Music copyrights and you, basics

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Music copyrights and you, basics

Postby DickK » Sat Aug 16, 2008 12:05 pm

This is in an issue which comes up many times so I've summarized the basics here. This is not complete if you're doing slideshows for hire. I'm not a lawyer and don't play one on TV but here's what I believe is true:

Issue: Using commercial, copyright-protected audio probably violates your license.
You may not have realized it, but when you purchased a CD or an online music file, what you purchased typically wasn't the music but the physical media (for a CD) and a license to do a few things with the music—mainly listen to it. One of the things you typically don't have the right to do is to incorporate that music into something else, i.e., create a "derivative work.". If creating a derivative work, like a video slideshow, violates the license, you could be subject to legal action.

Fix: Obtain a license for the purpose: creating a derivative, multimedia work.

Obstacle: Finding the entity holding the rights and obtaining an individual license for the purpose can be difficult-to-impossible. No single entity exists. The various entities aren't set up to handle lots of tiny license negotiations and they have no incentive to deal with you—until you violate the license and they can recover damages, there's insufficient money involved for them. Yep, classic Catch-22 stuff.


Issue: Online, public posting of your slideshow may violate terms of the license for the music.
One of the other things you probably don't have the right to do with the music is create a public performance unless you also negotiate for that right and perhaps pay a public performance fee (one type of royalty payment). Now whether posting your show online is a public performance is fuzzy and AFAIK untested in court.

Fix: If required, license it for public performance with or without fee.
Posting the slideshow may fall within the definition of public performance, so we're back to above: you need not only the right to create a derivative work, you also need the right to post it for public view—obstacle above applies and a new one may apply (below).


Issue: Publicly posting a slideshow at PhotoDex or anywhere else might be interpreted as illegally sharing the audio content.
Fix: This one is also fuzzy and, to my knowledge, is untested in court—yet. However, if people can download the show, they can download the audio, so that may violate the license provision that forbids distributing the music. Technically, the fix might be to allow viewing but prevent download/capture. Practically, that's difficult at best and probably not under your control once you post it. Getting the right to post the show & music might be difficult since you can't control who it's distributed to, or how widely.


So it's hopeless?
For using most commercial music—yes, if you're going to post a show to the net, sell it, or give it away. Done strictly for your own private use, you might or might not be legal, but your risk is probably low. Still it's probably best to find audio that is owned by someone who will grant the rights you need: to use the audio, or portions thereof, as part of a derivative, multimedia work which may be freely given away or sold for profit, and publicly performed. There may (or may not be) a fee for those rights, but I'd avoid per-use royalty fees if at all possible—i.e., look for royalty-free music with the explicitly granted rights you need.

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: Music copyrights and you, basics

Postby Jim Adams » Sun Aug 17, 2008 6:31 pm

With all that said, Dick. How does youtube get away with it ? Lawyers need to go no further than that site if they want to make an example of anyone. I don't think they'll even make it to Photodex.

Except for rare occurrences I won't take the chance and I'll continue to use "Royalty Free".

Don't, however, think that things will ease in time. Not too many artists will ever want to give up their rights and even fewer lawyers wouldn't want to take that battle all the way to the Supreme Court.

Jim

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Re: Music copyrights and you, basics

Postby DickK » Sun Aug 17, 2008 7:35 pm

Jim Adams wrote:With all that said, Dick. How does youtube get away with it ? Lawyers need to go no further than that site if they want to make an example of anyone.

Well maybe they won't since they're the subject of a lawsuit. But their defense (which has been tested and worked many times in the past) is that they're just a host for the information and not responsible for content and any infringement in the content. If they're rigorous in taking down content that is objected to by a rights holder they may be able to withstand the challenge but that's part of the issue, they are alleged to not be taking stuff down when told to do so. It will be interesting.

Jim Adams wrote:Except for rare occurrences I won't take the chance and I'll continue to use "Royalty Free".

Careful -- "royalty free" implies the content is copyright protected but the holder doesn't require payment for use (might require payment to buy it but not for use within the scope of the license). "Royalty Free" says nothing about how you are permitted to use the item. For that you need to look for specific terms and conditions of use, they're usually there somewhere. What you specifically need is permission to use in a derivative work (personally, I've never seen that standing alone) or more commonly, words that say you're free to use however you want, often that is then limited to non-commercial use. If you use the item in something that generates revenue in some fashion then you've violated that kind of license. This is a very common case for music, images or video clips found on-line and labeled as "royalty free". Commercial use often requires a different license and may or may not involve fees.

Now as a practical matter, if what you're doing is making a show for your own, private use then while you may be violating the license there's little way for the holder to know it and little incentive for them to enforce it. To be sure, they can enforce it and if they do, you'll lose. From what I've read, the typical first step is a 'cease and desist' nastygram from the desk of some corporate lawyer. And some companies and organizations are more aggressive than others in going after nuisance infringements--Disney, for instance, has a reputation for being very aggressive in protecting their property, especially the cartoon character trademarks.

Dick

Disclaimer: 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: Music copyrights and you, basics

Postby seektheburd » Sun Aug 17, 2008 7:47 pm

Hi Dick,
I just wanted to jump in here to say "Great Post" on a very sticky subject. Alot of useful information.
Just for my own peace of mind, I am much like Jim preferring to use royalty-free music if my work is to be displayed publicly.

Hugs,
Stephanie
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Re: Music copyrights and you, basics

Postby BarbaraC » Mon Aug 18, 2008 4:22 am

Easing matters is the fact that many musicians who've opted for Creative Commons licensing are quite approachable, something a number of people here at the forum have discovered. I've experienced this myself, and here's how I approached it in my communication with the musician: I told him exactly which of his music I wanted to use and HOW it would be used. In my case, it was a show for charity, and what he asked for was full credit in the show, including his contact information. I got what I wanted and he got what he wanted. When money is to made on a show, and if I were a person holding a CC license, I'd expect some remuneration. Wouldn't we all? It should be offered--probably as a percentage--and it absolutely must be made good on because, if it isn't, the word will spread, making such musicians less likely in the future to grant rights.

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Re: Music copyrights and you, basics

Postby hootowls » Tue Aug 19, 2008 5:14 pm

Dick -

THANK YOU!

This post is the best explanation of Copyrights that I have ever read.

I still don't like it.

Hootowls

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Re: Music copyrights and you, basics

Postby photoshowstudio » Mon Aug 25, 2008 12:12 pm

I like this explaination. I was wondering about the majority of the websites out there that have lists of songs for people to chose from. Aren't they breaking copyright rules? Also, they seem to all have a form they make their clients sign stating that if there is any copyright issue they are the responsibility of the orderer of the DVD and the company is not liable. What are your thoughts on that??

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Re: Music copyrights and you, basics

Postby DickK » Mon Aug 25, 2008 4:22 pm

photoshowstudio wrote:I like this explaination. I was wondering about the majority of the websites...

What kind of websites are you referring to? Ones doing slideshows? or...?
Dick
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Re: Music copyrights and you, basics

Postby photoshowstudio » Tue Aug 26, 2008 9:54 am

Yes. Most websites advertising memorial slideshows, or wedding slideshows, etc usually have a link to a list of songs to choose from.

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Re: Music copyrights and you, basics

Postby DickK » Tue Aug 26, 2008 8:26 pm

Then if they're legal they have obtained the appropriate rights and are paying the appropriate royalties (both, one or neither might be required depending on their source for the music). Certainly possible that they've done that--hope so for their sake because the alternative makes them pretty vulnerable to a suit or at least a "cease and desist" with a demand for certified destruction of infringing product. But, hey, what do I know--like I said, I'm not a lawyer and don't want to be one ;)
Dick
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Re: Music copyrights and you, basics

Postby sunnyinkona » Wed Aug 27, 2008 12:41 am

Aloha, New here and i think your all soooo awesome!
What if you want to use just a small snippit of a song?
Im having such a hard time weeding out all the royalty free sites music to find the right song does anybody know of a elevator music site that plays the song but buy somebody else, like the ones you hear in the grocery?
Many mahalos Angie

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Re: Music copyrights and you, basics

Postby DickK » Wed Aug 27, 2008 2:54 pm

Pragmatic issues aside, the legal issue isn't big vs. small it's more based on what you did with it. And the "elevator music" is copyright whoever performed it, and they paid a royalty to cover whatever the original was. And the company playing the music in the store is paying public performance royalties. (Assuming everyone is doing what they're supposed to.)

For strictly personal use the legal exposure is small but if you're doing this for public viewing or for sale the risk goes up.

Dick
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sunnyinkona

Re: Music copyrights and you, basics

Postby sunnyinkona » Fri Aug 29, 2008 12:02 pm

Hey Thanks for the repy
Sticky Icky how very frustrating I just cant imagine the big shots going after a school DVD? I know the risk but has anyone ever been challenged or has heard of anyone (small time-100 dvds max) ?
The chance is so very tempting.
Mahalo Angie

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Re: Music copyrights and you, basics

Postby tjdowning » Sat Aug 30, 2008 5:21 am

This is probably the stickiest topic with our shows and one of the most "confusing."

If you go to one of the websites who can make you shows, under the music they usually have that you must give them the original CD's due to copyright laws. But am I understanding that this is not right either? And if so, wouldn't these businesses be the first ones to get caught?

So.....if you make a show for viewing at a wedding and do not charge, you are in violation of the music copyright
rules if you use downloaded songs or from CD's.????? I would understand more if you charged for these to make a profit, but come on, how can this be a problem???

My daughter said a coworker made a slideshow for their church and GAVE away copies to whoever wanted them. Somehow he got turned in and was fined and spent 3 months in jail. Is this for real????!!!!! Something is definately wrong here.

We all need to make sure all those recording artists have bigger homes and more cars and more money since they all really look like they are hurting. :lol:

Just my 2 cents worth.
-Terri

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Re: Music copyrights and you, basics

Postby BarbaraC » Sat Aug 30, 2008 6:20 am

Not every recording artist is a big fat cat, and in most cases, they aren't, but in the end, does it really make a difference from whom we steal? Is it less a crime to rob from the rich than it is the poor?

Whether or not a person makes a profit through the use of someone else's music is not the key to whether or not the act is legal. To use what belongs to someone else without permission is theft.

We tend to look at musicians as being the bad guys here, but if there's any bad guy at all in the industry, it's likely to be the signing corporation. Even there, even if that corporation is greedy and mean beyond endurance, it's still stealing to take what doesn't in any way belong to us.

But it's annoying, isn't it? It makes what we do extremely difficult, and that difficulty leads us into petty theft. The use of Creative Commons licensing is becoming bigger and bigger, many of the musicians perfectly willing to deal directly with people like us. I believe this method of doing business will only grow as time goes on and as musicians get out from under the hungry paws of corporate beasts. It's back to the roots of this country, back to the individual entrepreneur. It's something to be encouraged, not stolen from.

Barbara
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