Posting unlicensed music video in password-protected gallery

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Posting unlicensed music video in password-protected gallery

Postby danuah » Fri Apr 27, 2012 7:02 pm

Hi,

I am just getting started in the slideshow business and recently ran a fan page give-away on Facebook to promote my business.

The woman who won the give-away is located in another state, so she plans to send me a CD with all of her images. The show will be for her daughter's high school graduation.

I told her that if I post the slideshow on my site, I have to use licensed music. I did, however, offer to purchase iTunes music for her if she signs a form stating that she owns the rights to it and that it is for personal use only. (This is what I was told by another slideshow biz owner that I should do.)

Now she's asking if there are any websites on the internet where she can upload her video and only allow friends and family to view it.

First, I know there's Vimeo, SmugMug, and other sites (maybe YouTube as well?) where you can privatize your videos, but I don't know if you can still upload a show with unlicensed music if it's only for family and friends to view.

I really want to be able to offer her an option where her family in other parts of the country can view her video. Can she use the web with what she wants to do or would she have to purchase copies and mail them? I hate to make this too difficult for her, but I know I'm going to get lots more of these same questions.

What do you advise?

Thanks!

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Re: Posting unlicensed music video in password-protected gallery

Postby DickK » Fri Apr 27, 2012 8:53 pm

I told her that if I post the slideshow on my site, I have to use licensed music. I did, however, offer to purchase iTunes music for her if she signs a form stating that she owns the rights to it and that it is for personal use only. (This is what I was told by another slideshow biz owner that I should do.)


Taking a legalistic view, that's not correct and could cause trouble for you. By you making the purchase she holds no rights to the music at all and you hold insufficient rights unless you license it for this use and just purchasing it isn't sufficient.
More info here: viewtopic.php?f=8&t=8758

As described in the post linked above, if a customer supplies the music and asserts (as part of your contract) that they hold appropriate rights, then you may (or may not) be off the hook if challenged legally--depends on the language of your contract, how the judge is feeling that day and how good your lawyer is.

As a pragmatic matter things like this rarely get to a court. Typically it simply means that the site where it gets posted removes it and notifies the poster that the music must be removed. Legally however, the rights holder has the right to enforce their rights in court, and that could theoretically be ugly for you, but it doesn't seem to happen very often. The first step there is normally a cease-and-desist order to the customer and, maybe, you too.

You and they may not like the answer but the only 100% legal path here is that you use music you have the rights for and can document that fact. Anything else runs some level of risk for them and/or you--it may be trivial or it may not be. Pragmatically speaking, if the slide show never gets public exposure, the rights infringement is still there but the holder never learns of it so there's no action.

Wish there were a nice easy answer but if there is one, it's remarkably well hidden.
Dick

Caveat: This information is the opinion of it's author and does not constitute legal advice of any kind. Risk associated with the use or misuse of this information is entirely the responsibility of the reader. If these issues are important to you, consult an intellectual property rights attorney.
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Re: Posting unlicensed music video in password-protected gallery

Postby danuah » Sun Apr 29, 2012 4:43 pm

Thanks for your response.

Well, let me ask: what do folks normally do if they want to post a slideshow on the web for friends and family only? My client is looking into setting up a Vimeo account and making her video private, only allowing her family in other states (and possibly a couple of friends) to view the graduation video.

I was told by a very experienced slideshow business owner that the odds of staying in business using only royalty-free music are slim. People have memories and sentimental reasons why they want to use popular music in their videos. I realize there is a risk there, so I'm trying to find a middle ground by privatizing the video.

I guess my choice is whether to be completely hard core about the music licensing or to try to find some middle ground that meets the client's needs without running a huge risk to either myself or the client.

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Re: Posting unlicensed music video in password-protected gallery

Postby MG - Admin » Sun Apr 29, 2012 6:29 pm

The difficult answer is that if you use music without the proper licensing in a commercially produced product you are in violation regardless of how that show is viewed going forward. Even if it only gets played once in your client's living room and then gets destroyed it's a violation without the proper licensing. The same goes for a show that is done as a gift for a friend. We all know that getting caught is probably a minimal risk, but it doesn't change the fact that you are violating copyright. Only you can decide if you want that risk.

Do you have your own web site? As a business owner I would expect you to, but not everyone does. You could always upload the show to a page on your web site and make it password protected so only yourself and your clients would have access to it. Unless you put your site on an extremely limited hosting plan you should be able to create as many private pages as you would need to satisfy your clients' needs. Create the show, upload it to your private page, email the link and password info to your client and you're all set.

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Re: Posting unlicensed music video in password-protected gallery

Postby gpsmikey » Sun Apr 29, 2012 6:31 pm

While I understand the desire to use popular music for the slideshow (and I understand where the statement about only using royalty free music was coming from), my personal preference would be to NOT have an encounter with one of the music industry attorneys (who have no concept of "middle ground"). The good news with the internet is you can show a slideshow etc to a friend on the other side of the planet instantly. The bad news is that there is some serious money being spent searching web sites for "unlicensed / unauthorized music use". There was also a thread recently where a number of legitimate royalty free music creators were being stomped on by these folks that were grabbing music from the people that created it, claiming it for their own then going after people for "copyright infringement" (see the recent threads here about YouTube blocking videos they claimed had illegal music when in reality it was authorized music). And I'm not even in it for the money - I'm not selling anything. Anyway, those are my thoughts on it - you decide what works for you (you might also want to search the forum here and read the threads on music copyright and royalty free music - there has been some good information posted)

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Re: Posting unlicensed music video in password-protected gallery

Postby DickK » Sun Apr 29, 2012 8:25 pm

Please be careful and clear about this: you have no basis to judge what if any legal liability you are incurring.

If you're going to do what you're contemplating, I suggest you consult an attorney. Get a legal opinion and have the language in whatever contract you use reviewed. That will cost you a non-trivial amount of money but without that you don't have any basis for deciding how much, if any, risk you're taking.

Others can operate however they wish, they may be putting their business at risk, not be aware of the risk, not care or accept the risk. The usual practice is to use the contract to throw the responsibility for licensing back on the client. As we've said, that won't change the fact that, if they give you commercial music without the appropriate license terms, the slide show infringes the rights of the copyright holder, but it might (or might not) protect you. You (or the others) could be just fine 999 of 1000 times but one mistake and you may no longer have a business, just a pile of bills for legal services. Likely? No. Possible? Yes.

Under no circumstances should you tell your clients anything that is a statement about the legality of what they are doing or anything that might be interpreted as legal advice. That's the quickest way to create trouble for both of you.

Like I said before, you may not like the answer but it is, so far as I know, correct.

Dick

Caveat: This information is the opinion of it's author and does not constitute legal advice of any kind. Risk associated with the use or misuse of this information is entirely the responsibility of the reader. If these issues are important to you, consult an intellectual property rights attorney.
"It is the mark of an educated mind to be able to entertain a thought without accepting it." Aristotle ((PSG, PSE & Fuji HS20 user)) Presentation Impact Blog

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Re: Posting unlicensed music video in password-protected gallery

Postby Mac » Mon Apr 30, 2012 11:17 am

Out of the block, I have to say that the copyright law that controls music use is an absurdly draconian construct designed with the interests of very large record companies in mind. The fact that these people have, through the length of most of our lives, executed a system of music distribution that was designed to reach each and every one of us on a conscious and subconscious level. They deliberately used this system to ensure that as many of us as possible have a direct emotional attachment to the music, which becomes an inextricable part of our thought processes, how we associate and remember the events in our lives. They then turn around and lobby for laws that prevent us from using the data that they've insinuated into our minds. The only people who can use the data are those with vast sums of money. One can very easily imagine a system whereby little people like us can use the music as well, paying small, affordable licensing fees, but that would conflict with the huge licensing fees they get from television stations or large advertisers. The difference in bottom line is debatable, but they're too lazy and greedy to be bothered. They'd rather to continue to make their livings off the backs of decades-old data.

As for your use of music and the contracts that are routinely recommended: I don't care if your customers claim they own the music in the contract. IMO, any green attorney fresh out of law school should be able to demonstrate that a person who makes slideshows with images and music as a business knows full well that the client will NOT own the rights to the music. It's a crapshoot as mentioned above. The likelihood that you get caught is low, until the day comes that a record company attorney decides he wants to make an example of some unfortunate slideshow creator out there by hauling him/her into court for a ridiculous amount of "damages".

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