when the music copyright law may be over ruled

Discussion in 'Amateur Video Production' started by Brian, Apr 27, 2012.

  1. Brian

    Brian Guest

    Here's a situation that people might want to comment on.
    At the moment any copyright music heard in a video needs permission from
    the owner of the music.
    However there is a situation where there is music playing in the background
    when the video camera is recording. Does the copyright law apply to the
    background music?
    You can have situations when you are interviewing someone at an event with
    music playing in the background and you can't remove the music from the
    persons speech. Also a performer could be using music for his performance
    on stage such as an acrobat performer talking to the audience during his
    act.

    So are these situations an exception to the law when it comes to copyright
    music?
     
    Brian, Apr 27, 2012
    #1
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  2. Brian

    Mxsmanic Guest

    It depends. Music that is incidentally captured during the recording of a
    documentary video or video report is typically exempt from copyright
    protection under the "fair-use" provisions of U.S. copyright law (and the laws
    of some other countries). So if you are making a documentary, editorial, or
    journalistic video of something and there happens to be music in the
    background, you don't need any permission for that.

    If the video is a work of fiction, or advertising, or if the background music
    is not just accidentally in the video (if you record someone dancing to music
    that was chosen for the video, for example), then you need permission.
    These are generally considered fair use, and do not require permission.
    See above.

    Also, see this page, and check out part three:

    http://www.centerforsocialmedia.org...des/code-best-practices-fair-use-online-video
     
    Mxsmanic, Apr 27, 2012
    #2
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  3. Brian

    J. Clarke Guest

    Such situations may constitute "fair use", in the US anyway. Whether
    they do elsewhere I have no idea.

    You might find <http://www.centerforsocialmedia.org/fair-use/related-
    materials/codes/code-best-practices-fair-use-online-video> to be of
    interest.
     
    J. Clarke, Apr 27, 2012
    #3
  4. Brian

    Steve King Guest

    A few years ago there was on this newsgroup an extensive discussion of
    fair-use issues by a participant who is an attorney with a specialty in
    intelectual property law. (He was also an avid maker of personal travel
    videos. Paul something by name.) My recollection is that there were very
    few easy calls. I came away from that discussion with the commitment to
    myself to never, ever allow music, photographs, or video not of my own
    acquisition into my video projects without securing written permission from
    the copyright holder. Life is too short to worry about litagation that can
    be avoided. I point out that I make videos for hire and have clients to
    protect as well as myself. I might be less rigid if I were making family
    videos, such as of a grandaughter lip-synching to a popular record for a
    grammer school talent show, that would never see You Tube or any other
    Internet outlet. I haven't done it, but I suspect a Google search on "fair
    use" on this newsgroup as well as rec.video.production might turn up some
    interesting discussion.

    Steve King
     
    Steve King, Apr 27, 2012
    #4
  5. Paul Tauger?
    --DR
     
    David Ruether, Apr 27, 2012
    #5
  6. Brian

    Mxsmanic Guest

    That's easy to say, but it's not always practical. When you are shooting
    fiction or commercials on location and you have control over just about
    everything in the frame, it's a possibility. But if you are shooting a report
    or documentary, you have to deal with things in the frame or on the soundtrack
    that you cannot exclude. That's when you have to either take a calculated risk
    with fair use, or simply not make the video at all.
    So how do you manage to exclude all unlicensed sound and images? Do you get a
    release from everyone recognizable in the frame, and from every owner of
    property visible in the frame?
     
    Mxsmanic, Apr 27, 2012
    #6
  7. Brian

    Steve King Guest

    Good memory. That's correct.

    Steve
     
    Steve King, Apr 27, 2012
    #7
  8. Brian

    Brian Guest

    At some stage you will want to add music to your videos so do you buy
    licence free music, pay a musician to play music of his own, or try and get
    permission to use copyright music.

    If you want to go to the full extent of the law then copyright music should
    not be played in a public place. Often music is played at fairs and other
    events. Then there is a person listening to a song on the radio that can be
    heard at a public place. My point is that you can go too far with the law.
     
    Brian, Apr 28, 2012
    #8
  9. Brian

    Mxsmanic Guest

    I've used music on two or three of my small videos, and I've found that the
    easiest path for an amateur like me is to simply license royalty-free music.
    Royalty-free music isn't literally free, of course--the term simply means that
    you pay just one time for a license that lets you use the music over and over
    with very few limitations. There's a lot of nice, purpose-written background
    music out there that you can license for a few dollars if you need such music.

    However, I discovered that people preferred my small documentary videos (short
    travelogues) without music. Which is just fine with me, since that means that
    I don't have to pay for licensing.

    Paying for popular songs from major music labels is extremely expensive, well
    beyond the budget of most videographers. And it isn't necessarily just a
    one-time fee, either--it may be necessary contractually to track views or
    copies or whatever and pay royalties. And often the music label will just
    refuse permission, period, which is their prerogative.

    Paying for a custom score is even more expensive, and usually only Hollywood
    studios can afford it. BUt if you can find a good musician who's willing to
    compose and perform original music and license it too you, that might be
    useful.
    That depends on the circumstances and on the licensing.

    Stores that use music to attract customers have to pay royalties, directly or
    indirectly. Sometimes just playing the radio requires this as well, even
    though the radio stations have already paid performance royalties on each song
    they broadcast.
    Technically, they need a license. Not only for recorded music, but also for
    their own performances of any music that is still under copyright (such as
    sheet music).
    That's different. First, the radio station has already paid performance
    royalties for the song. Second, the person listening to the radio isn't
    actually trying to rebroadcast the song, and if it is audible to others,
    that's just incidental. So he doesn't need a license.
     
    Mxsmanic, Apr 28, 2012
    #9
  10. The latter issue has (pretty much....) been covered here, but
    for the former, there are other options. You can get software
    that composes "music" for you (with direction of parameters by
    you - and I've used this in some videos), you can play and
    mix simple pieces of your own (and I've used this in some
    videos), and there are various cheap musical instruments and
    programmable sounds for the iPad (including a simplified Moog
    synthesizer) that can be played and mixed with the above to
    make tracks (I'm using this technique for the track for my
    current video). In addition, you can record and mix ambient
    sounds or any of the above with or without spoken narrative
    or text over picture. Lotsa possibilities that do not run
    afoul of copyright laws...
    --DR
     
    David Ruether, Apr 28, 2012
    #10
  11. Brian

    mike Guest


    Brian and ushere are fortunate that they are from Australia which has
    a very progressive copyright law that doesn't treat videographers like
    criminals.
    http://www.apra-amcos.com.au/ gets into the various details.

    Mike
     
    mike, Apr 28, 2012
    #11
  12. Brian

    J. Clarke Guest

    Generally under an appropriate license for which fees are paid.
    Radio is also licensed use for which fees are paid.
    Yes, you can, but the two examples you use are not unlawful.
     
    J. Clarke, Apr 28, 2012
    #12
  13. Brian

    ushere Guest

    be careful mike - brian's from new zealand, and though most new
    zealanders live in bondi they're still under the impression their their
    own nation ;-)
     
    ushere, Apr 28, 2012
    #13
  14. Brian

    mike Guest

    Do I detect some friendly rivalry here? Kinda like Canada vs. USA
    where I live?
    :)

    Mike
     
    mike, Apr 29, 2012
    #14
  15. Brian

    Brian Guest

    Thanks David.
    Some good ideas. Do you know the name of the Moog app for the iPad?
    I also know that some musicians are waiting to be recognized for their
    talent so they offer music freely as long as you put their name in the
    credits.
    If music is copyright then usually youtube picks it up when it scans the
    audio track.
    In some cases a record company might allow the use of music if its only for
    personal use and not to gain money by selling the video. I'm tempted to try
    and get permission to see how far I get.

    In talking about playing music in a public place I bet schools don't get a
    license when children perform on stage for parents for the schools music
    class.
    But then that's for New Zealand and it's likely to be different for other
    countries.

    The crazy part is to license music in a video will cost more than the money
    you get for selling the video.
     
    Brian, Apr 29, 2012
    #15
  16. Brian

    Mutley Guest

    But there have been plenty of cases where the royalty police have
    taken companies to court for playing a radio in public saying that
    the company need a public performance license. I seem to remember a
    garage in the UK a couple of years ago this happen to them.
     
    Mutley, Apr 29, 2012
    #16
  17. Brian

    ushere Guest

    certainly - but would the last new zealander coming to bondi please turn
    out the lights when they leave...
     
    ushere, Apr 29, 2012
    #17
  18. Brian

    ushere Guest

    i've been using either

    versusmedia.com or freelancers.com - both places have musicians happy to
    write specifically for a piece, and at very reasonable prices.

    gave up with cinescore and stuff as it sounds too mechanical, am not
    good enough with acid (better on it;-)), my extensive needle-drop
    libraries are all sounding rather 'old' to me (familiarity breeds
    contempt?), and i like the variety of styles the above musicians can
    come up with...
     
    ushere, Apr 29, 2012
    #18
  19. Brian

    J. Clarke Guest

    UK broadcast is a whole different ball game from US broadcast.
     
    J. Clarke, Apr 29, 2012
    #19
  20. Brian

    Mxsmanic Guest

    In some jurisdictions, this is even explicitly allowed by law.

    However, uploading a video to YouTube is not personal use, it's distribution.
    So it requires a license.
    Most people never try to get permission, and probably miss occasions to
    actually get a license. While major music labels tend to be difficult, there
    are exceptions. Some of them will tell you in writing that specific uses are
    okay with them without the need to pay for anything. On rare occasions, they
    might grant you a license for a pittance. It just depends. Copyright holders
    are generally free to license or not license their work in any way they want,
    for any price they want.
    They probably don't ... but if they don't, they are generally infringing.

    And some schools know better. I recall my drama teacher in school almost being
    sued by an agency because she still had not paid for a license to perform the
    school play by the deadline (the school district finally did send them the
    necessary check before the first performance).
    In which case you may as well not use the music. But copyright holders also
    often know the potential of a given use, and adjust their licenses
    accordingly. If they know you can reasonably expect to make, say, $100,000
    with your use, then they'll charge you less than they would if they thought
    you were going to make $10,000,000 with your use.

    A famous case was the movie _Tarnation_, which started out as a personal
    project made by a single individual over a period of years. He never bothered
    to license any of the material he used. When the movie was "discovered" and
    started winning a few awards, all of a sudden the copyrights had to be cleared
    for distribution. He had spend a total of about $200 making it over several
    years, but the copyright clearance ultimately cost almost half a million
    dollars. It eventually made just barely enough to cover the cost of royalties.
     
    Mxsmanic, Apr 29, 2012
    #20
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