Music copyright question for DSE & others

Avanti wrote on 12/18/2007, 4:05 PM
If I hum the tune;
OR play a musical instrument;
OR hire a band to play the first 20-30 seconds of a hit song
(with NO vocals) to use in a video to be played either on the web or TV;
do I need to pay the original band or someone for that right?

Please only knowledgeable comments and no guess work, theory or assumptions.

Thanks,
Charlie

Comments

John_Cline wrote on 12/18/2007, 4:18 PM
"do I need to pay the original band or someone for that right?"

Yes. You didn't write the song, so it isn't yours.
Serena wrote on 12/18/2007, 4:22 PM
If it is recognisable then certainly. You might hum it so badly that nobody can tell what it is, so it would be original. This has been discussed so often, for example http://www.sonycreativesoftware.com/forums/ShowMessage.asp?ForumID=4&MessageID=516219a thread[/link]
You might search "copyright".
eVoke wrote on 12/18/2007, 4:22 PM
With the RIAA and the MPAA obtaining judgments in infringment cases all across the nation - the last thing you want to do is use a song without permission or licensing ESPECIALLY on broadcast TV.
kdm wrote on 12/18/2007, 5:07 PM
The melody is absolutely copyrighted as part of the original song.

The only grey area comes into play with soundalike music that uses similar instrumentation, chords and perhaps a similar arrangement, but none of the original melody (usually no melody/lyrics at all), but that's not what you are referring to here.

Find out if the song is under ASCAP, BMI or SESAC and contact them about a sync license if you plan to use it in any commercial or public way. There are online forms for getting a license. As eVoke suggested, don't risk it, and for the sake of songwriters and artists, support original music with proper licensing, or make your own if there isn't budget for it.
Spot|DSE wrote on 12/18/2007, 5:41 PM
Discussion of the RIAA and MPAA don't enter into the answer at all, but the rest of the posts are accurate; you cannot even hint at someone else' composition unless it's parody (and that is a whole bag of snakes).
Any production violating a copyright in this manner would likely not make it to broadcast; you're required to rep/warrant/provide clearances in virtually all b'cast.
busterkeaton wrote on 12/18/2007, 6:10 PM
While we are on the subject, I was at a corporate event the other day where they did a slideshow of employees of the company scored to original recordings of giant hits by the Beach Boys and Michael Jackson and others, maybe 6 songs in all. I was trying to guess what the cost would have been if they were on the wrong side of legal decision. Each song would be, what 3 copyright violations, song, performance and sync? I mentioned this to one of the heads of the company who I know and he claimed they were covered.

kdm wrote on 12/18/2007, 6:53 PM
I'm pretty sure the live event use would be covered under a sync license for the song itself, while the recording would be under a mechanical license picked up by the recording artist(s), production company or label. Use of the band's cover recording might be a set fee, or a separate license between them and the company. If the company paid for all of it (recording/production) they would have likely picked up both licenses.
busterkeaton wrote on 12/18/2007, 7:17 PM
I'm pretty sure the company paid nothing. They were surprised when I mentioned they just created a liability.
farss wrote on 12/18/2007, 7:35 PM
Been there, done that!

Technically yes, they need a sync licence which they would have to negotiate with the copyright owners. However if the venue has the right licences in place that let them play music (APRA down here) then they can play any music they like and do so while the video is being played. Put the music and video together on the one tape and without a licence form the copyright owners you could be in an ocean of grief. In practice no one seems to give a rats about these kinds of issues and expect to get laughed at for even trying to do the right thing.

Selling the tape or broadcasting it etc is another matter entirely.

Bob.
Bob Greaves wrote on 12/19/2007, 4:34 AM
"do I need to pay the original band or someone for that right."

You never need to pay the original band unless you are using their performance. You always need to pay the author/publisher who owns the copyright for use of the song.

But what is the song? Copyright does not apply to chords, or chord changes alone. George Harrison lost his My Sweet Lord law suit NOT because the chord chart was similar but because the melody imposed over the chord changes was similar.

Using the same guitars as the Beatles used, you could record a Beatles song identically to the way they played it. If you leave out the melody (vocals and distinctive melodic riffs of the lead guitar) you are good.

Please Please Me.

E E A E
GG AA BB
E

You cross the line when you add the vocals or include the melodic line played by the harmonica.

Nonetheless, copyright is a funny thing. People make up so much stuff drawing implications that make sense to them. This is because people in the USA do not understand how the law REALLY works.

The law as written is not the law in spite of the fact that judges and lawyers will not admit to it. (They would be way underemployed if they could admit to it). The law is the law as it is interpreted by those who enforce it and those who sit on the bench when it is called into question.

This means you are in constant arbitrary jeopardy. There may be a behavior that is clearly against the law as written but court cases have been successfully argued on how the law cannot be applied that way. At the same time there can be another behavior that is far more remote but has a history of being applied strictly based on some long standing legal precedent.

When copyright was a mechanical process, sheet music was used and only the melody was covered. Now that copyright applies to anything in a fixed medium it applies however any judge wants to apply it and in a manner that is ill defined, far from unique, inconsistent, arbitrary, ignorant of the plethora of features present and full of nonsense.

For example. (Another Beatles example) Many Lennon/McCartney tunes are copyright protected such that ONLY John Lennon and Paul McCartney own credit as the authors of the song with Northern Songs LTD being the publisher/copyright holder. Only Lennon/McCartney and Northern Songs LTD receive the royalties for the SONG. George and Ringo get no royalties for the SONG, but they do get royalties for their PERFORMANCE in the song whenever that Beatles recording is played in public.

If I record my own version of "A Hard Days Night," playing it instrumentally identically but singing it uniquely different, the royalties for the song go exclusively to John Lennon and Paul McCartney. Ringo gets nothing in spite of the fact that he arranged the drum patterns and fills that I copied in total. George Harrison and George Martin get nothing in spite of the fact that they are the ones who created the solo that I copied perfectly.

Copyright law as written should credit and protect them all, but as practiced focuses upon the lyrics and melody the author of record and the publisher. (In other words follow the money and who has the clout to pounce.) We can go real loose with melody and even change the lyrics some but the royalties are still due. While on the other hand I can copy exactly other aspects of a creation and owe nothing to anyone.

People who argue about copyright, including legislators, judges and lawyers are not yet ready to admit that they are attempting to iron out extremely complex details that are for all practical purposes, impossible to manage.

Do you know how many arrangements are protected by copyright for the song Row Row Row Your Boat? There are tons of Public domain songs that you could get nailed for simply because the way you spontaneously played it was similar to a copyright protected "arrangement" of the song.

Copyright is the law, you have to abide by the way the law gets practiced but a close inspection of it reveals that legal logic is only an illusion. We need a new area of historical expertise called Legal Anthropology to study the forms, functions and ideologies of behaviors from a legal standpoint.
Spot|DSE wrote on 12/19/2007, 6:32 AM
When copyright was a mechanical process, sheet music was used and only the melody was covered. Now that copyright applies to anything in a fixed medium it applies however any judge wants to apply it and in a manner that is ill defined, far from unique, inconsistent, arbitrary, ignorant of the plethora of features present and full of nonsense.

Just to pick nits...This isn't quite so. Mechanicals came into place as the result of "mechanical" piano players, ie; player pianos, not sheet music. :-)
DavidMcKnight wrote on 12/19/2007, 8:03 AM
"Ringo gets nothing in spite of the fact that he arranged the drum patterns and fills that I copied in total. George Harrison and George Martin get nothing in spite of the fact that they are the ones who created the solo that I copied perfectly."

This is why some bands (though not many) have songwriter's credit going to all members (Van Halen comes to mind). As for the George Martin comment, you'll notice that producer Mutt Lange is listed as a cowriter on most of the projects he works on, including AC/DC's Back In Black, the big Def Leppard albums, Bryan Adams, and of course Shania Twain, who is his wife.

I bet he drives a nice car...
Bob Greaves wrote on 12/19/2007, 9:29 AM
SPOT your nit is "rit," erh I mean, right. My point was that when the process was more mechanical it was, in practice, limited to the melody and lyrics and a few other features that prevailed in court. Now it is more open ended without anyone taking the time to realize how unwieldy and indefinable all the features of a creative performance can be organized into.

Copyright law will, over time, get reduced into some form of inequitable king on the clout mountain. The rights that get protected are limited to the rights that prevailed while the rights that don't get protected will be those that seemed to not matter to those who could make more money and had the ability to punish the market if it did not agree.

Why are the law suits for infringement happening today? Not because of infringements, not really - even though there really are some legitimate claims of infringement. They are happening because they can.

I'd like to see a revamping of the copyright law again. One that protects creative material for all who take a leadership role in the creative process. Protects them by making it illegal to be able to sign all your rights for all time away to a publisher or other such methods of creative robbery. Furthermore, I'd like to see copyrights that expire in a reasonable period of time allowing all creations to eventually become the property of us all.

Under such a model, it would be innovations that would be king, not the FALSE claim that a work is truly fully original. We all rely upon what already is to merely rearrange it into something new and fresh to our experience. We all take from the same common pool and we all ought to give back to that common pool.

Extensive intellectual property rights are merely greedy attempts to eliminate the competition because you cannot stand up forever against the innovations of a huge sea of creative people.
mptribe wrote on 12/19/2007, 10:20 AM
There is a service you can use to license music. They don't have every song, but the list is growing all the time.

http://www.zoomlicense.com
DGates wrote on 12/19/2007, 1:07 PM
Throwing together a photo montage with a few pop songs to show at some conference isn't going to be on the radar of the music licensing companies.
John_Cline wrote on 12/19/2007, 1:31 PM
"Throwing together a photo montage with a few pop songs to show at some conference isn't going to be on the radar of the music licensing companies."

Sure, but it's still illegal.
Laurence wrote on 12/19/2007, 2:03 PM
This whole discussion reminds me of the divide between musicians and the music industry. Classical composers borrowed from each other all the time. It was easy for them because there was no copywrite law yet and no recording technology to give away when ideas were reused.

IMHO, no music is that original. They all have the same 12 notes and often the same three chords. Some scrawny teenager rehashing the same three chords and singing a slightly different auto-tuned mediocre melody about trying to get into some girl's pants may fool the record company executives as being some kind of incredibly valuable intellectual property, but as far as I'm concerned, it is all just a rehash of what has come before it.

There is a is a wonderfully funny video that illustrates what I am talking about http://video.google.com/videoplay?docid=2728165790728274099here.[/link]
farss wrote on 12/19/2007, 2:08 PM
If you did it as a Powerpoint slideshow it's probably quite legal.
If you did it as a DVD to be played it's illegal.

Former you have not created a new work where the music is synced to vision. Latter you have. So long as you don't embed the music into the one new work all is cool, and the venue has the licence for public performance of music of course.

It's so silly and impossible to enforce that's why they don't care, it happens all the time and no one is going to get excited about it.

Bob.
CClub wrote on 12/19/2007, 2:39 PM
Okay, here's a scenario: I create a video montage for a family, not for business shows, etc., just grandma and grandbaby walking on the beach ... then I create an original soundtrack via Band-in-a-Box software combined with SampleTank XL sampling software. I HAND this DVD to them. That's what they paid for. THEN, they buy several songs off of iTunes, with their quota of "burns" they make a CD, and I help them -- in my own free time, of course -- assemble the songs into a timeline. I then tell them how to synch this audio track with the video track I produced on any video software they buy at Best Buy. How about this? I'm not synching it for them. I'm sort of like a clerk at a convenience store selling Zig Zag rolling papers (legal, but we all know what it will be used for).

Avanti wrote on 12/19/2007, 5:42 PM
Thanks for the input so far. Just to add info; coincidentally one of the songs I want is "Back in Black" by AC/DC. Remember now, I just want to mimic the first 20-30 guitar seconds before the vocals start. There is a "Tribute" band called "Back-in-Black", http://backinblack.info/ that plays and sells AC/DC songs on the web that sound original. How do they get away with that?

Can I use "Back-in-Black's" version of the song and add some extra drum beats or something to make it unlike any others? (without lawsuits)
I want to create a "soundalike". How do the karaoke producers get away with re-doing entire songs?
Kennymusicman wrote on 12/19/2007, 5:54 PM
If it's a commercial product, then you need permission to use it

As stated earlier
"Find out if the song is under ASCAP, BMI or SESAC and contact them about a sync license if you plan to use it in any commercial or public way. There are online forms for getting a license. "

You ask the relevant society, and they deal with all royalty, permissions etc for you (in a nutshell)


The band you mention will keep a record of all performances and music sales, and submit them to the society, which will then take a relevant fee and pay the artist(s) in question.


In UK, it's PRS, MCPS and PPL depending on whether you are using for recording, performing or broadcast.
John_Cline wrote on 12/19/2007, 6:07 PM
"Can I use "Back-in-Black's" version of the song and add some extra drum beats or something to make it unlike any others? (without lawsuits)"

No.

"I want to create a "soundalike". How do the karaoke producers get away with re-doing entire songs?"

They pay a fee to license the material.

musicvid10 wrote on 12/19/2007, 8:50 PM
My, my, my . . .

This question has been such a hot topic on this forum over the years that the dozens of responses that pop up every time it is asked usually miss the single most basic and definitive solution.

Why don't you ask the publisher for permission to use the song? You can write them an email and ask if you may use their song for your express purposes. Then click "send," and wait for a response.

Then, the publisher and/or label will take one of four possible actions:

1) They might not even respond, in which case you are not entitled to to use the material, even if you feel entitled to do so. (Hint: Don't even utter the words "fair use." You don't want to go there.)

2) They might say something like "sure, go ahead and use it, just give us proper credit." If you have not made this type of request before, you may be surprised at the frequency and friendliness of this type of response.

3) They might say, "sure, you can use it if you pay us a fee in advance, use it only for your described purpose, and give us proper credit." In that case, you may choose to pay the fee asked, in which case you may use it under their terms; or, you may decline to pay the fee, in which case you are not entitled to use the material at all. If you are terrified of the paperwork or new to the licensing process, you can pay a lawyer a couple of hours to do it for you. There are law firms in almost every city that specialize in the arts, intellectual property, and copyright/licensing negotiations.

4) The publisher might say, "no," in which case you are not entitled to use the material. I got turned down once in the past year, and guess what? The sky didn't fall, lightning didn't strike, I wasn't arrested, I didn't have even a pang of conscience, and my project (a "small" one with a $40,000 budget) succeeded just fine without the wished-for material. Amazingly, not one paying customer complained that the song was "missing."

In other words, rather than engaging in fantasy, quasi-legal speculation, or other peripheral discussion about how one can or cannot justify using someone else's material, why not just ask them permission??

In my thirty five years of industry experience, the very worst thing that has happened is the publisher saying, "no."
Spot|DSE wrote on 12/19/2007, 10:06 PM
A+ post, would read again. :-)

Here is my response to those that say "It's not really that big of a deal, I've done it for years and have never had a problem..."

I can run across the freeway blindfolded. I probably could get away with it several times ("Bowfinger" comes to mind). Eventually, that *one time* is gonna get me, and when it does, it's likely to be very bad.
The difference is, when I run across the freeway and eventually (and hopefully successfully) finish, I'm done. It's over. No more worries.
But if you broadcast, replicate, or upload, it's out there forever. When you decide to stop using music at your own risk, your risk *never* ends. You may decide to atone at any point in time, but even after that time, your past may well come back to haunt you. Probably not next month, perhaps not next year, but eventually, the ghost that is still running across the freeway is going to be hit by a semi.