Why? Because those photo places know that they can't simply take the customer's word and wash their hands of all responsibility. The same goes for us I'm sure.

So what I do is I purchase all of the music to be used in a video (usually from iTunes if they have it). I don't even ask the couple for it anymore, since they might just be burning me a copy of a track they downloaded illegally anyways. It doesn't make what I do legal, but it makes me feel like I'm at least doing the next best thing.

So the bottom line is, you probably are in for a tough decision. I'm a very straight-laced business person, but this is the one area that I feel I have to make an exception. If the artists get together and come up with a system for me to buy "use rights", then I'll be all over that. Until then, I'm doing what I feel is the next best thing.


Oh, and it doesn't matter if you charge a "flat fee" for videography. If you are distributing CD's or DVD's, and you're being paid for that, then it IS a product. This is why I have to charge sales tax on the entire amount I charge to a client for a wedding video, and not just on the cost of a DVD. It is considered a complete product and can't be separated out.

[George Odell]

My point above is that if the couple has "their song" and they say "we want" that song in that video, it is THEIR creative decision, you simply inserted the song into the video as a paid contractor on their direction. Hence if your contract with the couple states that they are RESPONSIBLE for licensing of music you are off the hook.

Again, as an independent contractor you cannot assign responsibility for infringement to the client. If you were employed by a company and they told you to use copyrighted music in the video you were editing then, yes, the company would be liable. As an independent contractor you take the responsibility for knowing the laws and abiding by them upon yourself.

Can't have it both ways. Want the freedom of being your own boss? Then accept the responsibility for your actions.

[Terence Murphy]

Originally Posted by Travis Cossel

So what I do is I purchase all of the music to be used in a video (usually from iTunes if they have it). I don't even ask the couple for it anymore, since they might just be burning me a copy of a track they downloaded illegally anyways. It doesn't make what I do legal, but it makes me feel like I'm at least doing the next best thing.

Does anybody know if the iTunes license clause that says you can't resell your purchased tracks has ever been tested in court? I recall assertions that such a restriction is illegal (if you can buy it, you can sell it), but I never heard of any challenges. If that clause in the iTunes license weren't there, then Travis's approach could actually be legal.

-Terence

[Greg Boston]

The problem with all this is that once you put the music with a picture, you have to obtain synchronization rights as well. It gets complicated real fast.

-gb-