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Copyright and You
My Voice, My Choice
Some basic copyright caveats
By Douglas Spotted Eagle
Page 1 of 8
Feb. 13, 2004 -
Copyright. The mere word calls forth difficult emotions ranging from artists
screaming at fans for downloading illegal MP3's from a peer2peer 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. [an error occurred while processing this directive]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 (DMCA) of 1998,
as the new Act has tremendous impact on digital rights management, the
copying and use of digital media, and copyright in general. A new bill is
being proposed, the
Digital Media
Consumers Rights Act, (actually reintroduced) that may change some of
the parameters of the DMCA.
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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;
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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. |
My Voice, My Choice
Page 2 of 8
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
http://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.
[an error occurred while processing this directive]
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, 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 seven 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.
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"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
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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.
Source: ©2003 Douglas Spotted Eagle
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My Voice, My Choice
Page 3 of 8
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)[an error occurred while processing this directive]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.
(Worldwide Church of
God v Philadelphia Church of God)
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, Walkman©,
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.
Educational
institutions, 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.
My Voice, My Choice
Page 4 of 8
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. [an error occurred
while processing this directive]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?
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"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
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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.
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My Voice, My Choice
Page 5 of 8
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™, InDesign™,, or
Pagemaker™, to create your own newspaper look with your own headlines. [an
error occurred while processing this directive]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.
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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 Littérature, les Sciences et les Beaux-Arts" (1838)
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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 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.
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My Voice, My Choice
Page 6 of 8
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
[an error occurred while processing this directive]
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 three 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
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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.
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My Voice, My Choice
Page 7 of 8
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. [an error occurred while processing this directive]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 library 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.
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 Three studios in trouble.
Like 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.
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My Voice, My Choice
Page 8 of 8
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. Ten 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. [an error
occurred while processing this directive]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 four levels that you can approach music for video.
1. 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 or
www.soundtracklounge.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.
2. 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 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.
3. ACID® or
Soundtrack™. Sony’s ACID and
Apple’s Soundtrack tools allow compositions to be created from libraries of over
2 million sounds. A small amount of musical knowledge is helpful here, such as
knowledge that banjos and classical strings rarely go together, but then again,
it’s creatively free. Quality of sound is beyond compare or question, but the
compositional quality really depends on the user. ACID and Soundtrack are easily
the most-used compositional tools in the music industry today, but don’t require
a background in music to use. It’s like building a song with Lego™ blocks. A
loop is like a sentence, and then sentences are formed into paragraphs. Because
of the nature of the tools, all spelling, syntax, and grammatical errors are
repaired for you, if I may use the simile of a word processor. Both of these
tools will display full motion video during the creative process, and allow
music to be synced to markers on the timeline.
4. 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.
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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 two 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. Blaming 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
©2003
Douglas Spotted Eagle,
Sundance Media Group/VASST
Instructor
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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.
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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.
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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 1,500 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.
Source: ©2003 Douglas Spotted Eagle
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