DSE
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Sep 22, 2009, 6:35 AM
Post #13 of 38
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Re: [Kenneth] Web Video Options are Many!
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A lot of folks still don't understand copyright. Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:
The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
The nature of the copyrighted work
The amount and substantiality of the portion used in relation to the copyrighted work as a whole
The effect of the use upon the potential market for, or value of, the copyrighted work I think the last line is this part of the fair use law is the reason that none of use has ever been sued for using copyrighted material. If you use a song from a band for a client's wedding video, which is meant for private home viewing, how much are you affecting the artists ability to sellor make income off that material? And when we put these videos on our website and blog are we really affecting the market for the song? If anything I think we are helping in some cases. I know there are many songs that I never would have purchased off iTunes if I didn't hear it in another videographer's work. And with some of these songs that we use I am a firm believer that the artist is specifically targeting the wedding industry. Butterfly Kisses was a horrible song, but it took on a life of it's own as a father/daughter dance song and the guy probably made a million bucks because of brides using it. I know that essentially we are breaking the law, but whether we are helping or hurting the artist can be debated. Several bands got "discovered through the use of Napster. I have read stories that the JK Wedding Entrance video helped to boost sales of the Chris Brown song Forever. I don't think the video person or the couple is attempting to make any money off the song. So Chris Brown could sue them but what would he get? No money and bad press. I think the same could be said for our products. Nobody wants to be known as the artist who sues videographers because one of their fans got married and wanted to use a song. http://www.youtube.com/watch?v=4-94JhLEiN0
Lordy, Fair Use again reign's its ugly head.
Even WEVA has figured this out and articulated it well to members. In no way, shape, nor form will Fair Use/107 ever apply to professionally (or amateur) generated video, unless it's done by a family member, isn't loaded onto the web, and isn't distributed.
I really do recommend you learn the RIAA's purpose in this. The RIAA and MPAA don't care about bad press. Everyone thought v Tenenbaum or v Thomas would be "bad" for the recording industry. Nope...Not in the least. If you were to attend a NARAS conference, you'd see from any of them that there is a strategy for nailing violators. This is just the set-up.
Second, artists have ZERO control over whether their label or RIAA, publisher, or sync licensor sues you. Artists as a *general* rule sign those rights away when they enter into a publishing agreement, even if the artist maintains their own publishing (very rare, but done). Metallica is a rare instance where they as a band are notified of illegal use, and in appropriate cases, they've knocked on the door of the offender and served him/her in person as a publicity stunt.
You may want to read what world-famous IP attorney Paul Tauger has to say on the matter. Tenenbaum had some of the greatest attorneys in the biz on his side, and all he did was merely upload illegal music (effecting illegal distribution).
Event videographers are illegally replicating, illegally distributing, illegally syncronizing, and when you post information such as this, you prove you know you're doing so.
Copyright violation is now civil AND criminal. Not either/or. Both. Always.
Tenenbaum used this exact same paragraph in the Code as part of his defense. And was hammered down promptly.
Thomas didn't use it in the original defense, but did use it in the District and Federal Courts of Appeal. And was slapped down hard by all justices. We'll see what the SCOTUS does, and it'll be a surprise if they'll even hear it. The RIAA is praying they will. Because once that final nail (having gone from District to SCOTUS), they can start prosecuting smaller fish. It's how the legal machine works.
A quick quote on Tenenbaum' from the District Court of Appeals; "
If the "I forgot which songs I infringed" defense doesn't work, there's always fair use. Tenenbaum goes on to explain the next layer of his defense, taking a rather novel view of the four fair use factors. In his words:
Those four criteria are non-binding. Those are just suggestions.
Response;
The statute itself is quite clear that a court's consideration of the four factors isn't a mere suggestion; it's mandatory: "the factors to be considered shall include..."(emphasis mine).
And the Supreme Court agrees, noting in Campbell v. Acuff-Rose:
Nor may the four statutory factors be treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright.
In other words, even if you meet one of the six criteria for Fair Use (event videography meets none of them), the remaining four tests ALSO must be met in part or whole. Again, event video doesn't meet this criteria.
For what it's worth, I'm a strong proponent of copyright law reform, and do believe the copyright model as it exists today is archaic and fundamentally flawed in today's digital world. I'm doing what I can inside the industry to help change the model. I wish I had a short-use license for songs, even though I'm a songwriter/recording artist by profession. With over 500 registered works, it's in my best interest to protect AND promote them for licensing.
But I'm not willing to steal (and certainly not willing to boast of it) in the process so that I can make money on the backs of the artists that worked so very hard to deserve to be heard. You get paid for your work; so should they. Because their work makes your work look better. Because they own what you're stealing. Because someone else paid the freight to create what you've taken unto yourself. Most importantly, because it's the right thing to do.
Back to point; the question you should be asking yourself is if you can afford a criminal or civil judgement for illegal replication, distribution, sync, and mechanicals. If the answer is "no," then you might want to reexamine your methods.
Having spoken with Joel Tenenbaum at a conference earlier this year, he's still reeling from the impact of a 1.92million dollar judgement over only seven songs (when he'd admitted to uploading/downloading hundreds if not thousands).
I'm an very, very experienced skydiver. I'm cautious and conservative. A landing incident will never happen to me. 4 months and 400,000.00 later...I learned I was wrong.
I understand human nature is to say "It'll never happen to me."
Are you truly willing to risk your livelihood, home, business, on "it hasn't happened yet, and won't happen to me?"
Douglas Spotted Eagle
Author, producer, composer
www.vasst.com
"I enjoy music, long walks at sunset on the beach, and poking dead things with a sharp stick."
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