If the band has a publisher, why not ask them too? chances are they have a PR and advertising dept. They could help you much.

Aldo,

With copyrights, there are 2 aspects that need to be addressed seperately. The first is the musician's copyright of the song and lyrics. The second is the physical recording or (in this case) performance.

Since the band gave you permission to use the material, that covers the second issue. So the only remaining issue is the actual song and lyrics. If the band was playing original music, then thier permission (which you've got) is all you need, and you can put as much material on your website as they allow you to.

If the band was playing cover tunes, though, then the band does not have any authority to let you copy material. Bands that play covers are usually granted copyrights during the performance by the bar or music hall, which should have some sort of blanket copyright license, similar to a radio station.

If the band was doing covers, then the fair use rules apply to your situation. In this case, farss gave some good suggestions. There is no black and white whith fair use. But if you use common sense I'm sure you won't get in trouble.

-nate

Without overthingking the issue too much - yes you can use them playing songs, use their promo videos - whatever. They key words here are "interviewing". I speak from years of being part of this sort of thing and if the artist is out doing press and their label is sending you their videos for use in the interview it will fall under 'fair use'. Actualy shooting the sets will vary from artist to artist, label to label, venue to venue, management company to managment company, tour manager to tour manager... your mileage will vary.

If you plan on turning around and trying to sell this, than you are into a lot of issues. If you ever plan on selling the material you need to get release from from everyone you interview and the forms have to reflect your intent - to sell the footage in whatever media format you list. For the most part sit down interviews do not fall under the same "protection" as running over to someone at a party and sticking a camera in their face - the whole public figure, public place concept. Also shooting video of a live show and trying to sell it is NOT the same as shooting still images and selling them to Rolling Stone.

One important thing to note here is that the station that *airs* the material will be liable for certian fess, but most stations are covered by existing contracts, the same way radio stations are. But as you mentioned internet - this is a very thin line anymore. Because *you* would be the person streaming it *you* would be the person who has to pay the fees. I have worked at large radio stations that have stoped streaming because of the added fees they got nailed with. Keep in mind this part has nothing to do with copyright in the sense of "Do I have to pay to use it" but everything to do with royalites for 'airplay'. Many labels these days have internet promotion offshoots in their normal promotions departments so if you are going that route I would *highly* suggest you talk to that department first. Chances are if the label you are dealing with is offering interviews and videos for websites than it is also 'fair use', but you *really* need to check that out with the label first.

Overall if your intent is to interview artists, shoot their sets and intercut that with the interviews for air on a news/entertainment type show you will be fine. If you are crossing that thin line into 'documentary' on the act you will fall out of 'fair use' most likely. If you plan on selling it you will fall out of 'fair use'.

None of this falls under Fair Use. Read the laws carefully at http://www.loc.gov.
It's pretty clear. It has nothing to do with who makes money and who doesn't, who streams it and who doesn't, or who gives permission and who doesn't.
I'm not even gonna get into whether you can or can't do this, because that starts a whole nother lengthy thread that's of little value to the forum.
You can find parts of your answer at http://www.digitalpostproduction.com/2004/02_feb/features/copyright_caveats.htm

Thanks for everybody's comments. Spot, your article is excellent. It covers a lot of bases.....And, yes, I certainly wouldn't want this to grow into a mega thread. Everybody has given me enough information so that I can ask some intelligent questions when I visit a legal advice clinic next week. I'll post a summary of what they told me shortly thereafter.

Cheers,
Aldo.

>>> None of this falls under Fair Use. Read the laws carefully at http://www.loc.gov.<<<

It falls under promotions and publicity, if it falls under "news" - it falls under "fair-use". It walks that thin line between "entertainment" ala "Entertianment tonight" and/or "Access Hollywood" and straight news however.

This is an area that I know very well from the promotions/publicity side, from the artist side *and* from the production side. Spot knows his areas very very well too, I am not at all saying he doesn't. But if I contacted Spot or any other artist, or was contacted by an artist or their management/label publicity department/publicist, and did an interview there are no copyright laws broken. Interviewing has nothing to dowith copyright. Now if I am allowed to shoot the artist playing a set, the artist performs for me 'live in the studio' or brings in live clips and/or music videos to use for the interview than this too is all part of the publicity machine and I have not violated any copyright law. If any of the said material is given for 'on-air' give aways (or part of, say, a PBS fund drive) it is part of the promotional machine, still not in violation of any copyright law. These things are done for a reason - it is why they oft times call them 'promotional tours' and 'promotional videos' or clips. Again - no copyright issues when used in conjection with publicity/promotion as we are talking about here. When was the last time any artist with a new product has said "I don't want anyone to promote my product in any way shape or form. Just let it sit there, I don't want people to see it, hear it or buy it. Matter of fact I don't even want people to know who I am...go away now." However studios and lables do this all the time with various excuses as to why, and that is really an enitrely different topic, but reality is all these places have promotion and publicity departments in place for a reason...and it isn't to break copyright laws.

The core question here was about interviewing a band and using their music along with the interview. Yes that can be done and is done all over and all the time. Sub questions were about selling the material and streaming it over the internet. I think my answers were fair and reality based. Look at all of the videos and DVD's out that are "unofficial" or "unathorized" documentaries that "contain no music". There is a very good reason for that and it has to do with everything that is always disscussed in these threads - i.e copyright law. Streaming is another, relativly new, issue and, as I said, the money involved is pretty outrageous anymore and because of that even 'big time' broadcaster stopped doing it.

If you want to keep up with the Jones's, so to speak, you can check out New Yorkers for Fair Use. There are some great examples of just how far this is all going. Including an excellent piece on "Who owns the law?" where they uncover the fact that many of the laws we live by are actually copyrighted and can not be reproduced or distributed without permission.

Some other good things to look at -

The Independent Media Institute
Entertainment Law Digest has a good archive of materials. You need to be a member to access the full text however. Story on the page linked "Ringgold v. BET. Background shots during "ROC" episode showing poster with quilt image are "fair use," barring quilter's copyright suit". Also 'Publicity Rights' links all the cases that deal with that subject. This is worth the $99.00, 3 issue subscription rate, if you are serious about this type of stuff.

And of course Sec. 107. - Limitations on exclusive rights: Fair use, which, in part says: "...for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."

And Sec. 118. - Scope of exclusive rights: Use of certain works in connection with noncommercial broadcasting, which says a lot of things, including in part: "Any owner of copyright in a work specified in this subsection or any public broadcasting entity may submit to the Librarian of Congress proposed licenses covering such activities with respect to such works." and "Nothing in this section shall be construed to permit, beyond the limits of fair use as provided by section 107, the unauthorized dramatization of a nondramatic musical work, the production of a transmission program drawn to any substantial extent from a published compilation of pictorial, graphic, or sculptural works, or the unauthorized use of any portion of an audiovisual work." And to understand what they mean by "public broadcasting" you need to look at Sec. 397. - Definitions, Section (6) subsections (A) and (B) where it defines that.

Interesting reading: Right of Publicity which brings up this point: "While its origins are clearly found within the right to privacy outlined in the seminal 1890 article by Samuel Warren and Louis Brandeis mass media and the emergence of modern celebrity showed that the "right to be let alone" did not address the concerns of people who desired the intrusive light of public attention."

Recomended and interesting reading, because it touches on not only Federal copyright law but also state law and things like SAG, AFTRA and AFM, is a downloadable document from the World Intellectual Property Organization on 'The Protection of Audiovisual Performances'. In part it says "The right of publicity is a state law right (not a federal law right). Its contours therefore may vary across the 50 States, though, in the context of audiovisual works, California law may predominate. The right may be statutorily-based, or may derive from common law decision-making, or both." It also takes a look at what courts feel is considered 'publicity' and what is considered a violation, or 'unathorized use', of someone or something. In one example given: "The Supreme Court has recognized that the right of publicity can cover a performance. In Zacchini v. Scripps-Howard, the Supreme Court upheld against first amendment challenge the application of the Ohio right of publicity to the unauthorized broadcast of a circus performer's 'entire act' (of being shot out of a cannon). The Court held: Thus, in this case, Ohio has recognized what may be the strongest case for a 'right of publicity' involving, not the appropriation of an entertainer's reputation to enhance the attractiveness of a commercial product, but the appropriation of the very activity by which the entertainer acquired his reputation in the first place."

What I am saying is that if I go out and independantly conduct interviews and than edit an "entertainment news" show at that stage I have not done anything wrong in the scenerio of having a label, artist, studio, manangement company, publicist or even the local promoter allow me to interview the artist and possibly shoot the set. Further more if any of the mentioned people provide me with promotional materials for use I still have done nothing wrong. If this show, or segment, airs on a not for profit station (i.e - P.E.G) I still have not done anything wrong. If the local news airs part of it I still have done nothing wrong. If the local radio station that sponsored the concert wants to stream a piece of the interview, or even the entire interview, I still have done nothing wrong. And if a broadcast station wants to pick up the show and air it I still have not done anything wrong. At this stage all the things I mention are considered publicity that all original partys involved (I mean the artist, the label, the managment, the publicist, the local promoter, etc) are allowing and probably endorsing, do they allow it under "fair-use"? I have never ever asked that of anyone nor has anyone ever offered an artist for an interview or related promotional materials for use with it, based on "fair-use". And as I said in my other post - many labels now have internet promotions sections of their publicity departments. Not only do they help set up giveaways and interviews but oft times they supply material for streaming.

Now the other part of the questions - the entire copyright part and fees payable part. As I said - no matter who airs it or streams it any music related fees (Payments to ASCAP, BMI, SOCAN etc) come from them, not you. And this is based on you *NOT* selling it. It is also based on you not being the person who actually is airing it or streaming it. I respect Spot a great deal but I always take the other side of his "The law is clear" stance because it isn't always cut and dry. In the case of of doing publicity on the one side and someone like aldo12xu on the other it is really not at all that clear.

Bottom line here, and I think that even Spot would agree 100% with, is to just break it down on paper and hire lawyer to look it over. On paper step one is getting the interviews and other promotional materials. Step two is editing it together. Step 3 is putting it out there - this is the area you will start to see issues depending on what you want to do and how you want to do it.

A Real Life Tale of Fair Use

Last year - A well known production company contacted me to license some of my copyrighted footage of the 1994 Northridge Earthquake. My quoted fees were to high for them and they said that they would obtain the footage elsewhere. And, even though I carefully explained to them that No Entity on this Earth had the rights to Sell, License, Distribute, Trade, etc... my copyrighted material - they, obtained it and paid a fee for it from a third party broacasting archive entity. The Entity that sold my footage to them - only had rights from me to broadcast that footage and nothing else.

The Production aired 6 months later on a major cable network. One third of the hour production was built around my product.

I contacted the Cable Network and was contacted by their Attornies. The Network had received a wavier of Subrigation from the Production Company. The Production Company's Attornies sent me a letter offering me $500 to go away.

The Cable Network paid the Production Company nearly $200K for the Broadcast Rights. Wow! One third of the Production was produced from my intellectual properties and they were so grateful as to offer to throw me a $500 bone.

Ok, So - I sent an Invoice for $20K to the Cable Network. I advised them that they would be 1st in line on the Legal Food Chain, if they did not pay the invoice. Their Contract with the PC clearly stated that the PC would cover their legal costs if they were sued over the content.

Now, on to the Nuts and Bolts. In an attempt to not be responsible for the $20K - the PC made a legal claim of "Fair Use". They claimed that the purpose of the Production was to Educate the Public.

The "Fair Use" Claim by the PC angered the Cable Network and put them in bad favor. The Production was Clearly for Entertainment and Profit. The money trail - helped tell the story.

In the past 16 Years of being in the Footage Licensing Business - I am batting 1000 against all cheaters and thieves.

The moral of this story is that "Fair Use" is easily defeated if you have not crossed all of your t's and dotted your i's. The burden of proving "Fair Use" will be on You - Not the Offended Party.

This does not mean that I do not support "Fair Use" in it's proper context. For Me, It must not affect my ability to control my product, profit and to be able to earn my living without the unfair business practice of fraudulant claims of "Fair Use".

--Jay Mitchell

Excellent posts, Jay and Filmy.
Fair Use does NOT cover music edited into any interview if the interview is promotion based. I've had to sign many a release on this subject, the most recent one for the movie, "Hidalgo" where I'm not allowed to stream, broadcast, perform publically one single phrase from the film. In any interviews I might be asked to grant, I cannot use the soundtrack, cannot use portions of the film, cannot even use the artwork for the film without the studio's express written consent, which Buena Vista does not often grant.
Hell, Sony's own people can't even use portions of Sony films for demo purposes with Vegas or anything else. Sony music artist's works cannot be used either.
A news story is different, but a news story doesn't fall under promotion. Edit music from anything but a live performance into your story and you run into risk. Rarely does a label-represented band have the right to allow anyone to use their music without publisher sign off. Just ask Huey Lewis.
As Filmy says, have your attorney look at it, and sign off on it. If your attorney doesn't understand IP law VERY, VERY well, get a different attorney.
I just attended a legal conference on this very subject, and will be attending another one in 2 weeks. I'll bring this specific question up, the answer will be very interesting.
Ned Hearn, one of the best respected IP attorneys in the music industry is the key note.