Commercial Music Usage Background Information Please

[David Roth weiss]

Dave,

You’re doing the right thing. While there are litterally millions of people who use other people’s copyrighted material as though it were their’s for the taking, its wrong and its illegal. Search the archives of this forum and you will find many, many discussions on this topic.

As Ron Lindeboom (the sometimes bull-headed head bull of the Creative Cow) has pointed out numerous times, copyright infringment can be very perilous to those doing the work for producers willing to take the risk, because ignorance of the law is no sheild, nor is following the instructions of an employer or higher-up.

David

David Roth Weiss
Director/Editor
David Weiss Productions, Inc.
Los Angeles

POST-PRODUCTION WITHOUT THE USUAL INSANITY

A forum host of Creative COW’s Business & Marketing, and Indie Film & Documentary forums.

[Del Holford]

Since we are covered by PBS’ agreement with ASCAP and BMI we can use whatever with mechanical and reproduction rights. But what does copyright law say about non-commercial use of commercial music? If the end user is non-broadcast how does he report? I’m not saying a user shouldn’t pay their due because I’m a strong advocate for paying the artist’s what they’re owed. Douglas Spotted Eagle recently did a paper on copyright law. I’ll dig that out and see if it addresses the issue.

Del
fire*, smoke*, photoshopCS3
Charlotte Public Television

[Del Holford]

https://www.videouniversity.com/copyright.htm
Here’s the article. HTH

Del
fire*, smoke*, photoshopCS3
Charlotte Public Television

[David Gerberding]

Many thanks for this link. It answers many of the questions I had. It (and other sources) is still a bit vague on a few fair use issues, but all in all very helpful.

[Walter Biscardi]

[RocklinDave] “It (and other sources) is still a bit vague on a few fair use issues, but all in all very helpful.”

Fair use really only applies to news stories and documentaries that are about the music itself, the composer or the singer. Even there, it’s not a black and white “yes you can use it for this story.” I remember at CNN very often we avoided music by Michael Jackson for example, even though we were doing a story about him and his music. We would ONLY use the music videos as they were released to us by the record label.

Wanting to use music in the background of a corporate video requires permission from a whole host of people from the artist, to the record label to the composer and often others. You have done the correct thing to protest this issue.

If this client insists on using this music, I would insist that they sign a release taking full responsibility for any legal action that occurs as a result of the use of said music and I would even float it by their supervisor if there is one. This document would show that you have raised the issue of improper use of the music and if any legal action was taken against your group, you could at least have written proof of this. It’s not failsafe, but it’s better that saying “I told them not to use that music” after the fact.

Walter Biscardi, Jr.
https://www.biscardicreative.com
HD Editorial & Animation for Broadcast and independent productions.

All Things Apple Podcast! https://cowcast.creativecow.net/all_things_apple/index.html

Read my blog! https://blogs.creativecow.net/WalterBiscardi

[Mark Suszko]

I work in a very similar government video job, and often have to deal with this kind of thing from first-time clients. They however completely understand once we explain things to them, and point out our huge library of cleared music on CD plus SmartSound and Several other music synthesis programs for generating original music. For the type of person who is especially persistent, I often volunteer to find or compose a “sound-alike” tune with a similar chord structure but enough variance to make it a separate and distinctive work. If all those steps fail, usually referring the person to their own agency’s legal affairs office to get a “permission slip” assures they never come back. 🙂

[David Gerberding]

Thanks for the suggestion.

To clarify: We own a good music library, and the client was informed of the possible legal issues, but told us “we’ve done this for years, and the developmentally disabled kids really need current songs with lyrics that they relate to them”. I understand their argument on an emotional level, but completely disagree on a legal level. We will be sending out 50 or 60 copies of this after a group presentation. Unfortunately, I am not in a position to have made the call, but I did make my position very clear before-the-fact. I probably should have put it in writing as well!

[Tim Wilson]

[walter biscardi] “Fair use really only applies to news stories and documentaries that are about the music itself, the composer or the singer. Even there, it’s not a black and white “yes you can use it for this story.””

Since the issues come up here all the dang time, from various perspectives, here are some of my very favorite web resources.

The Stanford Copyright and Fair Use Center has a heavily scholarly orientation, maybe moreso than you’ll find useful. But the coverage here is certainly exhaustive. https://fairuse.stanford.edu/

One of the coolest things about it is a free, digitized version of Stanford’s Lawrence Lessig, called Free Culture. He’s been a pioneer on rights in the electronic age from pretty much the beginning, and has fought vigorously against the rapidly diminishing rights that we have, both as creators and consumers of media. Gotta love this:

As more and more culture becomes digitized, more and more becomes controllable, even as laws are being toughened at the behest of the big media groups. What’s at stake is our freedom–freedom to create, freedom to build, and ultimately, freedom to imagine.

Like I said, you can download a free copy of the book with rights to reuse and remix for non-commercial purposes, so he’s putting his money where his mouth is.

If you’re going to get into a fight about rights, definitely better to know the real lay of the land. Even if you’re not a scholar, definitely a site worth checking out.

More oriented toward practice than legal underpinnings or broad social examples, the Center for Social Media at American University is amazing. They offer what they call “Fair Use and Free Speech Resources.” Note that they, like Lessig, equate the two. There’s a goodly pile of articles to support documentary filmmakig in particular, as well as one on “participatory video.” Again, well worth checking out. https://www.centerforsocialmedia.org/resources/fair_use/

Those who *do* want to use music in a fair use context should note that there’s not a lot of leeway here.

[Todd Terry]

“If this client insists on using this music, I would insist that they sign a release taking full responsibility for any legal action that occurs as a result of the use of said music and I would even float it by their supervisor if there is one.”

That’s a good idea in theory, but in practicality (if someone took you to court) it won’t hold up. It might show “good faith” but it does not actually release the producer from any liability. It’d be a bit akin to shoplifting, getting caught, but telling the cop “My buddy said it’s ok, he signed a note taking the blame.”

In some instances a signed “waiver” like that might actually hurt, because you can no longer “play dumb”… you now basically have paperwork saying that you fully know you shouldn’t be using the music.

T2

__________________________________
Todd Terry
Creative Director
Fantastic Plastic Entertainment, Inc.
fantasticplastic.com

[Doug Collins]