Random copyright question...?

FrigidNDEditing wrote on 12/16/2011, 2:19 PM
Not that you guys are IP specialists or anything, but say I have a project I'm working on for a private individual ( not a business ), and they want to use music in there which has been copyrighted, I know that it crosses lines for me to render this into a synced video and audio file and then sell it to them. What I am curious about is this. What if I just edit the video in a project file, and then they pay me for the editing, they come in and I let them drop the music on the timeline, and render it themselves for their use. Is that in violation of copyright as you can see? (I know you guys aren't lawyers and I don't accept your input as such, just curious if there's something blatantly off about it?).



Tim20 wrote on 12/16/2011, 2:39 PM
From my days of dabbling in music recording and having many a spirited discussion with my friend a copyright lawyer I would say in my non-attorney opinion.....YES. You are using symantics to try and skirt the law.

In the truest sense to marry copywritten music to video requires a sync license even it it was for home use. Are the copyright police going to come knocking on the door. No.
But what you are doing is essentially becoming a paid accomplice. Is anyone going down with the copyright police? Probably not as long as you trust them to not post it on the internet or start selling copies.

So the correct answer is to tell them you cannot ethically do that without a sync license.
Liam_Vegas wrote on 12/16/2011, 3:15 PM
This might help answer this.

I've never used copyrighted music in any for-profit work. I think that's still a good rule to work by. The approach you describe above seems to be coming from "I didn't touch the keyboard... the client did"... and that's a cute but probably irrelevant excuse.
farss wrote on 12/16/2011, 3:23 PM
I once posed a similar question to APRA (the AU body).it wnet something like this:

Q: My client wishes me to sync this tune by Tina Turner to vision for performance at a public event, is this OK?

A: No, unless they own the rights. The venue does have a license to play music though.

Q: So I just cannot sync it to music on the one piece of media?

A: Correct.

Q: If their automation system plays the same piece of music from a legally obtained CD as the video plays that, is perfectly legal?

A: YES and please stop wasting out time. No one will give a &^$% about this anyway.

The funniest thing of all was it turned out the client did own the local rights to the Tina Turner music. They got seriously unhappy that I'd even questioned this and went elsewhere. Dumb, dumb, dumb, Bob. I might have a red Ferrari in the driveway.

My take on this ever since, if I'm doing at as paid per hour work the issue rests with the client. If they can sleep well at night then so can I. I advise them of the dubious nature of what they're doing, offer them any of my library of royalty free music at no additional cost and leave it at that. After all I'm not a lawyer so who am I to advise them on law one way or the other. I've given them fair warning that they should check the legality of what they're doing and leave it at that.

Tim20 wrote on 12/16/2011, 4:22 PM
But farrs you didn't actually sync your paid for video work to the music correct? And if they played the video with the music you did nothing wrong. The liability is with them.

He is asking if he just turned a blind eye so to speak on his equipment and allowed the client ot do what they like would it be ok.

In the world of just contract law a judge would say emmm no. He isn't renting the use of equipment he is selling video editing services.

That argument has even been tested and lost with internet service providers....the hey I was just providing them an outlet and it was their obligation to make sure of copyright issues. MP3.com and Napster to name the early ones.
farss wrote on 12/16/2011, 5:58 PM
"But farrs you didn't actually sync your paid for video work to the music correct"

I ended up losing the client because I was such an idiot so the question is moot.

"In the world of just contract law a judge would say emmm no. He isn't renting the use of equipment he is selling video editing services."

Yes, you have a good point here however you are (correctly) pointing out that this is a civil matter, not a criminal matter. Yes, he is selling a service, he is not selling the finished work, the client own the copyright in the work. As an editor you are "work for hire", you generally have moral rights to the work (credits) and that's it.

"MP3.com and Napster to name the early ones. "

The argument against "carriage services" is to my mind dubious but yes, the courts in some places have accepted it but of late down here they've been denied. Still the argument is that the carriage service derived a financial benefit from illegal downloads and they had it within their capacity to do something about it and didn't. Even more to the point their entire business model was based on facilitating illegal music or video sharing.
As a video editor none of this applies, our business model is quite different. We can earn our income regardless of wether or not the client wants us to use a particular piece of music. One would also reasonalby ask what loss has the rights owner incurred. That's probably why the man from APRA said no one is going to care, the rights owner could incur a considerable legal expense and get a judgement of $10 in their favour. Compared to the losses from piracy in Asia it just doesn't make any sense for them to persue the matter.
If as it turns out my work would have been nationally broadcast the rights owners would have got a dime from that for sure.
I'd also point out that in a contract one can insert a warranty which transfers all responsibility to the specified party. This is probably not a bad thing to have anyway. In the case that I've raised my client may well have held the Australasian rights but would have been in deep trouble if the work had been rebroadcast elsehwere. I can see no way that I could be held accountable for that.

In the specific instance of syncing music to a client's video which if it is only for personal use it is within the realm of permissable under copyright law then the same applies. If they (the client) then proceeded so show it for profit in a cinema or broadcast it, not my problem. The same would apply if was in the wedding video business and held the appropriate APRA licnense to sync client music to video. If the client went and uploaded it to YT and the rights owner makes a fuss, not my problem. I have done this, given the file(s) to the client and said if you upload this to your channel on YT and you get a clip over the ear, not my problem.

Can I also point out that the original question included the following phrase "say I have a project I'm working on for a private individual ". As far as I know this is perfectly legit, so long as it remains for their private use. Obviosuly one should warn the client, preferably in writing, of this restriction.

I am on the Australian Copryight Council's mailing list so I know about every copyright case that is fought out in our courts. Very few (none?) of them have anything to do with our line of work. One about music related to a derivative work and some confussion over who owned the copyright and if that was a legitimate transfer of copyright. The other relates to ISPs and file sharing. The rest over the last few years relate to building plans, choreography and the like.

TheHappyFriar wrote on 12/16/2011, 8:16 PM
If it's a "work for hire" you'd think you would be ok in the US (that's what we're talking about, right?) but it doesn't seem so. When I worked at a TV station I was told we could use any music, period. Didn't matter where it came from. From my current public sector job, a big difference I know of is that if I do something wrong in my public sector job, it's my direct employer's legal problem. I could still be disciplined but that's just by my company. If I did something and someone got hurt/stolen from/etc. they'd have to sue my employer. A private sector job is different, you can be sued even if you're just doing what you're told. IE throw a music track in there. It puts you in a strange pickle: the person ordering you to do something you assume knows what they're doing, but if they're wrong you can get in trouble too. Even if you could win in court, just the costs alone could bankrupt you.
Baron Oz wrote on 12/17/2011, 7:49 AM
Doesn't the responsibility for clearing any 3rd party assets lie with the producer? If someone (the producer) is paying me (the editor) to create something and supplies me with footage, an image or a piece of music and says "use this", isn't it their responsibility to see that all licensing and royalties are satisfied? If you area one man band and make all content decisions, I would think you are responsible. If you are part of a team, or hired and paid by someone to implement their content choices, I would think they are the responsible party.
musicvid10 wrote on 12/17/2011, 10:43 AM
These discussions come up a few times every year. Lots of speculation, and as we've found out, the rules in one country or circumstance have little or no bearing in another.

There is one piece of direct advice, however, that is always safe, and is applicable everywhere afaik:

Just ask permission first. The very worst they could do is say "no".

And it is amazing how often the publisher will say "sure, go ahead" or charge a pittance for a one-time limited sync (or performance) agreement. Having some kind of professional membership never hurt a bit either . . .

filmy wrote on 12/17/2011, 12:11 PM
This is "funny" with the recent OT: Wedding Videographers Beware thread covering most of this. I have said more than once SoFo needed to, Sony should pin a copyright thread at the top.

I am going to double post here as I was just putting this together for the other thread:

Here are a (very) few links over the years from like discussions. I miss Spot but am glad to still have Bob, Jay and Kelly here.

Church Video Music Rights - 7/23/2004
Use of Music in Wedding Videos - 7/23/2004
Amateur Production: Licensing of Music Needed? - 8/10/2004
Music Rights - 8/25/2004
What is a normal distribution deal? - 1/27/2005
Fair Use - 1/31/2005
Circling Sharks and Copyright - 10/24/2005
Reception music illegal to resale? - 1/2/2006
OT: BMI sues and wins... - 3/21/2006
Free comic - Bound By Law? - 6/20/2006
copyright question...is this infringement? - 3/2/2007
farss wrote on 12/17/2011, 3:02 PM
"Here are a (very) few links over the years from like discussions."

In the thread from 2007 once again John Meyer was the voice of reason.

One thing I'd like to clear up because it does affect us is this.
I previously mentioned "work for hire". Someone who is work for hire is not an employee, you are a contractor. Most production companies employ very few people but may have 100s if not 1000s of people from time to time doing work for them as work for hire. When you get a 1,000 extras for a scene in a movie or 200 editors to work on Big Brother then all of them are usually work for hire.
Now anyone who does creative work has some form of copyright over their work. As you are paid to do the work e.g. edit, compose, perform or design you do not retain any financial interest, apart from being paid, you signed that away, but you do retain the moral right of attribution over your work. This can affect all of us here. If you're asked to edit something or mix the audio or whatever, even if it's for a no money indie production make certain your actual role and what your moral rights will be are agreed to upfront.
I've been involved in one production that has left me with a bit of a bad taste in my mouth. It's not about the money and I really cannot be bothered making a fuss about it. However if I was much younger and trying to build a career in this industry I probably should have made a signficant fuss over what happened.

A tip for anyone planning to use music or other IP in a production.
You don't have to pay for the rights upfront, the money involved may well be beyond your budget. You can secure the rights for a much smaller fee and negotiate the full fee in a legally binding contract. Then when you've finished your movie and go looking for a distributor the distributor pays for the necessary music licenses as part of the deal. To (hopefully) state the obvious it is way, way better to have the costs defined before you roll the cameras. No distributor is going to pay you money for a movie and on top of that have to negotiate open ended license fees especially as the rights owners can very well realise they have someone over a barrel and ask for quite absurd sums. Of course it is way, way better to have a distributor signed up before you roll the cameras but a lot of times this doesn't happen.

filmy wrote on 12/17/2011, 8:03 PM
I actually think the first voice of reason was winrock who implied that a Fortune 500 company should not be asking the question in the first place.

Also I want to point out that Bob mentioned that "you do retain the moral right of attribution over your work" as a work for hire you need to take it into context that "your moral rights will be [are] agreed to upfront." This goes beyond just a work for hire in the U.S however, because in the U.S there are no moral rights provided with copyright.

And it is very common for editors to use rough music guides to edit with. Music licensing most often comes after the film is complete. (Music videos and concerts aside) With that in mind, and somewhere over the years Imentioned this, many companies have different licensing schemes for what it being done. Many allow free use in student films and for film festival screenings. Other may charge a very small fee. Some also have a slightly backwards way of doing it - Freeplay music for example changed their business model from being free forever for anything to free to only major studios and networks and paid for most everything else.

"have the costs defined before you roll the cameras" = pre production planning and a budget. If you know you will be using any sort of music you should have a set amount in the budget. Many distribution deals are made by a process know as film completion. It means what it implies but there are companies that specialize in the process. They look at a project and decide if they want to complete it - most often this means the cost of post production will be covered. Fine tuning the edit, audio editing, music clearance, release prints and seeking distribution. The good part is you get a final film, the bad part is you add another whole layer of people who get money off the top before you see anything.
filmy wrote on 12/21/2011, 12:44 PM
So I was flipping through the channels (in the U.S.) and came across today's episode of Judge Joe Brown. The case was by an artist who wrote a song for a movie (Answered an ad on Craigs list) and sued the director because he had not been paid yet.

The interesting (mis-)information that Joe Brown gave out as fact was when the director was explaining that the film was nearly complete and has used temp tracks. The distributor picked it up and provided money for post production. The license fees were too expensive so the director asked on Craigs list for up and coming artists. The advance money form the distributor went to mixing and fine tuning the edit so the agreement with the artists was the money would come in after 90 days of DVD release. All of that is standard - but here is what the "judge" said (Paraphrasing) - "Well that is not the way it works at all. When the distributor gave you money it was to pay for the music rights. You just said it was for post production and that is what you were doing." The director tried to explain but the judge found in favor of the artist and the director needs to pay.

What is wrong with this overall is typical - TV courts trying to deal with I.P cases along with all the "basic" disputes. I have not seen a one who actually understand copyright and I.P (Judge Judy come to mind in one case where she said that a photographer had no copyright claims once their image was on the Internet - "When it is on the Internet it becomes free" was part of her ruling) In this case the contract did not specify about ROI, only that 90 days after release the artist would be paid. So on a purely contractual level the payment was due, and that was a fault of the actual contract. The problem I had was not the final decision based on contract law but the pre-decision comment that 100% of post production money in a situation like this automatically covers all expenses. What is worse is they found the director liable, not the distributor - they are the ones who would be paying out things like royalties, not the director.

FYI - the amount paid, based on the contract, was 500 for the syc lincense and another 500 for the rights - so $1,000.00 total.