Could I just add that as far as I know even without the video part of the exercise you still need permission just for the performance.

Bob.

If the music is used for, or in connection with, "educational purposes" in the performance and video it MIGHT pass as "fair use". It's in section 107 of the US copyright law. I wouldn't try without reading that first.

A lawyer would probably eat that statement for breakfast so be careful.

Best/Tommy

I'm no lawyer but I'd still eat that for breakfast and lunch. I'd think the intent there was education 'about' not education 'using' . Taking such a liberal view would mean cinemas could call themselves schools and charge an education 'fee' and then not have to pay the copyright holders.

Bob.

This subject has been beaten to death. Simply put see a lawyer . By the way every highschool or middleschool that puts on a play pays for the rights. Education,nonprofit blah blah blah,they have to pay.

Thanks Winrock, the subject may have been beaten to death, but do you really know of any small non profit organizations that would go through the licensing procedure for one or two pieces of music in say a small school production? Have any such organisations been sued for not getting licences? What would the damages awarded be, the cost of the license not obtained or more?

And how long would it take to get, a license for say part of an old Elvis piece that people mimed to?

Does a videographer really have to wait until all the licenses have been received before he makes copies of the video?

Regards, Fred

I can only speak for the situation in Australia but yes, pretty well every school and church production does get a licence and yes anyone who wants to video that for not for profit distibution to parents etc needs a mechanical licence. Fortunately here there's a pretty much one stop shop for these and the costs are very reasonable.
It still gets sticky if you are selling the product, same royalty, copyright issues apply. Syncing music for say weddings is pretty easy down here as well, one annual licence and you're covered.

Bob.

I'm curious , and this is something I REALLY need to explore. How DOES one get permission to use a song in a non-profit personal project? My stuff get's constantly criticized for using copywritten material ( and rightley so ) but not one of the critics has offered a website or link to where one would find that into. Anyone know where a good starting point is to ask to use a song for personal non-profit use ?

>>>How DOES one get permission to use a song in a non-profit personal project? <<<

Same way you would for any other use. You contact all parties involved - or go through a clearing house that specializes in music. For example Bug Music handles artists with film use in mind. I just found out about 2 days ago that a guitar player I know formed a small indy "clearing house" for artists to get their music into film and such. Another friend of mine has a new-ish band and she says on her bands website that "if you want to use our music ask, chances are we will let you."

So - non-profit or not the road is pretty much the same.

How DOES one get permission to use a song in a non-profit personal project?

I'd suggest reading Spot's copyright article at http://www.sundancemediagroup.com/articles/copyright.htm
(free registration required). He has the answers to most of the questions/issues raised here.

Mike

Q: "...but do you really know of any small non profit organizations that would go through the licensing procedure for one or two pieces of music in say a small school production?"

A: Yes, ours for instance. In existence for twelve years and members of both BMI and ASCAP. And yes, we are a very small nonprofit corporation who asks for and is generally granted performance and arranging rights for every song we use. And yes, this applies to our "small school productions" as well as major musicals and concert performances.

Q: "Have any such organisations been sued for not getting licences?"

A: Yes, including major universities, small colleges, and high schools in our area alone over the past ten years.

Q: " What would the damages awarde\d be, the cost of the license not obtained or more?"

A: In all of the instances cited above, $10,000 to $12,000 USD for each occurence, including unlicensed performances and making photocopies of music literature.

1) Regarding the "fair use doctrine" -- DON'T EVEN GO THERE! If used preemptively, it is a sure ticket to a court hearing. It is never an excuse to avoid asking for permission first.

2) As I have said many times in the past, "JUST ASK. THE WORST THEY CAN DO IS SAY NO." Why is this such a problem for so many people? Find the email address of the publisher, record producer, or copyright holder and ask them if you can use their song.
Golleez, Gomer, usually they just say OK or ask you for fifteen bucks. Is that such a blow to your fragile ego or your precious time?

Why, why, why does this same question get asked over and over again? I suspect the reason is greed, laziness, and dishonesty, but I can't be sure.

A practicing musician for over thirty years.

"Why, why, why does this same question get asked over and over again? I suspect the reason is greed, laziness, and dishonesty, but I can't be sure."

Wow! That's a little harsh, don't you think? You (a practicing musician for over 30 years) and I (a practicing musician for over 47 years) have been looking at the business of music for a long long time. Can you remember the first time you heard of BMI, ASCAP and SESAC? Why would you expect a non-professional videographer to know anything about performing rights organizations? Sure, you would think that it would be an easy thing to find the name of the publisher of a song by reading the CD insert but if you are not a musician you may not even be aware that the information is there.

If anyone here wishing to use someone's music illegally out of greed, laziness, or dishonesty they would not bother to ask the question. It seems to me they ask because they want to do it right.

Blues

You are entitled to your opinion. I first heard of these licensing organizations when I hit the road in 1972. Our booking agent didn't allow us to use transcribed songs without rights. He paid the royalties. It was a good lesson, especially when we started writing our own material.

Anyone wanting "to do it right" would be asking the question of the music publisher or their business or nonprofit lawyer of record, not in a public videography forum. Someone seeking only affirmation or endorsement of their "right" to use someone else's property without permission would seek that kind of support in a public forum.

"... a little harsh, don't you think?" You bet. The search term "copyright" will yield more whining, excuses, "me's, my's, and I's," bs, "but what if's", and general nonsense than any other posted here. For those who are seeking that kind of confirmation here, it would be wise to be careful what you wish for.

And, just in case you didn't notice, the original poster was asking what the consequesces would be if he DIDN'T ask permission, rather than trying "to do it right." Seems he pretty much understood the rules already at that point, eh?

Just to reassure "musicvid" (and others) that I really am trying to do things "right" and I appreciate the really good feedback that has been provided so far. But there are a lot of laws around that are never really enforced and just waiting to be repealed. I can see now that a newbie such as myself, needs to study and understand the boundaries that apply to the copyrighting of music in videos, particularly when no one is making a profit from using the music, and the composer / recording studios could not really claim to lose sales because the music, or a small part of it, is in an amateur video!

In Spot's article, the question was asked "will there be a problem if we sing happy birthday"? Answer: YES, the traditional melody (not the words) of "Happy Birthday" is copyrighted and may not be transmitted, recorded, or performed publicly without a royalty paid. Now how many newbies would possibly have guessed this would be the case? How many videographers worldwide would get copyright on a film that had "happy birthday" sung in it as the only piece of music? Don't you think "musicvid" this is going just a bit overboard?

Regards, Fred

>>>Why, why, why does this same question get asked over and over again? I suspect the reason is greed, laziness, and dishonesty, but I can't be sure.<<<

Hmmm...well, for the context of this thread on these forums I think the main reason the same question s asked is because newbies, and others, don't get the "Search" function. The "greed, laziness, and dishonesty" remark is a bit harsh overall because it makes the assumption everyone who uses music off a CD, or even a cover version of their own, is being dishonest. I highly doubt that every single little kid who jumps up and sings at some talent contest has sat down at age 4 and been advised that they will be sued if they do a karaoke version of "Wheels on the Bus" without obtaining the correct forms. And probably 95 - 99%% of the parents out there who shoot video of their kids in the talent contest are not too lazy to go out and get a sync license because most of them have no clue what a "mechanical" even is.

And I have worked with many bands who do covers every now and then - some with managers and some without, some on major labels some with no label, and I have yet to hear anyone of them say "Man I wish we could do this song but our booking agent can't afford to pay for us to do it." Actually beyond booking I have never heard any band or solo artist complain their booking agent won't allow them to play songs - unless it might be the set list has to be approved prior to the gig...like a high school gig, or Disneyland. One of my best friends has done covers on almost every one of his bands CD's - his band even did one whole CD of covers because the lable thought it would be a cool thing to do. He has never ever done any cover, or put it on a CD, because he was greedy or lazy. Frankly if that was the case he wouldn't pick semi-obscure acts like Joy Division and Leonard Cohen to cover. When we played in Europe he did "Needle and the Damage Done" because his wife had tried to OD on heroin at the time - but no one in the crowd new that was the reason. His message to the fans - Don't do heroin. First time I ever heard Guns and Roses do "Knocking on Heavens Door" was right after Todd had OD'd and they did the song for him...that night was a powerful, tearful show. This was maybe 3 or more years before that song was ever put out and it was right before most of the world had ever heard of G'n'R outside of the whole Scream scene.

I said this a few times before - with all respect to Richard O'Brien - Some people do it for the money, some people to it to be funny and some people do it just to do it.

Hey, Fred,
Finally we're reaching some common ground on this. To address your questions in order based on my experience (I will never claim to give legal or business advice here or anywhere else, as I am a musician, a poor businessman, and not a lawyer):

1. I really doubt if the amended copyright laws will be repealed or lose their teeth through lack of enforcement anytime soon.
2. The fact that you aren't making money from a performance or recording doesn't excuse you from having to ask permission of the copyright owner or publisher, in my experience. If may however, increase the likelihood that you will not be asked for significant royalties or usage fees based on your income scale. In fact, we occasionally are granted permission without any fees for benefit or uncompensated performances in licensed facilities.
3. Spot and I have been in the same business for many years, and there is very little I could find issue with in any of his articles or tutorials. "The exclusive rights granted to the author include the right to prohibit others from reproducing (copying), adapting (making derivative works), distributing, publicly performing, or publicly displaying the work." ("How to Register a Copyright and Protect Your Creative Work," Chickering, Hartman, 1987 pub. Scribners). The key word regarding performing is "public." Spot is absolutely correct on this point in my experience, and that is why when the staff at responsible restaurants assemble to sing "Happy Birthday" to a guest, a melody other than the traditional one is used. Your specific question of videography has other important implications because it involves reproduction and ostensibly distribution. Please consult your nonprofit lawyer of record or a copyright attorney on this if the publisher or copyright holder is unable to answer your questions.

Thanks for these very pertinent observations "filmy". Many people make amateur videos of family events and these might be distributed to quite a few people. It just wouldn't occur to these people that they should not sing "happy birthday" to the traditional melody because of copyright implications. I mentioned this example to one or two people and one said I was turning into a "crackpot". See the effect you people are having on me! Similarly, most people wouldn't even think of licensing music that happens to be playing in the background at the time you're filming, as discussed in the article by Spot.

But there is still one key question that puzzles me. Assume that a small non-profit organisation has not licensed a few short pieces of old rock music that are included in its amateur production. If I am asked to make a video of this production and I am pleased to do this without payment, am I exposing myself to liability for the non licensing of the music if I make just one copy of the video of the production and give this to the organisers? Should even an amateur videographer demand to see evidence that licenses have been granted before agreeing to film the production, or is this going overboard?

It seems to me from what I have read that it is the making of many copies of a video production with unlicensed music that is the main problem. If the organisers take full responsibilty for the making of the copies in this instance, then is the person who filmed the event in the clear legally or not?

Sorry to annoy people by initiating yet another thread on this topic, but there is always something new and interesting that comes out that has not been mentioned before, so it is not just pure laziness on my part (as suggested by some) that I have not relied on archived material on this topic!

Regards, Fred

Assume that a small non-profit organisation has not licensed a few short pieces of old rock music that are included in its amateur production. If I am asked to make a video of this production and I am pleased to do this without payment, am I exposing myself to liability for the non licensing of the music if I make just one copy of the video of the production and give this to the organisers?

Yes, Fred, the liability is still there. Like it or not, the fact of the matter is ignorance of the law--whatever it may be--is not a defense.

Does what you suggest happen? All the time, probably every day.

Does everyone that does this get caught and/or prosecuted? Probably only a fraction of a fraction. However, that does not make it right.

Again, if you would use the search function of this forum (you'll see it listed above toward the upper right-hand corner of the window), you would find the answers to every question you've asked thus far and then some.

Jay

"Musicvid" Relax, your going to have a heart attack. It was a newbie question, he's probably new to the forum. I'm sure you probably asked some dumb questions in your life. Give someone a break my friend.

All,
Obviously, this is a very hot topic here. But it's really indicative of a larger problem that can be summed up as follows:

1. Computers and PC hardware, video cameras, and other technology is becoming more and more mainstream as costs are driven down. Microsoft, for example, pushes multimedia in their modern operating systems, more video, more audio, and more user-created content. As this trend continues, coupled with amazing programs like Vegas that allow an amateur with good instincts to get results much closer to professionals than ever before. Suddenly, you don't need a degree in video production and thousands of dollars worth of hardware and equipment in order to produce impressive videos. Granted, you won't match the pros, but you can get passably close enough to impress friends and famliy.

2. The whole music/video licensing business is clear as mud to the average computer user trying to use these new tools. Microsoft gives them Movie Maker and Sony gives them Vegas but noone is giving them any idea to the consequences of their actions. These tools are like handing people a gun without instructions and hoping they don't shoot themselves. This is fine if you are selling to trained professionals but NOT when you market to the mass market. These users aren't looking to break laws or get sued, they just want to create something. Though this does not excuse them from liability for misuse of copyrighted material, you have to understand that this isn't going to be obvious for them.


Both of these are going to continue and the situation will only get worse until an effort is made to make things better, like:

1. The public needs to be more aware of these sorts of issues. I was pretty in the dark until I read Spot's article. It's an excellent article but unfortunately it's more frightening then helpful I think to the average user. I was almost afraid to launch Vegas after reading it! And I still didn't know what I should do about it. For the time being I've turned to Freeplay music for all my video syncing needs.

2. As video production becomes more mainstream, we need to simplify the licensing process. It can't involve expensive lawyers and wordy contracts. I have to be able to license music, video loops, etc for some simple, flat fee for unlimited personal use. As the consumer video production market grows, it will easily make lots of money in pure volume with cheap licenses of content for private use only. It then becomes just like buying a piece of software: I get one copy which I can use for my own use only, under the terms of a EULA which is common to everyone and not negotiated on a per-deal basis by lawyers. There could also be more expensive licenses for limited distribution like Wedding videos, school plays, and the like. Large distribution licenses probably would still need to be negotiated by lawyers.

Take this for an example: Sony sets up a site to sell commercial music(MP3s or whatever). Next to each item when you add it to the cart is a selection for usage:

1. Personal listening only
2. Personal listening + private video syncing
3. Personal listening + non-profit video distribution (read link for details on qualifying)
3. Personal + video distribution(<100 copies sold)
etc.

You have a very easy way to license the content; no making phone calls that aren't returned because you are just too small to care about. No lawyers. No questions about what you can and can't do. The EULAs are posted and linked right to the selection. I think more people would license content if they had a way to do it simply. Otherwise, they just say, "it's my home video, noone will ever see it, so what do I have to worry about?"

I think this is a growing and hugely untapped market. Sony could do this themselves, or an enterprising person could start up a business, put it on a web site, and negotiate contracts with the big content owners and sell the individual licenses. Kind of like a retail model.


3. A completely alternative licensing model can be found in the open source community, like the GPL. It basically states(correct me if my layman's interpretation is wrong), that you can freely use content released under the GPL, but then anything you release must also be GPL. So, if someone is a musician and records some instruments and puts them up on the net for people to use in ACID loops, then anyone can use them for free. But, if I create a piece of music in ACID and use those loops, I must also release my music for free private use(if I release it at all). If I then create a video and I want to sync to that music, I can do so for free, but then I must also, if I make the video publicly available, allow it to be freely used in derivative works. A license like this might only apply to private use; if you want to use it elsewhere, you might still need to get permission from the various creators. This is not a lot of good for people trying to make a living from their artistic talent, but it helps those of us who never plan to earn money from their work but just have a personal desire for creative expression. Even professionals might still find value in this licensing model for exposure; if their name is on it, they may be contacted by someone in a commercial field looking to hire them to create non-GPL licensed products.

Anyway, this is just some of my rambling ideas on the subject. Perhaps I am hopelessly naive. But something needs to be done to speed the flow of content from people who create it to people who need it. I cannot learn to play every instrument in the orchestra, record and master every one in Sound Forge, compose a bunch of songs in ACID from those clips, shoot a bunch of video with a camera, get it all into the system, edit and sync all the create audio and video in Vegas, master to DVD in DVD-A, and all the other steps I've probably forgotton. I don't have the time, I don't have the knowledge, I don't have the skills, and I don't have the money and equipment to do everything myself. I think even the pros here don't do ALL of this themselves.

-Jayson

Jayson I think a lot of what you say is something a lot of people feel, and have said in various forms here and elsewhere. However somethings are not as clear as "for profit" and "not for profit". One could look at SAG andf how they set thier rules for payment to their members. They have a pretty decent system - but it is laid out as a base rule. While there is a minimum, there really isn't a max, as far a payment goes. They include definitions for low budget and student films.

On the idea of a "click" and "buy" website that would deal with licenses and such for music - I think it would be much akin to what is already out there with sites like Freeplay. If you have read my other posts about them you will see that even they are not that black and white anymore. Their license used to be be very clear in that use of a Freeplay piece of music was FREE for anything, anywhere, forever and ever. (Royalty payments aside that is, but most production comanies/directors/producers don't pay those anyway - that is something that distributors and TV outlets normaly deal with) However now they have all kinds of 'ifs', 'ands', 'ors' and 'buts' in their agreement. And they are now more aimed at "We have all the money in the world" types - but do it back asswards - "IF you have a big budget and major distribution it is FREE" "IF you use it in a major network or cable TV show or movie [ie - NBC, ABC, CBS, HBO and so on] it is FREE" however "IF you are a small indy who has no budget and will sell about 100 DVDs contact us for a quote" wording. But they are still easier and cheaper than trying to get , *cough*, SONY Music to allow one of their artists music to be used in your wedding video.

And on the subject of "non profit" - this is one of my pet peeves. The lump sum of those who deal with them feel that all Non-profits should be on the same price scale as PBS. Very few bother to break down costs associated with, for example, PBS and any PEG outlet. I have felt this first hand on the video side when one "stock footage" house told me I would have to pay $300 for a VHS screening tape upo to 2 hours - didn't matter if it was 120 minutes or 10 seconds of footage, the cost was the same - and $2,500 per minute of licensed footage, 1 minute minimum. I explained that this would be for a non-profit PEG production and they calmly told me that *was* their "not for profit" rate and they were already "helping" PBS with a production and could not cut prices to any other "non-profit". This rubbed me the wrong way - the average PBS station can have upwards of a quater of a million to work with on a production, plus have serious "funding" where as the average PEG outlet is lucky if they can get 100 bucks every few months to get a cheap VHS VCR and on the whole a PEG producer isn't really allowed to have those PBS "ads" that say "Funding for this program porovided by GE - We bring good things to life". Even the higher end PEG outlets, such as MNN, would not be able to pay that kind of price for 60 seconds of video. So, based on that kind of theme it would be hard to just have someone "click" and "buy" a piece of music for "non-profit" use. I am sure that TBN and PBS have a lot more money and viewers than a local church who has their Sunday service aired on the local PEG outlet that less than 100 people view...yet I would take an educated guess and say that 9 out of 10 stock footage houses, networks and music licensing outlets lump them all together. Actually, this is kind of funny, C-Span will allow use of their footage in films and documentaires as well as to be screened for educational reasons and non-profit use however they *never* allow any of their footage, in any shape or form, to air on any sort of PEG outlet. Again, sort of like Freeplay, an assbackwards way of doing things if you ask me.

I think that Jayson's post is a very good description of the position that newbies face when they first enter into the world of filming and video editing. The suggested solutions that Jayson has put forward to the music licensing problem make very good sense, and seem to have been partly adopted at least in Australasia. The postings by bowman01 and farss about the APRA and AMCOS were very interesting, particularly the following URLS:

http://www.apra.com.au/Licence/RecDomestic.htm

or if you live in New Zealand: http://www.apra.co.nz/

Thanks again for all your help, the postings you made have been really helpful.

Regards, Fred

Filmy,
You have valid points. I'm looking at this mostly from a home/private user point of view, whereas you apparently are looking at it from the small professional point of view. Both of these markets are a bit different and have different requirements. Would my model work at your level? Not sure; someone closer to the business than me would have to make that decision and set up the operation(which is why I didn't run out and buy the domain www.musiclicensers.com :) ). Perhaps someone more attuned would think I'm crazy, like the the way I feel when one of my customers tells me "it should be easy" to "juast add this feature" to a product with no understanding of the underlying complications and technology. I think my solution, with well-written license agreements, could fit 80-90 percent of the cases, which would still be a viable business model and make money. Such a business could also sell more expensive "custom services", where a person would act as an intermediary to negotiate a special agreement. Since these people would know all the people to contact anc have existing business relationships with them, it might be easy enough to agree on a license with a few exceptions.

As far as your Freeplay beefs, I understand your frustration, and that struck me as very odd when I read it. After some thought, I realized why they were doing it. From the point of view of the composers, their eventual goal is to make money off their compositions. Private individuals won't pay enough for licenses to make it worthwhile, so they can use it for free. People making money, like the small distribution video, are charged because they can provide a reasonable source of revenue for the composer. Now, why should networks be free? Freeplay is going to do this because large broadcasts give their composers what they need more than money to succeed - EXPOSURE. If NBC uses a freeplay piece of music for the olympic games(DId I hear something like this was happening?), that's priceless exposure for a composer. Think how many people will see it! If someone likes it and asks NBC who wrote the music, it could lead to big success for the composer. Inversely, if NBC had to pay for it, they would probably just license from Sony or some other large company with which they already have a business relationship(or perhaps they even have in-house composers).

Bottom line: I understand Freeplay's policy decision, and I think it makes good business sense from their point of view. I DON'T think that it's FAIR to their customer base, but I understand it. Just as the middle class bears the brunt of the taxes, so too it seems that the small, for profit film makers have to keep the business going.

-Jayson