Copyright For Video Producers

by Hal | Mar 30, 2009 | Articles, Business of Video | 34 comments

MY VOICE, MY CHOICE -SOME BASIC COPYRIGHT CAVEATS

Copyright. – The mere word calls forth difficult emotions ranging from artists screaming at fans for downloading illegal MP3’s from a peer 2 peer to dignified white collar workers vociferously defending their right to use media that they assume they’ve bought and paid for.

What is copyright? Quite literally; the right to copy. No one has a right to copy anything tangible that they didn’t create unless they’ve been given specific license to do so, generally by the author and partners in a copyrighted work without regard to it being a print, sound recording, or video recorded work unless it falls into a specific category of Fair Use.

The Constitution of the United States points to protecting sciences and the arts in Article I, Section 8, clause 8, indicating that protection from unauthorized copying of creative works is something our forefathers had considered. If only they’d had the foresight to understand digital media, because as technology has moved forward in the past 200 years, it’s created a mess of laws and an even bigger mess from editors that claim to be ‘in the know.’ Most professional musicians, editors, and videographers are clueless as to the width, breadth, and depth of current copyright laws, but some are taking notice, since the passage of the Digital Millenium Copyright Act as the new Act has tremendous impact on digital rights management, the copying and use of digital media, and copyright in general.

The Constitution of the United States Article I, Section 8, clause 8; To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries; As a reasonably successful artist, I’m constantly walking a tightrope because as an artist I wish protection for my musical works. As a videographer/editor I often want to have access to musical works that are not affordable, accessible, or sometimes even possible. I do know that it’s the single biggest issue to face the video and audio world in the coming years. I usually express the meaning of copyright with the phrase My Voice, My Choice in that the author, composer, creator of the copyrighted work is expressing their artistic voice in the process, and should always have the choice as to where that work is displayed or heard.

In the visual world, music plays a huge role in the creative process. In fact, I’ve often been heard to say that audio is 70% of the visual experience and music certainly plays a big role in that statement. But it’s often seemingly difficult to access the audio tracks that editors believe would make the video more appealing.

With the music industry in a serious economic crunch a new revenue stream has been discovered; ferreting out and suing copyright violators. This is certainly not limited to MP3 pirates sharing music over a peer to peer network. It’s come down to wedding videographers being fined, along with high schools that have done video yearbooks for sale being fined for improper and illegal use of copyrighted media.

Understand that when you buy a CD, DVD, or other recorded media form, you don’t own anything except a shiny silver disk or container (mechanical device) that holds the copyrighted work. The music, video, spoken word, text, software, graphic illustration, or whatever electronic media contained in the mechanical device remains the property of it’s creator and their partners. You have a permission to view/listen/enjoy the contents of the mechanical device. You do not own anything of value, and do not have the right to duplicate/replicate the contents in any form except in specific instances.

Here are some commonly heard comments from videographers/editors in various forums that I hope some of these answers address:

I can’t find the copyright holder for an obscure song. Since the artist is an unknown, I can probably get away with using it.

FALSE. In today’s world of universal access, you’ll find someone, somewhere, that has heard that song and will know the composer of that song, guaranteed. This usually is the source of violators getting caught.

Finding copyright holders has never been easier. The Library of Congress site has on-line searching available, and will display the name of the copyright holder for that person. Figure 1 shows a search I performed under my own name, starting at the https://catalog.loc.gov/ Page. Figure 2 shows one of several pages of results, including copyright date, and information about who registered the copyright on my behalf. (I’m glad I checked, I found a music publisher that had made an error in a recent registration) Many licenses may be obtained through the services of a Harry Fox Agency if all else fails. Unauthorized use of any copyrighted work exposes you, your company, and your client to legal action whether you can find the copyright holder or not.

Figure 2

If the music is from a bar that pays ASCAP or BMI, I can leave it in the background of my video.

FALSE. If the music constitutes any organized or significant element of the video work, and the work is not documentary or news-gathering in nature, you may not leave

ancillary background music in a video feature, unless the music is of a significant difference in level, ie; you are doing an interview with someone in a bar, and the music is not heard at a level that would be considered near the volume level or importance of the dialog and the music cannot be removed from the video recording without jeopardizing the dialog. If the project is a feature for instance, it’s expected that the director/producer has control over the audio heard in the background. Regardless, to use music from a tavern or social hall that pays ASCAP, BMI, or SESAC licensing fees, is a violation of copyright laws because the tavern/social hall does not have a sync license to synchronize video with the audio, nor is their license to play the audio transferable to a third party. Paying ASCAP/BMI/SESAC fees on your own does not grant a sync license to synchronize video with audio.

With that in mind, Library of Congress Folklore archivist has suggested that for older recordings, (pre-1956 & not registered w/LOC) sending a certified letter to the families of the recording artist and receiving it returned unsigned for or opened, might demonstrate that you’ve exercised best efforts in reaching a copyright holder. While this doesn’t qualify as permission, it does seem to be reasonable. An attorney recommended to me that if this course was taken, that royalties for the family or relative of the recording artist be held in account for a period of 7 years.

The artist should be happy, I’m letting other people hear his/her song, and maybe they’ll go buy the CD. It’s like free advertising. How can the artist complain about that?

The artist has certain rights to control where and when their music is heard. You don’t have any rights because you didn’t create the work. Imagine my own personal surprise when I was scanning HBO one night, and heard my own music playing in the background of an orgy scene of a show called Real Sex . I was incensed. Artists must possess the right to maintain a certain level of control over their works. This cuts both ways, incidentally.

Think of this in terms of your children. You have specific rights of control. A teacher in the school is also granted certain rights with regard to your child but you as the parent (copyright

holder) can restrict the teacher at any moment in time.

Only one thing is impossible for God: to find any sense in any copyright law on the planet….. Whenever a copyright law is to be made or altered, then the idiots assemble. — Mark Twain,

Mark Twain’s Notebook, –May 23, 1903

The song didn’t have a copyrighted symbol on it, or I recorded it at a festival where the artist just ad-libbed it and created the song extemporaneously.

Well first, you’ve just created a record of the creation of the song. If this happened after April 1, 1989, then there is no requirement for the copyright symbol, the work is technically copyrighted the moment it’s embodied in a tangible form of expression. You rendered it tangible by recording the work. Even if it’s just lyrics scribbled on a napkin or posted in a web forum, the courts have found repeatedly this is copyrighted material.

If I was given the music by the person whom I’m doing the work for, I’m just in the middle and doing what they tell me to do. I’m indemnified. I even have them sign a paper that says I’m indemnified.

FALSE. This is somewhat like a driver saying, “The bank robber signed a piece of paper that said if we get caught, I’m just an innocent bystander and it’s his responsibility.” In the first place, having a client sign such a paper shows that you are at the least peripherally aware of the laws, and have tried to circumvent your responsibility. That won’t help and might hurt you in a legal forum. Second, if you are party to illegal copying in any way, you can be held liable. 1989 Basic Books, Inc. v. Kinko’s Graphics Corp Fonovisa v Cherry Auction.

I’m not charging any money for the work I’m doing, it’s for my church. Even when it’s broadcast, it’s serving God, and I receive nothing but blessings for my work. Well Ihope that God can provide a good attorney for you. Regardless of whether money changes hands or not, donative, remunerative, or free, it is a violation of the law to use copyrighted works. Damages can be determined based on the impact of the use of the work. For instance, if you used a song from “Jars of Clay“ in your Mormon musical video presentation, and “Jars of Clay” didn’t want to be associated with the Mormon Community and further it was found that the use of their song may have had negative impact on Jars of Clay record sales in the Christian community, the fines would be stiff and swift. The same would hold true if a Baptist church program synced Eminem’s* music to an anti-cursing video. Or if a Satanic church synced the Mormon Tabernacle Choir* to visual hate messages. All could potentially be found to be commercially impinging, not just technically damaging. And could incur stiff fines. I don’t mean to be disrespectful, but many people seem to be of the opinion that if the work is for religious value, then ‘no harm, no foul.’ The law doesn’t look at issues this way. It is also worth noting that churches, like other institutions, receive special dispensation with regards to use.
What is a De Minimis issue?

De minimis non curat lex is a popular concept thrown around by defenders of copyright abuse, meaning that the abuse is so meaningless and trivial that it’s not worth defending the legal stand that gives light to the abuse. De Minimus generally applies in situations where, for instance, you go to the local TGI Fridays, and you sing Happy Birthday to your birthday child. This song is protected by copyright, owned by

Warner. However, since the song is not being recorded, not being broadcast, and not being performed at a cost to Warner, nor is it devaluing the song, it would probably be considered a De Minimus issue. Some would claim that the loss of revenue, value, or compensation to a copyright holder whose rights have been violated by someone syncing copyrighted works to a video work would be De Minimis. Searches of CNI and Nexus don’t provide any case law to back this up, suggesting that it’s probably another urban myth. De minimis non curat lex means that the law doesn’t concern itself with insignificance.

I bought a copy of Norah Jones* CD, and I want to play it on my Rio MP3 player. My neighbor says I can do this.

TRUE. You do have certain rights of fair use to make a personal, backup copy for playback on a personal listening device such as a computer, WalkmanÂ©, or a personal digital player. You do not have the right to make more than one personal backup, or share a backup with a friend.

I’m doing an educational presentation for other teachers in my school. I want to use a Marilyn Manson* song in my presentation to talk about how values have changed

in society. Is this legal?

In most cases, yes. If the presentation is a free, one-time, in person, non-broadcast educational seminar that will not be recorded nor shared, then it is covered under Fair Use statues. Certain civic and social institutions, and many government institutions all enjoy this benefit. The key words are: free, one-time, in person, non-broadcast,

educational. If you peripherally or definitely don’t fit those key descriptions, call an attorney for guidance.

It’s just a wedding, it never goes on the air, it’s just a few copies, so it’s legal, right?

FALSE. Using music from any copyrighted source is illegal without specific permissions. Simply because it’s not aired does not mean it’s legal. While the court would probably not find against a bride or groom that had their best friend shoot the wedding, and then they edited their own wedding to their favorite songs for their own viewing and made a few copies for friends, they have and will find against a wedding videographer that syncs video to copyrighted works and makes a dozen copies for the family of the happy couple, whether the editor profits or not.

Using copyrighted music for a video violates several copyright laws. Sync licenses, Mechanical/Compulsory licenses, performance licenses are all huge issues when they are avoided by an amateur videographer making a wedding or event video. George Thoroughgood* is my next door neighbor. He said I could use “Bad to the Bone” in my race car video that I’m showing at the community center. Too bad. Apparently George doesn’t know copyright law. While he may have written the song, he does not hold copyright to the performance that he recorded. EMI, the record company does, via their publishing company. George receives royalties from them for any sync licenses issued via their publishing company.

If George were ignorant enough to give you written permission and you acted upon it, both he and you would likely be found liable for violating the rights of EMI and any other interested parties to the song. Artists give up a certain amount of control of their music in most instances, in return for which they receive mass distribution, promotion, airplay, advance funds, and other remunerations. The record company and publisher, which are not always one and the same, receive some of the rights around the song in exchange for these services. Even if George holds 100% of the publishing on his song (which would be rare) he still more than likely has administrative agreements with someone, somewhere, who manages his copyrighted works. Often, these agreements are for around 15% of the total licensing revenue. If you copy his work and show it in a public forum, you are risking a lot. Even with his written permission.

I’m an editor hired to do a piece of work for a client. I shot the footage, I edited the footage, but the client tells me I can’t use the footage in my demo reel. Does he have the right to prevent me from using the video I shot and edited? What about Voice-Overs, or music compositions?

Yes. The client can prevent you from showing footage created in a work for hire agreement. You shot it on his nickel, you edited it on his nickel, he owns the footage lock, stock, and barrel. You must specifically ask for the right to use the footage before using it in a demo reel. With that in mind, the contract must specify those 3 words, Work For Hire. The client owns all copyrights, and may not be willing to grant shared copyright to Works For Hire. (I surely wouldn’t, either) You can request a specific, demo reel license from the client, that grants you the right to XXX seconds or scenes, or other specified use for a demo reel. We’ve done a lot of work for HBO, Disney, etc, but our contracts with these companies specify we cannot use the works for hire in our demo reels without specific permission. No matter what the work, if you are a Work For Higher contractor, you cannot use the creative elements or finished product developed for the client if the client will not permit it. This is why you rarely see works from major motion pictures as parts of articles, tutorials, etc.

I have a recording of Bach’s* Fugue in Gminor. There is no copyright on the song, so I guess I’m OK using it, right? Does Public Domain apply here?

WRONG. The song itself may not be copyrighted but the recording of the song certainly is copyrighted by the performance group. You must seek permission from the person

legally responsible for the group. Now, if you wish to record your own performance of Bach’s Fugue in Gminor, you not only may do so without concern for copyright, but you’ve just generated a copyrightable work of your own, that no one else may use without your permission. Public domain applies to the original work, yes. But a print copy, recorded copy are covered under copyright law to benefit whomever performed the recorded work or whomever

transcribed the printed work.

Keep in mind, the orchestration, arrangement, and print of the work that you play/read from is probably also copyrighted, although in many instances of public domain songs, a basic version of the work has been allowed to float in print form. Further, if you were to find a simple form that was copyrighted and you made a derivative arrangement and orchestration of the original transcription, chances are that it would fall into the category of De Minimis.

My daughter’s Girl Scout troop is doing a cookie sale in the local mall. There is copyrighted music playing in the background on the mall’s Muzak system. Do I need to worry about it when I shoot a video of my daughter and post it on the web?

This is a trick question. If the music is only ancillary and incidental, and not heard as part of the video, but merely ”˜noise’ in the background, you might be OK. As a matter of law, this is an infringement so consult an attorney before streaming this. If you cut the video in time to the music, and the music is heard clearly so as to constitute a perceptible, substantial part of the work, then you are more than likely in violation. You certainly couldn’t copy your work in this instance and post it to the web; not only could the performance issue bite you, so could sync, patent and other issues.

I’m doing a run and gun interview of a skateboarder and Three Doors Down* was giving a concert while I interviewed and shot footage of this kid. You can hear their music in the background while he’s speaking, and while he’s on the half-pipe. What do I need to worry about?

First, during the interview, you need to worry about nothing, as it’s ancillary/incidental music. But while he’s not speaking, while he’s performing in the half-pipe, you’d best find some royalty free, needle-drop, original, or other legal music form to replace the background audio.

Boundary, n. In political geography, an imaginary line between two nations, separating the imaginary rights of one from the imaginary rights of the other. — Ambrose Bierce, –The Devil’s Dictionary, 1911

I want to have a spinning newspaper effect like the one in Batman or Superman. Is it possible to just use my morning paper?

Absolutely not. Newspapers are copyrighted just like anything else, and they are vociferous in protecting their copyrights. While you might not get caught, it’s a lot less risky to open up Quark â„¢ , InDesign â„¢ , or Pagemaker â„¢ , to create your own newspaper look with your own headlines.

We’re having a party for our corporate executive at Big Monster Soda Company, and we wanted to stream it to all our locations worldwide. It’s his birthday, will there be a problem if we sing “Happy Birthday?”

Yes. The traditional melody (not the words) of “Happy Birthday” is copyrighted, and may not be transmitted, recorded, or performed publicly without a royalty paid.

This is why you hear all the unique versions of the song performed at restaurants. And from past history, the folks that own the song will come after you for performing the traditional melody in a recorded or broadcast work. Make up your own version just for him that avoids the traditional melody.

I’m only using a short section of the song to create my work. I’ve been told I can use up to 10% of a song without fear of violation of copyright because of Fair Use laws.

FALSE. This 10% concept is a complete myth. No portion of a copyrighted work may be used for public broadcast, duplication, corporate work, weddings, whatever. In fact, if you just

took the single bar of “50 Ways to Leave Your Lover” which is a very identifiable drum riff, you’d be in violation. And likely to get caught. Create your own ”˜near’ version, being careful that it’s not close enough to be considered a derivative work. If it falls under Fair Use, that may be a different story, but if it’s in the above described works, it most likely doesn’t.

Record companies should create a database where I could pay a flat fee for use of a song in my works. I’d pay a hundred

A poet creates verse; the paper which materializes the issuance, the hundred thousand copies where they are reproduced, could possibly be the property of an individual, of a thousand or one hundred thousand, but what is not possible to appropriate, are the verses themselves: each one has the capacity to recognize them with his intellect, and the possibility to reproduce them by reciting them, by writing them down.

Augustin Charles Renouard, Les Droits d’Auteurs dans la LittÃ©rature, les Sciences et les

Beaux-Arts (1838) bucks or so to use a song. They’d make more money, the artist gets advertising, everyone is happy and profitable.

This is a huge open market. The management of copyrights is undoubtedly a treasure trove for the attorneys that figure it all out. But currently, the admin costs to issue a sync license, not to mention governing the number of copies allowed in the sync license, plus the shares in the license are prohibitive for a blanket, low fee. Just to have an attorney look at a sync request could cost upwards of 500.00 for an hour of time. (I don’t agree with this, but it’s the way the law has organized the process. Don’t blame just the record companies or artists) Add to that the

artists share, record company share, publishing share coupled with potential market impact, mechanical royalties, and performance royalties, and the average Joe Editor is out of the game due to costs.

I found a karaoke tape of Madonna’s* song, “You’ll See.” I want to have my daughter perform the song on a DVD for my company.

Don’t. First, the performed karaoke recording is copyrighted. Second, the publishing rights of the song will nail you for violation. Third, the sync issue from both parties can create a serious mess. Besides, I hear Madonna is tough on copyright violators and pirates.

I have some old VHS movies that are copyrighted. They are wearing out and I don’t watch VHS much any more. Is it legal for me to copy them to DVD?

Yes, so long as the copy is a one-time, personal copy. You may not edit the movie, you may not duplicate the movie for the benefit of others. You may not decrypt the movie. You are required to destroy the original video cassette unless it’s kept for archival purposes, but frankly, I suspect non-destruction would fall into the category of de minimus. In fact, it’s likely that (since you are probably an editor if you are reading this) that color correction, progressive scan conversion, and other general image improvements would not be held as illegal in a home environment. This would be akin to adding or removing bass, treble to a CD on a home stereo. Copying a VHS to DVD or CD is known as space-shifting and space-shifting was upheld in a

decision against the RIAA involving Diamond Multimedia in 1999. However, if decryption is involved in the ripping or shifting of storage location, this is a violation of the DMCA. It has not been determined yet if this is illegal at the consumer level, but the two cases thus tried have upheld the illegality of decryption and transcoding at the commercial level.

Who benefits from Fair Use?

You do. Society does. Specifically, Fair Use can never apply to a commercial venture of any kind. Fair Use provisions are in place to provide access and public display for

purposes of:

Criticism
Education
Commentary
News Reporting
Scholarship
Research
Parody

This doesn’t mean that you can use “Thank God it’s Friday” as the theme song for your high school yearbook that you sell to the student body for costs or give away to students at taxpayer or school fee expense. It also does NOT allow the showing of Lord of the Rings as a Friday bonus to classes that have done well in their schoolwork. In fact, the law is specific on this particular issue. Showing copyrighted video for purposes of entertainment at church or

school functions, whether admission was paid or not, is illegal.

It DOES mean that if I want to duplicate and stream a small section of a song for purposes of demonstrating my point in this article, I can do so as it’s part of commentary. It also means that if I want to stream a selection of Marilyn Manson’s* lyrics to demonstrate how dirty words can now be heard on public airwaves, I can do so as a criticism, news report, or commentary.

Fair Use also permits schools to record news shows such as CNN and other news reporting broadcasts but the recordings are only permitted for 10 days following the broadcast. Without specific permission, recordings must be erased 10 school days following the broadcast.

(Some educational shows such as School House Rock offer enlightened rights that allow for up to 3 years archival. Professional Librarians are trained to be aware of these laws and will erase tapes accordingly )

Fair Use is an extremely complex maze, but the predominant intent of Fair Use is to allow for social benefit of the masses without impinging on the rights of the copyright holder. Fair Use in itself is a monster novel in it’s presentation, so only the slight surface descripion is mentioned here. Fair Use almost never applies in a corporate, wedding, documentary, or feature film setting.

There are some extreme circumstances in which Fair Use might allow for use of copyrighted works in a commercial project; I recommend seeing an attorney before ever moving ahead on assumption. You’ll most likely find that the expense of the attorney outweighs the value of the answer. Be sure you consult a copyright counselor. Copyright lawyers/intellectual properties

attorneys are a different breed, and they won’t shoot from the hip like many mainstream attorneys.

Ok, so I can’t use this stuff without a license or a Fair Use exemption. So what is a license? What do they mean, and who gets the money? What do the licenses cover?

Here are some licensing terms that you’ll likely run across, and maybe one or two you haven’t heard of or thought about. The funds for a license are shared in various percentages by interested parties in the copyrighted work. Artists, publishers, labels, sidemen, producers, distributors…a bunch of people might have their hand in the pot when all is said and done. The issuance of a license from an interested party covers your use of the copyrighted work, and is essentially a specified, pre-determined permission to use the copyrighted work.

If you cannot protect what you own, you don’t own anything. — Jack Valenti, 2002

Performance-The actual master recording, which you hear on the radio, receives a royalty from said on-air, packaged, or other delivery format. In other words, every time that song is heard somewhere it receives a small royalty be it from ASCAP, BMI, SESAC, or other organization.

Mechanical-Any mechanical device which embodies a performance, shall pay a royalty to the copyright holder. This is compulsory, and is determined in rate by an act of Congress. Hard drives, CD’s, VHS tapes, DV tapes, LP’s, cassettes, DVD’s, Mini-disks, Flash Memory, RAMdisks, etc all are subject to this royalty by law. Currently at statutory rates, it’s

about 4 cents per 3 minute song on a 10 song collection/album, after admin fees are

extracted. (usually 15%) This is paid to the copyright holder regardless of who recorded

the song. For instance the Lennon/McCartney tune “Yesterday” has been recorded by over 200 different artists. Each of those 200 artists pay a mechanical license fee to the publishing company assigned the administrative responsibilities by Lennon/McCartney. Don’t you wish you

wrote THAT song?

Publishing-If I record a song written by another artist, then I not only pay mechanicals, but most likely will have to pay a publishing royalty. For instance, it’s not at all inconceivable that Dolly Parton* made more money on “I will Always Love You” than Whitney Houston* did,

depending on the pub deal that is in place on that recording. Parton wrote the song and recorded it, but Houston took it from a mere hit to a smash industry-altering mega hit in “The Bodyguard.” Which brings us to the next license.

Sync/Synchronization-This license permits the synchronizing of copyrighted or non-copyrighted images to copyrighted music. If you use “Saturday Night’s Alright for Fighting” as an underscore for your boxing video without paying a license fee, then you are in violation of denying sync licenses in addition to other licenses. There are times where even public domain works require a sync license, depending on where the original media stemmed from.

Home Use-Just as the name implies, the video is for Home Use only, and may not be publicly broadcast or shown in a public setting. The majority of videos fall into this category. Any videotape or DVD bought at the local video store will likely fall into this category.

Public Presentation-Again as the name implies, a license to display the video in a public setting such as broadcast, school event, church event, or other public performance.

(this is a small demonstration of the sorts of licensing issues that can become involved, and hopefully explains part of the expense of administering copyright licenses)

Blanket fee

Typically used for musical selections. One who pays a blanket fee has permission to use the musical selection the fee covers in an unlimited number of released projects and videos.

So, copyright violations are civil, not criminal. Even if I get caught, what’s the worst they can do to me?

First, while copyright violations are indeed civil and not criminal, new laws allow criminal prosecution in cases where over 10 copies of protected material and/or 2500.00 was transacted in the process of copying. So, if you make 25 copies of a wedding video, and you were paid more than 2500.00 for the shooting, editing, and delivery of that wedding video, watch out. Most attorneys will admit that this law is more or less untested at lower levels but

it does exist and is a straw to be grasped by the copyright holder.

How long do copyrights last? Can I just wait for the copyright to expire and then use the copyrighted media?

Copyrighted works are generally protected for the life of the author plus seventy years, or in the case of works made for hire, ninety-five years from the date of first publication, or ninety five years from the year of its creation, whichever expires first. So, don’t wait up too long if the

work you want to use is fairly recent in nature. You’ll be well past grey by the time it’s available. The term used to be shorter, but the Sonny Bono Copyright Term Extension Act changed all this in

1998. You’ve noticed that the local drugstore has signs that say Cigarettes sold to those born before 1985 ? Similarly, due to the SBCTEA, the first year that all works enter public

domain will be 2019, when works from 1923 become PD, or Public Domain.

I shoot a lot of dance recitals and then sell the videos to the parents. The dance instructor has since informed me that her dance choreography is copyrighted and I can’t sell the videos without paying her a royalty and obtaining her permission. She says I’m covered for recording the music and I believe her because the dance studio has an ASCAP sticker on the window.

The dance instructor is right in saying that the dance choreography is copyrighted. She is wrong in saying that you are covered for the music because she pays ASCAP or BMI fees. ASCAP and BMI cannot and do not issue sync licenses. Unless the music being danced to is Work For Hire composition, you cannot make reproductions of the dance recital, period, without a sync license issued by the copyright holder or their representatives. (A hint; find the tempo/beat of the music, and using ACID, Soundtrack, or a non-linear editor that allows for beat marking, and insert a music ibrary song instead. Then both you and the dance instructor should be happy that you have a copyrightable product that does not violate the copyrights of others)

A student in the music class I teach plays in a band, and he has a song I want to use in my

video. He told me to go ahead and use it, that it’s not copyrighted, the band released their own private CD.

Does the CD list more writers than just the student in your music class? If so, the

student can’t actually give you permission. The music is copyrighted the moment it’s been used in a recording or other tangible form, and if he didn’t write the entire song himself, you could

potentially be in trouble from other band members. While they haven’t registered copyright, it still is existent. The question then becomes whether the band suffered any financial damages,

and since the answer relating to a local group of school children is ‘probably little damage,’ then they can force you to cease and desist, but likely wouldn’t be able to recover damages.

Artists have too many rights. I should be able to make copies of their works for my car, home, personal device, and for a few friends too, since we get together and enjoy music. The way the laws are currently written, I feel like I need to get permission just to change a frame around my paintings. I bought the CD, I should be able to sync it, or do whatever I want to with it. The artist got paid. Plus he gets paid for it being on the air. It’s not right that he gets paid more than once for use of the song.

Too many rights? For something they thought up and created? OK, first remove the term “intellectual” from intellectual properties. Replace it with “tangible.” So, you have a car, and your neighbor wants to borrow it. So, you give him permission once, does that mean that he can come over anytime he feels, take the car without permission, and drive it to wherever he chooses, perhaps denting or damaging the vehicle in the process? Without putting gas in it, or any other form of maintenance? Intellectual properties seem to be devalued simply because of the ease of access. You can sit in your home and download MP3’s all night long, and no one will catch you. But the moment you walk into 7-11 and start loading your pants with candy bars, you go to jail. There is no difference, except that one is a crime in your own home, the other is

a crime in public.

Artists deserve to be paid each time their work is used for something different than it’s original intent, or for each time it’s enjoyed in a public setting. Think of it as a rental. Because of radio, people have forgotten that someone has to pay for the music that’s played on the air. Revenue for radio stations is determined by advertising, from which a portion of the profits are split out to a performance rights group, and the artist is paid. While this paragraph delves into the world of opinion rather than fact or law it’s sensible and just. Are you willing to give up control over

your tangibles simply because you gave the neighbor permission once?

Finally, and most importantly in the case of those that would compare framed paintings to copyrights; a framed painting cannot be duplicated without reducing the integrity and power or scope of the work. It’s a one-shot, singular existence of an artistic expression. A CD, video,

or other electronically reproduced artistic work, may be duplicated without loss to the original integrity of the work. This is where artists rights come into play in a big way, because their works are licensed to be reproduced by others, and restricted for copying to the general public. By the way, if the frame is an integral part of the painting, it is indeed a violation of the artists copyright if you remove, destroy, or damage the frame or any other portion of the painting. The courts have upheld artist claims of copyright violation when a well-known artist (Chagall) has

created a frame as part of the artistic expression. Just because you bought the painting does not mean you have the right to alter it.

First known copyright-oriented legal document, 1710, the Statute of Anne

I’ve been told that ethnic recordings such as powwow drums, Call to Prayer , Amazonian chants, African chants, ceremonial songs are public domain because of their ancient nature and origin. Is this true?

Not at all. The song itself might be potentially public domain, but the singer(s) of the song that you recorded or ripped the music from have their own copyright to the performance. This is a common myth and one that’s gotten more than a few studios, including the big 3 studios in trouble. L:ike the Bach piece mentioned earlier in this article, the melody might be public domain, but the recording, performance, arrangement, and orchestration, if any, are all

copyrighted to the person(s) performing the work. For instance, some Native American reserves require that you stop in their tribal offices and get a permit to even take tourist photos or record video for personal use at a ceremonial event. Make sure you get a release, and make sure that the performer has the right to provide a release.

I have ACID or Soundtrack, and I want to make a new recording based on parts of other songs. Is this legal?

Usually not. It depends on what you took from the original songs. If it’s identifiable as coming from a particular song, it is absolutely a violation. It also may fall into the category of derivative work, which carries with it protections and benefits for both the new songwriter and the original songwriter. 10 years ago, this sort of ”˜sampling’ was a mess. But the dominance of

samplers and recording methods in the music industry for the past 15 years has settled this out, and there is a ton of case law and precedence to support original authors of works. In the case of Skyywalker v. Acuff-Rose Music, Inc., the Supreme Court found that in some cases, a sample of an original work fell into the realm of parody, as the sample did not take the heart of the original work and create a new ‘heart’ in a derivative work. Similar cases have not met with

similar success, but this case is worth noting if you get into trouble and your lawyer needs precedent. Then again, if your lawyer needs my assistance in case law, you better get another lawyer.

I’m in a cover band, do we need to pay ASCAP or BMI fees? I’ve been told we do.

Depends on the situation, but for the most part the law looks to the end venue benefit for licensing fees. So, if you play in a bar, the bar is required to pay ASCAP, BMI, or SESAC fees. If you perform in schools, they are not considered exempt and their license does not cover you. Even performing high school concert bands are required to have an ASCAP or BMI license.

So, how do I get music into my videos after you’ve scared me with all the legal stuff?

There are basically 4 levels that you can approach music for video.

Buyout or royalty free
library. Some of these come with use fees, where you can listen to a track for free, and even use as temp music, but you’ll have to pay a needledrop fee for each use of the song. Quality of sound and composition varies with price. One small hint, visit

www.acidplanet.com and listen to the musical works found there, ask the composer of the works to make a deal with you to use the song. There are some terrific songs up there. You might just find a great song and a willing artist.
Sonic Fire Pro. This is the next best thing to a buyout library. The only one designed specifically for video folks. No musical chops needed; just a video, a knowledge of f the length of the song, and the ability to insert pieces of pre-recorded compositions. Musical creative ability is more limited than say, looping software, but flavorful compositions abound with this tool. Zero royalty in use of this material. Compositional quality and sound quality are very good. To my knowledge, this is the only application of it’s sort. In some ways, better than a buyout, because it’s a buyout with no

royalty, but the ability to edit the music with ease.
Hired composition.

Hire a musician or learn to create/compose music on your own. This is harder than it sounds, but may be cheaper, and certainly allows for greater creative expression. This will probably take longer to achieve than the other options held above.

Being safe with your career, hobby, or passion is important. While fines for stealing or illegally using music rarely run above $20,000.00, the minimum fine is $500.00. Intentional misuse and/or abuse has often run over $100K. That could be a costly mistake for a dumb decision. No one can really control who hears or sees what’s out on the net, on a distributed DVD, or on a broadcast project. Playing safe is the only way to assure career life, an honorable reputation, and dignity. Right now copyright laws are entangled in a morass of mess due in part to the shortsightedness of the government and Congress, due to the millions of kids stealing MP3’s and software over peer to peers, the film and recording industry terrified to lose control over their protected works, and artists who want fans to have access, but they also rightly need to be compensated for their works. Once the lid is off the box, it’s off, and there is no stuffing the losses back in. So at the moment, every involved party is proceeding in a conservative manner, and understandably so when the billions of dollars and hundreds of thousands of jobs are considered.

I submit that in the near future, many of these legal issues will come to rest in a favorable manner for the average Joe to be able to have access. I don’t think and don’t agree with the average Joe having access to masters such as “I Will Always Love You,” because the average Joe doesn’t have the knowledge or equipment to make a video or film presentation worthy of the class, expense, and talent that went into the making of that song. Just like no videographer would consider matching stock footage from Titanic into his DV project because the two wouldn’t match, neither would the ascribed example.

There are basically 2 forms of liability in copyright law; Technical, which is pretty self explanatory. Did you do the deed or not… Fines are not nearly as severe or swift in a technical case. Then there is commercial liability, where the question is asked of how much damage has been done to the integrity or value of the work resulting from your technical violation. This is where the court can be really radical. From reading a couple hundred instances of case law, the bench runs the gamut from extremely conservative to extremely liberal across the States. The few Supreme Court decisions thus far, have always sided with the copyright holder.

Either way, whether you agree with the law or not, the law may be clear as mud but is enforceable. Determine for yourself if the risk is worth it, determine for yourself if your integrity will allow it, and determine for yourself if you want to set an example for others, that stealing or illegally using copyrighted works is acceptable. Blaiming Congress, or your friend the recording artist doesn’t excuse inexcusable behavior. Part of being a professional is being responsible for your decisions and actions. Most of what is presented here is basic common sense. If you have to ask or worry about copyright, chances are it’s a violation.

Regardless, I hope this small undertaking and sampling of copyright issue is of some value to you.

I’m not a copyright attorney, or an attorney at all. This article was vetted by a copyright attorney, still yet I bear no responsibility for any action you may take or not undertake based on

the information contained herein. Common sense dictates a disclaimer here; seek the services of a copyright attorney before acting on any of the questions or answers provided herein. This article is meant to be an informational guide, not gospel or legal advice. The information and citations you see here are worth exactly what you’ve paid for them

Happy Editing!

SPOT

As of this writing, the 321 Studio lawsuit has not been adjudicated. 321 Studios manufactures software that allows DVD’s to be copied and backed up for archival purposes. (DVDXCopy) It does contain copyright preventions, not allowing a copy of a copy to be made. Seven motion picture studios and 321 are battling this issue out in the courts of the world. 321 Studios lost their request for extension and exemption to the DCMA from the Library of Congress on October 28, 2003. They’ve appealed to the Librarian of Congress. Judge Susan Ilston of the Northern California District Federal Court is expected to provide a ruling shortly on the civil suit filed in California courts on August 29, 2003. When decided, this will be a landmark and precedent-setting case either for greater copyright protections or lesser copyright protections.

Either way, anytime anyone attempts to ‘sell’ you a ‘backup’ copy of something they copied under Fair Use, be aware you are buying stolen goods.

Microsoft’s Longhorn/Palladium OS/project will also bear a lot of scrutiny; it is a DRM (Digital Rights Management) tool among other services, that may well prevent artists from even having access to copy their own works. An extension of the .Net platform, this data-management

service has DRM written all over it.

The DGA vs Cleanflix/Familyflix (and many subsidiaries and similar businesses) is also still up for judgement; This company edits out curse words, nude scenes, graphic violence, etc from feature films and sells them to consumers as edited movies. Even R rated movies become G rated movies with their editing. The Directors Guild of America stand firm that this is a violation of their copyrights, as the works are clearly derivative works. Interesting that the DGA is also having to face down independent filmmakers such as notable Keith Merrill, who takes the position of families being able to control what is seen in a video in the home. The DGA position is basically, if you don’t want to see violence in a film like Braveheart then don’t rent or buy it. To interject personal opinion, I can’t agree with any artistic work being edited for content by anyone other than the artist. Look at what happened when it was determined that Bernini’s works were vulgar nearly 1500 years ago. We’re still wondering what his intentions were, artistically speaking, and the burning of the Alexandria Library set our world back by several centuries. The Constitution guarantees a copy right to the author of a film but does not guarantee a prevention of visual violence in your home contained in a movie you sought out and purchased. It’s always been a human understanding that you don’t go to the bad side of town after dark. It seems that the extension of the understanding is that you don’t invite part of the bad side of town into your home. At any time. My personal hope is that the DGA wipes the floor with these guys. Otherwise, we’re back to the burning of books that was so popular for a few weeks in the 1950’s. And 1920’s, and 1890’s, and so on clear back to AD391. Haven’t we learned yet, to be frightened of this sort of censorship? Is history to repeat itself in the digital age?

*The use of any artists name in this article is not to suggest any knowledge of real or imagined circumstance. The names are used only for illustrative purposes and bear no resemblance to reality.

MY VOICE, MY CHOICE -SOME BASIC COPYRIGHT CAVEATS

Instructor

Copyright. The mere word calls forth difficult emotions ranging from artists screaming at fans for downloading illegal MP3’s from a peer 2 peer to dignified white collar workers vociferously defending their right to use media that they assume they’ve bought and paid for.

The Constitution of the United States Article I, Section 8, clause 8; To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries; As a reasonably successful artist, I’m constantly walking a tightrope because as an artist I wish protection for my musical works. As a videographer/editor I often want to have access to musical works that are not affordable, accessible, or sometimes even possible. I do know that it’s the single biggest issue to face the video and audio world in the coming years. I usually express the meaning of copyright with the phrase “My Voice, My Choice” in that the author, composer, creator of the copyrighted work is expressing their artistic voice in the process, and should always have the choice as to where that work is displayed or heard.

Here are some commonly heard comments from videographers/editors in various forums that I hope some of these answers address:

I can’t find the copyright holder for an obscure song. Since the artist is an unknown, I can probably get away with using it.

Finding copyright holders has never been easier. The Library of Congress site has on-line searching available, and will display the name of the copyright holder for that person. Figure 1 shows a search I performed under my own name, starting at the https://catalog.loc.gov Page. Figure 2 shows one of several pages of results, including copyright date, and information about who registered the copyright on my behalf. (I’m glad I checked, I found a music publisher that had made an error in a recent registration) Many licenses may be obtained through the services of a Harry Fox Agency if all else fails. Unauthorized use of any copyrighted work exposes you, your company, and your client to legal action whether you can find the copyright holder or not.

Figure 2

If the music is from a bar that pays ASCAP or BMI, I can leave it in the background of my video.

FALSE. If the music constitutes any organized or significant element of the video work, and the work is not documentary or news-gathering in nature, you may not leave

With that in mind, the Library of Congress Folklore archivist has suggested that for older recordings, (pre-1956 & not registered w/LOC) sending a certified letter to the families of the recording artist and receiving it returned unsigned for or opened, might demonstrate that you’ve exercised best efforts in reaching a copyright holder. While this doesn’t qualify as permission, it does seem to be reasonable. An attorney recommended to me that if this course was taken, that royalties for the family or relative of the recording artist be held in account for a period of 7 years.

The artist should be happy, I’m letting other people hear his/her song, and maybe they’ll go buy the CD. It’s like free advertising. How can the artist complain about that?

Think of this in terms of your children. You have specific rights of control. A teacher in the school is also granted certain rights with regard to your child but you as the parent (copyright

holder) can restrict the teacher at any moment in time.

Only one thing is impossible for God: to find any sense in any copyright law on the planet….. Whenever a copyright law is to be made or altered, then the idiots assemble. — Mark Twain,

Mark Twain’s Notebook, –May 23, 1903

The song didn’t have a copyrighted symbol on it, or I recorded it at a festival where the artist just ad-libbed it and created the song extemporaneously.

I’m not charging any money for the work I’m doing, it’s for my church. Even when it’s broadcast, it’s serving God, and I receive nothing but blessings for my work. Well”¦.hope that God can provide a good attorney for you. Regardless of whether money changes hands or not, donative, remunerative, or free, it is a violation of the law to use copyrighted works. Damages can be determined based on the impact of the use of the work. For instance, if you used a song from “Jars of Clay*” in your Mormon musical video presentation, and “Jars of Clay” didn’t want to be associated with the Mormon Community and further it was found that the use of their song may have had negative impact on Jars of Clay record sales in the Christian community, the fines would be stiff and swift. The same would hold true if a Baptist church program synced Eminem’s* music to an anti-cursing video. Or if a Satanic church synced the Mormon Tabernacle Choir* to visual hate messages. All could potentially be found to be commercially impinging, not just technically damaging. And could incur stiff fines. I don’t mean to be disrespectful, but many people seem to be of the opinion that if the work is for religious value, then ‘no harm, no foul.’ The law doesn’t look at issues this way. It is also worth noting that churches, like other institutions, receive special dispensation with regards to use.
What is a De Minimis issue?

I bought a copy of Norah Jones* CD, and I want to play it on my Rio MP3 player. My neighbor says I can do this.

I’m doing an educational presentation for other teachers in my school. I want to use a Marilyn Manson* song in my presentation to talk about how values have changed

in society. Is this legal?

educational. If you peripherally or definitely don’t fit those key descriptions, call an attorney for guidance.

It’s just a wedding, it never goes on the air, it’s just a few copies, so it’s legal, right?

I have a recording of Bach’s* Fugue in Gminor. There is no copyright on the song, so I guess I’m OK using it, right? Does Public Domain apply here?

WRONG. The song itself may not be copyrighted but the recording of the song certainly is copyrighted by the performance group. You must seek permission from the person

transcribed the printed work.

I want to have a spinning newspaper effect like the one in Batman or Superman. Is it possible to just use my morning paper?

Yes. The traditional melody (not the words) of “Happy Birthday” is copyrighted, and may not be transmitted, recorded, or performed publicly without a royalty paid.

I’m only using a short section of the song to create my work. I’ve been told I can use up to 10% of a song without fear of violation of copyright because of Fair Use laws.

FALSE. This 10% concept is a complete myth. No portion of a copyrighted work may be used for public broadcast, duplication, corporate work, weddings, whatever. In fact, if you just

Record companies should create a database where I could pay a flat fee for use of a song in my works. I’d pay a hundred

Beaux-Arts (1838) bucks or so to use a song. They’d make more money, the artist gets advertising, everyone is happy and profitable.

I found a karaoke tape of Madonna’s* song, “You’ll See.” I want to have my daughter perform the song on a DVD for my company.

Don’t. First, the performed karaoke recording is copyrighted. Second, the publishing rights of the song will nail you for violation. Third, the sync issue from both parties can create

a serious mess. Besides, I hear Madonna is tough on copyright violators and pirates.

I have some old VHS movies that are copyrighted. They are wearing out and I don’t watch VHS much any more. Is it legal for me to copy them to DVD?

Who benefits from Fair Use?

You do. Society does. Specifically, Fair Use can never apply to a commercial venture of any kind. Fair Use provisions are in place to provide access and public display for

purposes of:

Criticism
Education
Commentary
News Reporting
Scholarship
Research
Parody