Who has knowledge of copyright laws?

[jbanghart]

A little back story.

My daughter is part of a theater group. Purely by accident I became the official videographer. It's really a lot of fun, I use four cameras and put it all together in Premier Pro. I've done 3 shows so far and for this last one I went in and shot a lot of footage of the rehearsals. Now I'm more technically inclined than artistically inclined, so I gave the footage to a friend of mine who is very artistic. He gave me back 3 short videos that were all incredibly cool.

However, on one of them he used a commercial song.

So I just left that one off the dvd I put together. But I've thought about this and it would be really nice to have this kind of thing on the dvd. So I thought I would post this here to see if I could get some comments.

One idea I had was to give the video away. Currently I charge $15 for the video, but I only take out the cost of the materials and give the rest to the theater group. Somebody mentioned to me that if the video was free then there was no copyright infringement. So, if I charged the group a set fee for the video service and they gave one video to each participant then it would be ok. I don't know about this, it seems like we would just be doing an endrun around the copyright and still be breaking the law.

2nd idea, was to buy the songs from itunes or napster or something. This is actually pretty small stuff, maybe 40 dvds at the most, so buying the same song 40 times wouldn't be that big of a deal. Then I figure I would hold onto the 40 licenses and if something ever came up that is what I would produce to show legal use. Would this be legal?

Thanks for any thoughts...

[setarip_old]

@jbanghart

Although I and/or others MAY have knowledge applicable to your question, I'd reiterate what I've said at this forum before:

1) This is a forum about converting videos and not a forum about law

2) This is an internationl forum - and laws (or the lack thereof) differ from country to country

3) When you post to and read from a forum, you have no way of knowing who you're REALLY dealing with. Anyone can claim to be anything. Do you want to risk making a legal decision based on the statement of what may actually be a 12 year old claiming to be a patent attorney?

[Video Dude]

Since you live in Cali,

If you want to legaly distribute the video with music, you have to get permission from the copyright holder. In this case, the record company. It is actually a fairly common procedure, people do it all the time. I remember a number of years ago when my school produced a video yearbook they got permission to use commercial songs. It was a small fee and they had to place a credit at the end of the video.

Giving it away for free will still violate copyright law. I don't think the iTunes method will work either, as that is licensed for personal use.

[Doobie]

I'd call it de minimus or fair usage. And, I'd call the revenue "donations." It might not be fully legal in the age of corrupt copyright law, but I don't see the RIAA going after someone for distributing, without profit, a few copies of a school theater group which happens to have used a commercial song (it would be a mountain of bad PR).

It wouldn't do any good to actually buy the song from itunes. You still wouldn't have a licence to use the song the way you are using it.

[random asshat]

It might not be fully legal in the age of corrupt copyright law, but I don't see the RIAA going after someone for distributing, without profit, a few copies of a .

They've filed suit against 12 year old girls, and dead grandmothers.

My summary of your options:
Buy a licence, or engage in civil disobedience (and be prepared to accept the consequences thereof)

[Mug Funky]

hmm, when put that way the civil disobedience sounds like a good option :devil: let's all hang out at the beach and boil seawater down to salt! weeehaaa!

[random asshat]

I'm not advocating that anyone engage in a hunger strike, or the
wanton dumping of tea leaves.

U.S. Copyright law leaves some room for interpretion as to what
is acceptable use by 'sampling' or for 'purposes of parody' , but
the description seemed to imply a full length track being engaged
outside of the private residential context, so I think those might
be the choices.

/ IANAL

[olyteddy]

Who has knowledge of copyright laws?
AFAIK there are only three people in the entire universe who possess that knowledge, and they totally disagree with each other...:p

[adam]

There is actually no gray area here at all, and believe it or not your question as is has nothing to do with copyright law. When dealing with commercial music the underlying song is copyrighted and the physical production is protected by a separate copyright. The artist owns the former and the studio owns the latter. While the song itself can be sampled under Fair Use, and by that I mean you can reproduce it yourself or borrow elements from it, the specific production (what is physically on the CD) is NEVER going to be sold under anything other than a personal license which does not allow syncronization, which is the legal term for what you are doing. Whether you are using the entire song or just a few bars, If you want to "sync" you must obtain a sync license from the producer, period. This is a matter of contract not copyright law. Any version of this production that you can possibly obtain can only be had by contractually agreeing not to do exactly what you are doing. Fair Use simply does not apply. There are no exceptions, ever. To use a commercial musical work you need a sync license on the production and a master license for the work. For projects like you are doing its usually not that expensive to obtain both.

Now if you were to make your own recording of the song then you are dealing with Copyright Law and Fair Use could apply in some circumstances...but definitely not here. This is a well settled area of Copyright law. Fair Use does not permit syncing for commercial works. It may permit it for personal works but no case has ever held this to be so, because no one has ever been sued for this. It is likely that it would not even be permissible here due to the nature of syncing. (no transmutation, generally not crucial to meaning of work because usually any number of songs will do.)

Furthermore, the physical production that you recorded falls under section 110 which limits what you can do with any recordings of a public performance containing copyrighted material. Assuming this commercial song you used was actually used in the permformance itself, which could be permissible, you could only distribute it to students and for purposes of viewing it in a classroom environment. It would have to contain some sort of access restriction, and the audio source used would have to have come from an analogue source if one existed. So you see your situation is really going well beyond what is permissible under the public performance exception and Fair Use. Do a google search on the TEACH Act for more information.

To answer some of your questions, it doesn't matter how you structure the sale, you can say that money is going to this or that and that you are giving the works away but the court ignores this. Its called a peppercorn and is considered fraud on the court. The court will look to the intent of the parties. If any money is exchanged, even if it is just to recoup costs, then it is going to be a commercial work under Copyright law. As for purchasing individual licenses for each disc you sell, as someone mentioned that doesn't really accomplish anything because they are only personal use licenses. You still need a master license to do the syncing, and additionally a sync license if you use the studio's production.

Someone above mentioned the de minimus exception but this does not apply because legal de minimus only applies in Copyright law if the use is both ephemeral and non-commercial. His use is neither.

People do get sued for this kind of stuff and it ain't pretty. The worst part is that you could get the school in trouble. I don't know the relationship between the song you used and the performance, but generally with syncing there are usually plenty of options for music that would work just as well. See if you can't find some public domain music and if not then look into licensing costs. Don't risk it.

[MACC]

another route to go as far as music could be open source audio.

http://www.archive.org/details/opensource_audio
Make sure to read the lic. the audio is under.
More freedom in what you can do with it. Also don't
forget to mail the creator or composer of a work to ask about
the monies thing. That I do not know about.

[jbanghart]

Thanks to all that replied. Gave me a lot of stuff to look into and research. A special thanks to Adam, I appreciate all of the english, instead of legaleze you used. Gave me a lot better idea of what it is I need to do.

A couple of people mentioned that the cost of licensing these songs is relatively cheap at my level. Would anybody know what that might be? Ballpark is cool. I mean we charge $15 for these DVD's and then I just take out the cost of the media, case and mailing and turn the rest of the money over to the school.

Guess I'll go hit some websites and find out how much of this can be accomplished through email.

Thanks again.

[adam]

Prices are all over the map, but there is a whole slew of music that can be licensed for $50 a year, or alternatively $50 for X amount of units.

[BSpielbauer]

JBanghart:

I hesitate to even post this, but you may have another issue to think about.

I do not know what the video content consisted of that you shot -- you described it as footage gathered from rehearsals of a theatre group. I do not know if you are aware of this, but if that footage consisted of rehearsals for any copyrighted dramatic work which is not truly owned by the theatre company, then you may have additional concerns.

As a longtime stage director, I do know that all of the major works I have ever directed actually included strict prohibitions on any videotaping or audiotaping or filming of the work, whether it be in rehearsal or not. I know of four cases where small theater groups ended up with legal trouble over a simple videocamera recording a performance, or even a dress rehearsal, and where copies were then made available to cast and crew. One community theatre had to turn over all copies to the author's agent (Tams-Witmark), and promise never to repeat the incident. In a non-equity semi-professional group I was involved with (a riverboat dinner theater), the theater had to pay a fine for doing much the same thing. And, a local high school made the mistake of allowing a local cable company to broadcast a kids' production of "Grease" which had been shot with a camcorder by a parent. It played on a tiny local cable access channel, with no real publicity, a channel which probably was not viewed by anyone other than a few high schoolers and their families, since their are no real published schedules for these types of channels. Still, the high school was sued by Samuel French, the authors' agent; the director was sued by name; the parent was sued. The issue was settled out of court, with no fines paid, but attorneys were involved, and the case dragged on for four years of negotiating. The local news coverage was a bit of an embarrassment.

All of the cases I know of were in the US. All involved very small groups, and three of the cases I know of involved not for profit or non-profit groups. And, there was no profit motive in any of the cases, even the one where the local cable company (in ignorance) replayed a tape of a final dress rehearsal.

I have no idea of the length of these pieces of footage you shot, and whether anyone would consider this "fair use." I do not even know if the footage you shot consisted of rehearsals of copyrighted works - this might have been simple improvisational exercises, in which case you can forget I wrote any of this. I do know that the contract a theater enters into when they pay for the royalties for these plays always has strict prohibitions against any recording of the material whatsoever. Any.

Here is what the contract I have signed many times with a leading agent states:

"All Samuel French plays are protected by copyright laws and conventions. It is an infringement of copyright law to give a performance or reading of any such play or excerpt without the prior consent of Samuel French. It is also a violation of copyright law to copy part or all of a play by any means, including typewriter, photocopy, videotape or computers."

Again, I hesitate to be the bearer of bad news, and I am NOT trying to cause undue paranoia. And, I am not an attorney -- (although I played one once on TV).

Just a head's up...

Take care,

-Bruce

[feedback]

I am not sure if this is what you are looking for but it may give you some more info. to go on.

What Does the ASCAP License Do?

ASCAP gives you a license to entertain your customers, guests and employees with the world's largest musical repertory. One of the greatest advantages of the ASCAP license is that it give you the right to perform ANY or ALL of the millions of the musical works in our repertory. Whether your music is live, broadcast, transmitted or played via CD's or videos, your ASCAP license covers your performances. And with one license fee, ASCAP saves you the time, expense, and burden of contacting thousands of copyright owners.

I want to record or videotape a song or record. Do I need permission, and how do I obtain it?

If you want to make copies of, or re-record an existing record, tape or CD, you will probably need the permission of both the music publisher and the record label. A music publisher owns the song (that is, the words and music) and a record company owns the "sound recording" (that is, what you hear... the artist singing, the musicians playing, the entire production).

If you plan to hire your own musicians and singers and create an original recording of a copyrighted song, then you need the permission of only the music publisher.

ASCAP does not license recording rights. Recording rights for most publishers are represented by the Harry Fox Agency:

Harry Fox Agency, Inc.
711 Third Avenue
New York, N.Y. 10017
Tel: (212) 370-5330
Fax: (212) 953-2384
http://www.nmpa.org/hfa.html
The link to the above info. is Located Here. (http://www.ascap.com/licensing/licensingfaq.html)

Regards,

[BSpielbauer]

Jbanghart:

I took the following from another contract I just took from my files, this one is from Music Theater International (another of the leading agents which handles a lot major musicals in the US):

"Related Copyright Issues

The rights that MTI is able to grant under our contract with the author(s) are limited to "Grand Rights." Grand Rights cover the right to present the show, in its entirety, on stage. These rights do not include performance of a single song or medleys ("Small Rights"), videotaping, use of a logo or merchandising. In some instances, MTI has separately negotiated representation of additional rights, but those are administered on a show by show basis.

Small Rights
"Small Rights" is a term used to cover performances of individual songs in a concert or cabaret-type setting. There are three major agencies that control these rights: SESAC (Society of European Stage Authors and Composers), ASCAP (American Society of Composers, Author and Publishers), or BMI (Broadcast Music, Inc.). Depending upon the songs that are being performed, licenses may be required from one, two or all three of these organizations for a single presentation. Most schools, churches, restaurants and clubs pay an annual fee to obtain a "blanket license" from these licensing agencies that covers the "small rights" use of all music in their respective catalogues for the year. As a related topic, occasionally MTI is approached by a group looking to either a) create a revue based on a composer's body of work, or around a theme (i.e., "love songs") or b) take existing songs from shows and put them into a new dramatic context. Neither of these examples would be covered under a "small rights" license since their thematic nature or imposed story line would create what is considered a "dramatico-musical work" under Federal copyright law. Generally these types of requests must be denied due to the complex issues surrounding "merged works" (musicals where collaborators, estates, trustees, producers, etc. all share in the royalty pool).

Videotaping
Copyright law gives authors the exclusive right to control the reproduction of their work. When MTI grants a license for a live stage production of a show, that license does not include the right to tape it because the authors retain the sole right to decide when or if their work is recorded in any way. Even a videotape made for classroom use, as a personal memento or as an archival school record violates the authors' separate right to reproduce their work. In many cases, the authors have already granted such rights exclusively to film or television companies, in which case you would also be infringing upon the rights granted by the authors to a third party."

(Note from Bruce: Boldface added)

-Bruce

[loopyloops]

Thanks to all that replied. Gave me a lot of stuff to look into and research. A special thanks to Adam, I appreciate all of the english, instead of legaleze you used. Gave me a lot better idea of what it is I need to do.

A couple of people mentioned that the cost of licensing these songs is relatively cheap at my level. Would anybody know what that might be? Ballpark is cool. I mean we charge $15 for these DVD's and then I just take out the cost of the media, case and mailing and turn the rest of the money over to the school.

Guess I'll go hit some websites and find out how much of this can be accomplished through email.

Thanks again.


Yikes - lots of well intentioned but inaccurate info here!

One licenses rights to a song from a music publisher (not the artist, producer, whatever - though in some cases, they're one and the same).

The rights to a sound recording are licensed from the owner of the sound recording - in most cases, a record company if we're talking a commercial release.

Selling or giving away matter not - it's copyright, i.e. the right to copy - a right that can only be granted by the song's owner (or appointed admin.).

In the case of a film, you need a sync license - you also need to be granted each specific right that you need, i.e. the right to show the film theatrically, to distribute it on DVD, etc.

In some instances, folks who don't know the particular fate of their production or are looking for distribution, etc. get what's known as a festival license - which is considerably cheaper than a full blown big budget sync license - the catch being you can only exibit your film in festivals for a short period of time.

In an instance of where you intend only to make a few copys of something for friends, or to sell a few, whatever, it would prove very difficult to obtain a license from a music publisher or record company for obvious reasons.

If you want to record a song that's already been released at least once (there are 1st use laws that basicly say you, as the publisher, can allow/not allow/charge whatever), you can - no permission needed! There's a statutory mechanical rate - currently a little over 9 cents - that you must pay per unit manufactured and distributed (not sold!!!) and you're good to go. You do need a mechanical license - and HFA does represent tons 'o compositions - but nobody can stop you from releasing the song on a record as long as you follow the rules - like not messing with the words/music - you can do your own arrangement (which is then owned by the original copyright owner) like a reggae version of a disco classic or what have you, but no fussing around with the important stuff (there are exceptions where it's ok like parody, but that gets very, very trick - and funny doesn't make it parody)

And just so nobody gets the wrong impression, SESAC is actually an American company :-) Only connection to Europe is in the name.

Didn't mean to pluck this seemingly out of nowhere, but I was searching for something else and ran into the topic. If anyone has any questions related to copyright and music, feel free to ask. Don't, however, ask the person who said it was ok to steal music if you give the result of your theft away.

[mike_lee]

They have a system set up for the little guy and quite cheap, you buy clearance to sell 100, or 500 and it costs you a few cents per CD. But maybe the guy used program music or buy out music (which you can buy and therefore is legal) If you told me the song I could give you a better answer, if it's a song you never heard but it sounds like something famous it's likely buy out music, and you could always replace the famous song with a buy out sound alike.

But dude, do you have any idea how many thousands of CD are released every week made from karaoke tracks with no attempt at clearance. I was a recording engineer and recorded 100's of those and not once did anyone worry about getting a release.

. . notices the SESAC g-man directly overhead . . . ....not once did anyone worry about getting a release - disgusting isn't it? Those wicked, wicked people.!

[loopyloops]

They have a system set up for the little guy and quite cheap, you buy clearance to sell 100, or 500 and it costs you a few cents per CD. But maybe the guy used program music or buy out music (which you can buy and therefore is legal) If you told me the song I could give you a better answer, if it's a song you never heard but it sounds like something famous it's likely buy out music, and you could always replace the famous song with a buy out sound alike.

But dude, do you have any idea how many thousands of CD are released every week made from karaoke tracks with no attempt at clearance. I was a recording engineer and recorded 100's of those and not once did anyone worry about getting a release.

. . notices the SESAC g-man directly overhead . . . ....not once did anyone worry about getting a release - disgusting isn't it? Those wicked, wicked people.!


Interesting. What you do with the rules is your business - but knowing them is a great place to start.

[Lokean]

The best thing, if you really want to find out where you stand, is to consult a lawyer.

[loopyloops]

The best thing, if you really want to find out where you stand, is to consult a lawyer.

Not needed - and expensive. Plenty of accurate info out there and plenty of reputable clearance folks for higher if you need one for a production. As long as you're aware you can't use master/songs you don't control w/o licensing them you're pretty good to go - there are really no special exceptions.

[loopyloops]

Not needed - and expensive. Plenty of accurate info out there and plenty of reputable clearance folks for higher if you need one for a production. As long as you're aware you can't use master/songs you don't control w/o licensing them you're pretty good to go - there are really no special exceptions.


Also - btw - anything I say is related to the U.S. only - except for the fact that any wordwide rights you do acquire in the U.S. are just that - worldwide.

And though what Seralip_old says is certainly true, and not that you're going to do this as it's such a tiny project, but there are plenty of non-attorneys (most are not) that can be hired to do clearence for a project - and if you look at their list of credits, you'll know what you're dealing with. There are only really a handfull who are the main clearence folks in the business.


Btw, if anyone's interested Randall Wixen - a terrific human and wonderful music publisher - has created a very informative web site - and his book is terrific as well. Anyway, here's some insight into what's in the heads of rights holders vis a vis how not to clear music - http://www.wixenpolin.com/notclear.htm Of course Randall represents some of the most important writers in the business - Tom Petty, Neil Young, The Doors, so he can be as tough as he wants :-) Check out the rest of the site too - great info on fair use, etc.

[mike_lee]

Interesting. What you do with the rules is your business - but knowing them is a great place to start.

Of course I knew the rules, and hey you know what else I did. Sampled :-P

[loopyloops]

Of course I knew the rules, and hey you know what else I did. Sampled :-P

Well, as long as those songs remain unsuccessful, you'r probably ok.

[mike_lee]

Well, as long as those songs remain unsuccessful, you'r probably ok.

Some of them ended up unchanged on No Limit compilations, but most served as demos. But I'm just the recording engineer, clearance is the artist' problem.

What is implied here is everyone has to be so afraid of the music industry that everyone should view copyright infringement as a heinous crime equal to child molestation, but I have no sympathy for the record industry, if I d/l non-stop I could never approach the kind of dishonesty the average record label executive commits daily.

[loopyloops]

Some of them ended up unchanged on No Limit compilations, but most served as demos. But I'm just the recording engineer, clearance is the artist' problem.

What is implied here is everyone has to be so afraid of the music industry that everyone should view copyright infringement as a heinous crime equal to child molestation, but I have no sympathy for the record industry, if I d/l non-stop I could never approach the kind of dishonesty the average record label executive commits daily.


Too bad you feel that way. I'm a music publiher and make my living exploiting and protecting our copyrights. You don't need to have sympathy for the record industry to have respect for the owner and creators of songs and master - and it seems like you're part of the process.

No Limit - still active?

[loopyloops]

Too bad you feel that way. I'm a music publiher and make my living exploiting and protecting our copyrights. You don't need to have sympathy for the record industry to have respect for the owner and creators of songs and master - and it seems like you're part of the process.

No Limit - still active?

Also, the dishonest creeps aren't really the ones that get hurt by copyright infringement - they still make $500,000 a year plus bonuses, etc. Most folks in the music business are hard working and honest and are hurt.

[mike_lee]

Yes I, of all people, know that. But go to a concert and buy a CD and that equals the money an artist would actually earn from 1000 CD sales. (that figure is a guess, an artist gets about 50 cents for a CD you paid $17.00 for)

[loopyloops]

Yes I, of all people, know that. But go to a concert and buy a CD and that equals the money an artist would actually earn from 1000 CD sales. (that figure is a guess, an artist gets about 50 cents for a CD you paid $17.00 for)

No, much more. Let's say the artist is also the songwriter, they get approx. .75 for the songs (mechanical royalties - that's writer's and pub share together - if they've done a publishing deal, well they get a healthy 75% if that) and they get their artist's royalty - somewhere around $1.50. Of course, many things are recouped from such earnings - like advance money they were given b4 they even sold a record, but whatever is recouped - recording expenses, etc., is what the artist agreed to in the first place.

Oh yeah, and the record company isn't getting 17 bucks - they sell to a distributor for much less who in turn sells to a store. And on most acts, they lose big time - their own fault to an extent, but they do.