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Commercial Music Usage Background Information Please
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I admit that I’m no lawyer, but I would disagree here. If someone hires me to create a video with copyrighted material, as a for-hire artist I am not violating the law by including that song. THEY are violating the law by distributing the work. It’s not against the law to mix a song into a video, it’s illegal to distribute that work in a commercial capacity, which the production company is not doing in this case since they are merely creating a video at the request of the client as a for-hire artist. Remember the four benchmarks against which these issues are weighed – commercial use, affect on market value etc. None of these issues are raised when creating a video for a single entity – what they do with it is another matter and is not your legal concern.
I would also add that a good contract should make it very clear that copyrighted material will only be used at the client’s request, and as such they assume all legal responsibility for the inclusion of such materials. While contracts do not provide legal cover for violating the law, such inclusions do show that it is the client, not you, that has chosen to use the material.
To me the bottom line is quite simple – in copyright violation cases the copyright owner will be going after whoever distributes the work, not the person who created it, simply because there isn’t sufficient cause to pursue a for-hire artist, nor sufficient damages to justify a lawsuit. In terms of your aversion to even risk it, I agree that it is better to be safe than sorry, but this is one issue I think should be weighed on a case-by-case basis, not an absolute rule.
Brendan Coots
Splitvision Digital
http://www.splitvisiondigital.com -
Quote: ” I admit that I’m no lawyer, but I would disagree here. If someone hires me to create a video with copyrighted material, as a for-hire artist I am not violating the law by including that song.”
This sentence is about 50% correct.:-)
The fine point missed is, you took money to perform that work. That kicks it into a different arena. A home hobbyist making video mix tapes and sharing them with family with no exchange of money is different from a guy who charges money to take known copyrighted material and incorporate all or part of it into another creative work without a rights clearance.
If you have a family depending on your income, you should be careful in the risks you expose yourself to. As I said, likely? Probably not. Safe? Absolutely not.
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Mark is completely correct on this Brendan and those of us with things to lose (houses, bank accounts, etc.) are best to avoid any activities which put them at risk. Even when you prevail in our legal system, once legal fees and lost productivity are factored in you can still be a HUGE loser.
What I ESPECIALLY think is brilliant is Mark’s idea: “… referring the person to their own agency’s legal affairs office to get a “permission slip” assures they never come back. 🙂 Not just in governmental organizations like Marks, this should work in corporate, too. Just say, “Sure, no problem. Just get me a note from your lawyer saying that this is OK.”
Of course some of us who are in business would prefer that the client does come back and not off on an endless search for the ever illusive legal “permission slip.”
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[beenyweenies] “If someone hires me to create a video with copyrighted material, as a for-hire artist I am not violating the law by including that song.”
If being hired to perform illegal jobs offered protection from the law, there’d be fewer people in jail. “I’m just following orders” didn’t work at Nuremberg, nor does it work today.
David Roth Weiss
Director/Editor
David Weiss Productions, Inc.
Los AngelesPOST-PRODUCTION WITHOUT THE USUAL INSANITY
A forum host of Creative COW’s Business & Marketing, and Indie Film & Documentary forums.
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I think I’ve been misunderstood here. What I’ve been saying is that, based on the poster’s definition of how the work will be used, it technically falls under the Fair Use rules:
#1 – Purpose and character of use. The courts are most likely to find fair use where the use is for noncommercial purposes. Scholarly work is fair use, use in a classroom is fair use.
#2 – Effect on the potential market for or value of the protected work. The courts are most likely to find fair use where the new work is not a substitute for the copyrighted work. If it can be shown that the public is not only confusing your work with the original, but also buying yours instead because it is less expensive you have a real problem.
Given that the work will, as I understand it, be used in an educational manner, it falls under Fair Use guidelines. Since copyright cases go through Federal courts, it is highly unlikely that a company/individual would pursue such a complex and costly case that is so unlikely to end in their favor. Sure, be safe rather than sorry, I almost never allow clients to use copyrighted works. But the poster didn’t ask what was the safest option (because that’s pretty obvious) he asked what the LAW was.
Copyright law is definitely murky, but that doesn’t mean people should scaremonger with talk of a studio owner’s assets getting seized and the like unless you can cite examples of studios being shut down for using a copyrighted song at the client’s request. In the case the poster describes, the copyright holder would have almost no legal recourse against the studio (other than a cease and desist perhaps). Since the client is requesting specific music, the studio is merely assembling various components per the client request, they are NOT passing it off as though the song were their own work and selling it as such.
Brendan Coots
Splitvision Digital
http://www.splitvisiondigital.com
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