Copyrights and Use of Music

[Mark_48]

I am doing wedding photography part time and lately I've been presenting the B&G with a "digital" slide show in VCD or SVCD format (may upgrade to DVD in the future). The software I'm using has the ability to add music in the form of a WAV or MP3 track along with the slide show.

I'm wondering about potential copyright infringement using music if it is used strictly to enhance a visual presentation. The gamut of music styles could range from traditional wedding music, classical, movie theme, or contemporary love songs. Some of these genres I suspect to be public domain, the others I don't know.

[IndyJeff]

Honestly your chances of being caught are slim but, if your are caught infringements begin at about $1200 and run up to $20,000 per infringement.

If the music is in the public domain, and be damn sure it is, your fine but, if the music is copyrighted then it is someone elses property and may not be used in a commercial venture without due compensation.

What would you do if a musician was using your photo for his album cover? You would want to be compensated too.

[mikesd]

Agree with Jeff on this one, the RIAA has been pretty nasty this past year because of peer to peer file sharing networks and thats not a phone call I want to receive. Heres some info on public domain music. http://www.pdinfo.com/

[Jyoti]

I'm an ASCAP and PRS member and I have to agree with Indy Jeff: it's unlikely you'll get caught but all you need is for one client to play the VCD to the wrong person and boom! They'll then try and establish how many copyrights you've infringed and that could add up.

My advice would be to commission original music yourself (and I'm not just saying that cos I'm a musician). I'm sure there are many musicians in your area who'd provide you with original music for a small fee. If not, you can find a lot of royalty-free music on the net, like the following link:

Stock Music (http://www.stock-music.com/)

Hope that helps!

[IndyJeff]

Joyti you will appreciate this probably more than most on here. Back in the mid 80's I was an ASCAP field agent. I went into a liquor store in Muncie Indiana on a routine use check. Of course they had 4 big speakers mounted in the corners playing the radio. I approached the guy behind the counter identified myself and asked if he was aware of ASCAP and copyright law. LOL He said of course he was, he was also a member of the musicians union and did a lot of studio work n Nashville, TN. We discussed copyrights and such and he had no clue that what the company he worked for was doing was in violation of the law.
He told me a story about one time when he was returning home from a week long session in Nashville and while traveling thru Louisville, Kentucky he heard one of his songs being played in conjunction with a commercial. He got home called ASCAP and they ran an investigation. Sure enough his music was being used for commercial purposes without his permission. ASCAP sued on his behalf as they do and the results...Judgement for the plaintiff in the amount of $23,000. Of course he ended up with if I remember correctly about $15,000 of that. He made the comment that he probably made more off of it than if he would have licensed it to them and it was a fluke that he was listening to their station while he passed thru town.

That is the thing about copyrighted music, you never know who will hear it and if they own or know who owns the rights......your up the river without a paddle.

Ever wonder why restaurants sing their own quarky version of Happy Birthday? It is an ASCAP song and a protected property. Altho I believe it might expore soon if not already.

[Jyoti]

That is the thing about copyrighted music, you never know who will hear it and if they own or know who owns the rights......your up the river without a paddle.

Heh... I've got a few stories like that of my own! A mate of mine, a young film-maker, got well and truly clobbered in a similar situation. He thought that since his film was 'arthouse' he was in some way magically exempt from licensing and copyright law. When he told me, I couldn't believe he hadn't got it all cleared! The amount I go on about it...

Now, if you're just bunging a bit of a song behind a slideshow to show to three mates, fair enough. But once you're using music in any commercial context, take extreme care. I know a lot of photographers are now giving away DVDs with backing music and I'm sure some will come a cropper of ASCAP / BMI / PRS / (insert local agency).

[IndyJeff]

I created a slideshow for the football teams head coach that I covered this year. He asked if I could add music too it. I told him sure but the cost would go from $0.00 to about $2,000 real quick. When I explained about the copyrights of the music he understood. In fact he made a comment about a musician using my photos in the same context to showcase his music and would I sue him? I said no, but I would send him a bill that would make his head spin and if he didn't pay it, I would turn the matter over to seven savage lawyers who wouldn't leave a scrap of meat on his bones. He laughed at that.


Joyti anytime you feel bored and want to pass on some of your copyright stories PM me. I love hearing of the tales of woe, so to speak. I got some stories about being an ASCAP field agent that will make your haiir stand up too.

[watermarkphotography]

Hey what if you provided the album or albums with the vcd, and on the vcd have it stated that it was sold with the original album? It would cost less than the fine, and you are promoting thier whole album. Just an idea. :confused:

[Jyoti]

Yep, that's a cool idea but if the photographer is still taking and using copyrighted music as part of a new work (in this case a commercial photo product), they're still infringing copyright.

It's the same as if I decided to broadcast my own radio station. Even if I used CDs which I personally owned, I would still need to pay the PRS for the broadcast. When you buy a CD, you don't buy unlimited rights to use the music in commercial ventures. That's a separate negotiation.

[Jyoti]

Joyti anytime you feel bored and want to pass on some of your copyright stories PM me. I love hearing of the tales of woe, so to speak. I got some stories about being an ASCAP field agent that will make your haiir stand up too.

Cheers, mate! Thanks for the invite!

[IndyJeff]

It's the same as if I decided to broadcast my own radio station. Even if I used CDs which I personally owned, I would still need to pay the PRS for the broadcast. When you buy a CD, you don't buy unlimited rights to use the music in commercial ventures. That's a separate negotiation.

Cd's, albums, tapes all of that is sold for private use. A radio station is licensed for the broadcasting of that copyrighted material but, the broadcast is considered for private use. Your fine listening in your car, at your house, at the beach wherever. It is a private use thing but, when you take that broadcast and use it in a commercial venture such as your store for the purposes of background music, it is no longer being broadcast as a private use but now has become a public performance of said material.

Justice Scalia is one of the few judges who found in a defendants favor in an ASCAP case. It was a small sandwich shop in Pittsburg. The guy had speakers mounted in the ceiling and was playing music from the radio, I believe it was. Anyway, his shop was 800 square feet. Justice Scalia came to a decision that this place was too small to justify the cost of Muzak or similar background services. He ruled that it would put an undue expense upon the business to hire such a service therefore the guy could continue to play the radio as at any given time the people who would hear that broadcast would be very minimal.
One of the few cases ASCAP ever lost. So, if you know anyone who owns a business and an ASCAP guy is asking for a license for the place to play the music, tell them to get it. If ASCAP files on you,your gonna lose. Ot was something like 99.98% successful when I worked for them at getting judgements in their favor.

[NEC1236]

Okay, here is a question, a friend of my daughter, ask her to make a slide show with her parents favorite song and pictures of her parents for their 30th anniversary. The friend supplied their pictures (some professionally done) and the mpg of the music. I put it all in imovie using the Ken Burn's filter and made a mini movie, burned it to DVD and GAVE it to them. If I had sold it to them, would I have infringed on the music and professionally made photography? They provided music and photo's they owned, I created a art piece from it. I think the lawyers would have a field day with that one?

[leony]

Copyright has nothing to do with use for profit. Apples and oranges.

If I buy a DVD movie, the disk itself comes with an implied permission for private viewing. You are allowed to sell the actual DVD or rent it, lease it, give it away, etc. Making a back-up copy for personal use is also not illigal.

BUT if you start making copies of it and distribute them to others, you're in trouble - regardless of whether you're selling the copies or giving them away for free.

Funny as it is, Copyright extends to derivative works. If you take a copyrighted song and use it in the movie, you need to obtain the permission because the movie now is a derived work from the song... get it?

Another point often missed is that ownership of the product doesn't mean copyright ownership. If you have a portrait done, and have a print of it, the print belongs to you - but you can't copy it because the copyright belongs to photographer who took the picture.

[Jyoti]

Hmmm... this could also get tricky because of international variations in copyright law.

I know the DMCA (http://anti-dmca.org/) in America is changing attitudes to copyright over there and I believe there's a storm building in Europe over the adoption of a similar framework across the EU (I saw an article about open source coders protesting the new proposals).

The most general rule I can think of is, if it's for your own personal use, then in most countries, you should be okay. But making a DVD / video featuring copyrighted pictures / music and selling or giving it away is a violation of copyright.

But, like I said, it all depends where you are. I'm sure other UK members will remember when our beloved record industry tried to ban taping music onto cassettes, even for our own personal consumption only. They wanted us all to go out and buy a cassette copy as well as vinyl. Hah! We didn't fall for that...

...we went out and bought the same records again on CD instead, a few years later...

...then DVD-A...

...then SACD...

:D

[NEC1236]

There is a artist in Alabama that is getting sued for painting and selling prints of Tiger Woods, so far the courts have gone in the artist favor. Tiger is taking it all the way to the Supreme court.

http://www.sidley.com/cyberlaw/features/jireh.asp

[IndyJeff]

Yeah NEC I am aware of that case and have somewhat followed it. The main focus of the artists arguement is that he is using Tigers along with others to depict the game, not the players.

This case could set a precedent either way it goes. If against the artist it will have a devasting effect on artists. If the other way famous atheltes will be getting exploited left and right.

[NEC1236]

I use to shoot concerts - now I can't
I use to shoot golf tournaments - now I can't
This year I went to a Food Festival and they would not let me in.
Kinda' stupid!

[IndyJeff]

I use to shoot concerts - now I can't
Blame the guys who take pictures then sell them illegally for that.
I use to shoot golf tournaments - now I can't
Probably the same deal, people selling golfers images, illegally.
This year I went to a Food Festival and they would not let me in.
Kinda' stupid!
Well I never heard of people selling illegal food shots but then not much surprises me anymore LOL


If ASCAP files on you,your gonna lose. It was something like 99.98% successful when I worked for them at getting judgements in their favor.

You think I was kidding about ASCAP suing and being so successful? Read the article HERE (http://biz.yahoo.com/bw/050124/245738_1.html)

[Longwatcher]

related to this,
I have been doing research to find out if I have "Fair use" or not for incidentally recording music which was playing on my CD player during a photo shoot. I had my XL-2 running to catch the interaction of the model with me the photographer in a documentary fashion.

The short form is I am 50/50 thinking of just deleting the sound altogether or not promoting the video, as there appears to be no case law supporting either side and with the leadership we have right now I don't hold any hope for changes in the law or rulings in my favor. I am kind of the opinion that there are certain aspects to current copyright law which are infringing on artistic production and creativity rather then the intended purpose which is to promote creativity. I really don't want to be a test case for an iffy area, where I support copyright, but also support fair use.

longer version:
- The music is loud enough that you can identify the music if you tried. for a couple of songs they would be easily recognizeable
- The cost of getting permission will apparently be in the millions (okay technically around $10k per song or about $100-120,000 if I am lucky)
- I would have to contact multiple agencies in multiple countries to get permissions (that's what I get for playing techno music)
- other then selecting which music would play in the machine it was on random so I had no fore knowledge of which song would pop up where.
- At no point in the final version of the video do I keep an entire version of a song (the longest segment is about 3 minutes and splits between songs)
- The music is there solely for the purpose of inspiring the model and me to produce better pictures, the mic just happens to also pick it up
- I have previously shot some videos, but rejected them because the music actually made it too hard to hear the conversation.
- The video is intended for commercial purposes as background material to the photos (thus I consider it a documentary of the session) Because, the value of the photo set is increased by having the background video and in turn by having the conversation/interaction between model and photographer.
- The music is part of the documented process of taking the pictures.
- Royalty free music won't do in the future, no inspiration there.

- if it were just a news program, I know I would be covered, but since it is only a documentary of the interaction between model and photographer it appears to be less clear. The same apparently holds for wedding photographers doing videographing and catching incidental music in the background. So far nobody has actually bothered them, but I am getting the impression it is only a matter of time. It is way more clear cut if you record the music over the top of the video, then you pay the piper and I think that is fair although I think the price for some is highly unreasonable.

I would like for there to be clear cut law and a easy, reasonable fee to pay to cover situations like this. There is currently neither. Time for an email to my represenative.

Lastly, I understand this may only be a problem in certain countries (like the US).

Just a problem and my research,

[leony]

http://www.vlany.org/

[Alexia]

Wow. Would ASCAP even come down on a store for employees that brought in a portable radio and listened to it while they worked?(Assuming restuarant, customer service, etc.) I guess IndyJeff means that the intent would have to be for commercial stuff. A local comic shop nearby plays music mostly because the employees want it.

[IndyJeff]

Alexia an employee bringing a portable radio is a personal use and not licensable by ASCAP. Now if that employee, or the business owner bought a stereo system and had speakers located to broadcast that music throughout the store then of course that would be a public performance of a copyrighted material and a license would be needed.

[lui-même]

What if the bride is coming with the song that I'll use for the slide show?
It will still be considered an infringement from my part?

[sbattey]

What if the bride is coming with the song that I'll use for the slide show?
It will still be considered an infringement from my part?

Could be...the riaa are douche bags.

Jasmine star wrote a blog post about music here: http://www.jasminestarblog.com/index.cfm?postID=1049&with-etiquette-licensed-music

She recommends a site called "with-etiquette" in the entry.

It isn't cheap but it is legal.

You need to tell your bride that you can't use unlicensed music, as most music is only licensed for use on a single device by a single user..

[kona77]

LOL, this has to be the thread with the biggest time gap between postings yet.

[RDKirk]

8. I'm interested in playing music in my restaurant or other business. I know that I need permission for live performances. Do I need permission if I am using only CD's, records, tapes, radio or TV?

Yes, you will need permission to play records or tapes in your establishment. Permission for radio and television transmissions in your business is not needed if the performance is by means of public communication of TV or radio transmissions by eating, drinking, retail or certain other establishments of a certain size which use a limited number of speakers or TVs, and if the reception is not further transmitted (for example, from one room to another) from the place in which it is received, and there is no admission charge.

http://www.ascap.com/licensing/licensingfaq.html

In the US, a photographer can play broadcast music for clients as long as the listening area is less than 2000 square feet, the music is not played through more than six speakers, and the music is not relayed or re-broadcast from the original broadcast device.

So there can be a radio playing (FM, Internet, whatever) in most studios, but not recorded music. The difference is that the radio station has already paid the license to play the music to the public and the law defines even retail outlets as being able to play the music under those particular limitations.

[RDKirk]

What if the bride is coming with the song that I'll use for the slide show?
It will still be considered an infringement from my part?

It absolutely will be. You need a sync license to use copyrighted music in a slide show, regardless how you came by the music.

Jasmine Star is wrong here, though:

Then, in late September, I couldn't shake the lingering questions I had regarding music rights and usage. I, of course, attributed music credit on each slideshow, but the area is, well, gray.

There isn't a darned thing gray about it--ASCAP or BMI lawyers will tell you that. That's a very clear law, and she was in breach of it.

[lui-même]

It could be bent. The law that is.
The law forbids commercial usage without proper license. The slide show could be given as a gift. What do you think?

[RDKirk]

It could be bent. The law that is.
The law forbids commercial usage without proper license. The slide show could be given as a gift. What do you think?

No, the law is quite clear on that as well. Non-profit use is still considered an infringement.

[PhotosGuy]

What if the bride is coming with the song that I'll use for the slide show?
It will still be considered an infringement from my part? Used to be that, if the owner of a music CD wanted it used for their slide show for their own personal viewing, it was OK to assemble the music on it. But it wasn't legal for that person to "publish" it by playing it for others.