The Truth behind Copy-right Music and Short films

[skrott]

Does anyone have an answer for using Copy Right Music in a short film? My last Festival I sat and watched several short films (Low Budget) and they all had several songs we all know well. I have heard Festivals do not care about the music rights as it is not there problem, and I have heard that since you are not making a profit from the music it is OK.... So what is the truth

[William_Robinette]

Short answer, it is far from OK.

[donatello]

it doesn't matter if you are making $$ or not making a dime or doing it for the good of mankind .. copyright music is protected - you need permission for a 1 min short of a 6 hr short ...
many festivals assume you have permission - most will have you sign the submit application and in fine print you are telling them that your project is clear for all images & music - everything on the screen ... small festivals don't really care as they need projects to screen - and if asked they'll say the filmmaker stated they had rights to the music/images - it's a easy way out for film festival ... i have a friend that used 10 songs of a well known group in his project and he listed in the end titles he had permission .. he submitted it to festivals and he signed on the application he had all permissions .. when the film played on a local PBS station after that broadcast the crap hit the fan - so to make a long story short - he left the US and hasn't been seen for 3 years (he had investors problems as they got stuck with the infringement problems - project was not set up as a LLC or Corp or limited partnership)

[Barry_Green]

The truth is that stealing is stealing. You absolutely cannot go stealing someone else's music. That's the truth.

The rest of the story is: people exceed the speed limit all the time. Not all of them get tickets, but every one of them is breaking the law.

Every festival I've entered requires you to fill out the application form which has a section where you certify that you have proper permission from all copyright holders. So perhaps those films you saw actually got permission? If not, then the filmmakers were not only thieves, but liars as well.

Or they just didn't know that they were misappropriating someone else's copyrighted work and exploiting it to their own advantage without permission or compensation. Which makes them ignorant criminals.

Sorry, not gonna sugar-coat it, using someone's copyrighted material without permission is always illegal and wrong. Get permission, or don't use the stuff.

[skrott]

That brings me to the film, Loose Change it is online and if you watch it in the opening scene it looks like they are using all the Footage without consent from CNN and FOx and Paramount...strange.

Anyway I thought that was the case with the music, Makes me feel that much better about the countless hours spent listing to tracks to find the right score.....Thanks

[Joshua Provost]

Documentaries have different standards for use of footage that fall into the oft-debated territory of "fair use." Using music as theme/score/soundtrack for a narrative film is never fair use.

Beyond being flat wrong, using copyrighted music without permission is plain stupid. You might be able to slip it into a film festival or two, but you will never be able to broadcast it, sell it, or the sell the rights to it. So, you are left with a film that is basically DOA.

There is so much great royalty free music out there and indie composers with reasonable rates, it makes no sense to steal.

[cecil995]

There is so much great royalty free music out there and indie composers with reasonable rates, it makes no sense to steal.


There is alot of choices for royalty free music, but I have yet to find a place that is "reasonable." If there is, please let me know.

[OldCorpse]

Everything 100% true, just a technical note: misusing © music is not theft or "stealing", from a legal point of view it is copyright infringement - the law recognizes the difference:

If you illegally remove a painting from somebody's wall and take it home - you stole it, and the rightful owner no longer has the painting on his wall - you are a thief. If you merely illegally copy the painting and hang that copy in your home, you are copyright infringer, and the original owner has not lost his painting which is still hanging on his wall.

Theft is a criminal offence and can be a felony - copyright infringment has always been something on the order of a tort offence, not a criminal one... laws have recently been changed to toughen up the penalties for infringing, but the distinction is very real.

Infringing can under certain circumstances be economically damaging and certainly morally and ethically objectionable, and nobody should engage in it, but it does everyone a disservice to refer to it incorrectly as "theft" or "stealing". It's not a matter of sugarcoating, it is a matter of TRUTH and accuracy. Still, by whatever name, it is just as wrong.

[skrott]

productiontrax.com

I used them to score my last short ....good music.....fair price and also grageband is getting better everyday

[skrott]

productiontrax.com

I used them to score my last short ....good music.....fair price and also grageband is getting better everyday

[Noel Evans]

Or they just didn't know that they were misappropriating someone else's copyrighted work and exploiting it to their own advantage without permission or compensation. Which makes them ignorant criminals.


Yes, and ignorance is no excuse to the law.

[Alex.Mitchell]

Loose Change did have permission to use all that newsreel footage, but it took the guy a pretty long time to get sorted out.

As far as music is concerned, just grab a copy of garageband and make your own. It's not really all that hard to get something that at least fits in the moment, and if you're not interested in making your own then I'm sure you could find a composer out there who's willing to do it for you.

[intrusion]

if you need sum hiphop you can use mine go to http://www.myspace.com/tipsyintrusion for preview
thin email intrusion222@yahoo.com also http://www.myspace.com/nolaboys is availabel for whatever

[corona]

Well, here's a different view from a guy who went to law school. I can tell you right now I'll get plenty of feedback disputing this one but, hey, as best I know here's the real deal.
There are two categories of use, commercial and non-commercial, in a nut shell, commercial projects are for the purpose of commerce (making money) when something is broadcast it is commercial. Copyright laws govern commercial use, not private (non commercial use).
Remember the the permits everyone is always whining about? there is an exemption, no commercial use, no permit required. Unless of course you are blocking a street or impeding traffic etc.
So the copyright laws protect the owner of the copyright from losing a commercial benefit (money) to someone who is using their property for commerce (money).
Example, there was a very well known actor who is a film maker. The film contained copyrighted music. The actor didn't want to pay the fees, which were required if the film was to be sold (commerce). So what she did was, gave it away...free!.
Perfectly legal since no money was to be made from it. So she sold the poster to the movie and gave the DVD away free with every poster. Pretty slick right? well it gets even better. The profit from the posters wasn't even taxable since she actually wasn't even selling the poster, but her autograph which she affixed to the poster. Selling your autograph, .....not taxable.
In case you haven't caught on yet, the reason there was no copyright infringement was because no profit was intended. The copyright owner had no loss of profit. She made no money, the copyright owner lost no money.
That's the way it works. Like it or not.
Now I'm not taking anything away from the guys saying it's theft etc. They are perfectly entitled to their point of view about this. I'm just going to have to say that taking a painting from someones home is not a fair comparison to using even copyrighted music. Not even close. (please understand that I'm not bashing anyone or instigating an argument, I'm simply giving you the facts about this issue based on what I know about this subject)
So there you have it. Hopefully I have presented another viewpoint, about what copyrights are and aren't, and what infringement is and isn't.
Any questions?

[Duct Tape Films]

Example, there was a very well known actor who is a film maker. The film contained copyrighted music. The actor didn't want to pay the fees, which were required if the film was to be sold (commerce). So what she did was, gave it away...free!.
Perfectly legal since no money was to be made from it. So she sold the poster to the movie and gave the DVD away free with every poster. Pretty slick right? well it gets even better. The profit from the posters wasn't even taxable since she actually wasn't even selling the poster, but her autograph which she affixed to the poster. Selling your autograph, .....not taxable.

THAT is so freaking unbelievably smart, I'm simply whomperjawed. However, let's use You Tube for example, and the vast amount of regularly posted copyrighted material, done so for free. In theory, the person posting it, JoeFilmmaker or DailyShowFan16527, whatnot, should not be able to be held liable for posting copyrighted works, either in entirety, partially, or integrated into new works, if that principle holds true - unless there is, and I can't remember right now, a clause in the agreement you sign when you open the account that in effect transfers liability to you (which would that kind of clause even hold up in court?).

Obviously, You Tube itself, who relies on advertising monies that are generated at the site, probably has more to worry about itself, in terms of proving that they are not generating money from the copyrighted works - which in effect would be derived in a parallel to your story, through advertising, not the movies. Perhaps in court that example might hold up, but the type of shakedown you'll get getting there, not to mention the chunk of change you'll have to spend on lawyers - might it actually cost less money to just license the stuff in the first place? Principle and legal technicalities aside, is the risk of a legal battle worth it? This was a well known actor you say, who probably has enough scratch to fight the battle into court in the first place - even knowing you'll win, personally I just can't see the benefit of integrating copyrighted works into your own without permission, simply because most court cases do not go to court - and whoever has the biggest lawyer, usually wins, and this is aside from the fact that as someone who makes creative works, I would have a hard time doing to someone else what I certainly wouldn't want done to me.

[Joshua Provost]

Yep, productiontrax.com. I have used them in over ten projects so far. Most of the time, for short films, you can get a couple royalty-free tracks for commercial use, for $50-100. When I've gotten more ambitious, I might dig up four or five tracks by the same composer, and assemble a makeshift "original score." There are also tons of tracks udner $10, and they have CD's full of stuff you can use.

There are also tons of indie bands that if you got in touch with them, they would likely let you use their tracks for free. Just browse around myspace and start networking with people.

[corona]

Duct Tape,
The actor mentioned didn't spend a dime on legal fees, and didn't ever expect to. She knows the difference between commercial and non-commercial. In the legal industry things work a but different than most people think they should. It's not really whoever has the "bigger" lawyer wins. If someone starts filing suits and there is no actual infringement issue, the suit will not survive. There is a possibility that the plaintiff (the person or entity bringing the suit) will be labeled as a "vexatious litigant". Not good. That means that next time he brings any suit, it must be reviewed first before the court will hear the matter. That applies to all the suits that are brought after that as well. Filing frivolous suits isn't looked upon with favor in the courts. The courts even award the person or entity being sued, court costs, legal fees etc. on occasion, providing they are asked for.
That's probably more than you want to know. But, my point is this. The question was asked, and I answered it. It is clear what this whole copyright infringement issue is really about.
As for the YouTube comment. This stuff is public domain, not for sale. Non-commercial. As for the issue of advertising being sold by YouTube, I don't think that there is a connection there to the films that the site displays. They are selling advertisement. No link to showing how they collect money for displaying films. Because they simply don't.
Copyrighted music is not secret music, you hear it all day on the radio. It's out there for everyone to hear. Anywhere anytime. Just because someone holds the copyright to a song or other such material, doesn't mean others can't use it for non-commercial purposes. If they don't like that, then they are completely able to keep their music to themselves.
Again, here is the whole thing in a nutshell. Copyrights protect the owners from being cut out of the deal, losing money to someone else who is making money from the use of their music or other material.
So despite popular belief, there is nothing unethical, wrong, or illegal about using even copyrighted music for non-commercial purposes.
After all, don't the creators of these works, music, film, etc. do it so that others will hear it or see it?
Do you know anyone who makes music, art or films or any other creative work solely for their own enjoyment, never with the intent of sharing it with others?
I don't and never have.
In fact all the guys I know, including me, can't wait to show someone, ...anyone, a project when it's finished (if they can wait that long). Most wouldn't really care if the whole world saw it and made no money on it whatsoever. Probably because there is such a passion for the creative process. Face it, we all love this stuff and get tons of satisfaction from producing films or other works that make people think, get angry, get happy, cry and laugh.
Another thing we all have in common is that we DO mind when (even if we don't make a cent) some other guy is making money on OUR work and not paying us a thing for it. THAT is what the copyright laws and protections are there for.

[corona]

Duct tape,
I almost forgot to mention the comment about the agreement transferring liability to you, and if would be be enforceable. Oddly enough, probably not.
Liability cannot be transferred in most cases, despite what you read. Here's the principle. If you did something that created a liability for you (like theft or fraud) you cannot transfer the liability to someone else (normally) There are exceptions to this, but they get complex. For instance if you walk into a store and the clerk causes you an injury. The employer could be liable, and in some cases the employee is liable, depending on the injury and the nature of the injury (criminal or civil). But in most cases you can't, even by a written agreement transfer lability. Don't believe everything you read. Just because it says so doesn't make it so.
Ever been travelling down the road and seen one of those gravel trucks kicking up pebbles all over your car? and displaying a big sign on the back saying something like "not responsible for broken windshields"? Well, news flash...... NOT SO!

[dougspice]

Example, there was a very well known actor who is a film maker. The film contained copyrighted music. The actor didn't want to pay the fees, which were required if the film was to be sold (commerce). So what she did was, gave it away...free!.
Perfectly legal since no money was to be made from it. So she sold the poster to the movie and gave the DVD away free with every poster. Pretty slick right? well it gets even better. The profit from the posters wasn't even taxable since she actually wasn't even selling the poster, but her autograph which she affixed to the poster. Selling your autograph, .....not taxable.

That's extremely interesting, and assuming it's true, bordering on brilliant. But, I'd be willing to bet it's the kind of thing that worked once and won't work again. If license-holders let that slide they'd be out of business soon enough. Copyright law (and good god, we need a replacement!) is ever-changing in this country... almost always in the favor of big business (particularly if that business is Disney).

To throw some useful advice into this thread, we use Music Box (http://www.musicboxmx.com) for a lot of our production tracks when we aren't using a composer, and they're very reasonable to work with.

[corona]

Well, as I see it the laws haven't changed much in their basic application. It's not a thing that worked once and won't work again. Yup i'ts true, the conversation was even taped. Nothing to hide here, she didn't mind at all telling the story on camera.
I got some private messaging on this subject, so I thought I'd copy my response here so you and others could read it as well.
Here it is:

I talked to the girl at the Directors Guild of America in 2006.
I can't remember her name but she was one of the actors on "Buffy the Vampire Slayer". She was on a panel along with the guys who made "My Date with Drew" and "Napoleon Dynamite" before anyone ever really heard of those movies.
She is one sharp girl. I can try to find the specific info from DGA and find her name and contact info, I believe she is still giving that movie away for free.
I also remember that the guys that did "My Date with Drew" only put about $1,300.00 into their film. But when they were negotiating the deal to distribute they had to pay all licencing fees first, because they had used no original music, just stuff they heard on the radio. Those fees originally came to $800,000. but by calling around and begging and schmoozing got it down to a cool half a million. Just to get thier $1,300. film released.
We know that they didn't pay it, the distribution company did. (I assume)
I'll try to find the info for you, keep in touch.


Well, there you have it.
I wish I could get the video tape of that discussion, it was funny as hell, especially when the "My Date with Drew" guys talked about how they didn't even have a camera to make the film (doc) so they went to Circuit City put the purchase on a friends credit card, shot the film in 18 days, and took the camera back to the store before the 30day money back guarantee was up, .... to get their money back.
Circut City changed their policy after these guys started telling everyone about it.
Anyway, there were alot of creative ideas on how to get things done on no money being kicked around that day. Quite brilliant and very funny, the entertainmant value alone was well worth it, trust me.

[skrott]

OK great stuff here...One last thing what about using photos of like Clinton or Obama?
are they ok to use in your film? or do y ou have to deal with the guy who took them?
if so where would one find pictures of them to use that are copy right free

[Joshua Provost]

Corona, you could not be more wrong in your analysis of copyright infringement. Copyright protects that exploitation of works. Whether the exploitation if for-profit or non-profit, public or private use, it makes no difference. Copyright law protects the right of the author to control when, how, and where their work is used, or if it is used at all.

Please don't post such misleading information. I think most rational people understand what copyright is about. It seems some people don't want to deal with the consequences of that (that they cannot simply use whatever they want whenever they want at no cost or obligation). To not respect that, or try to find a way to circumvent it, is to show lack of respect to the creative people that create this content. I would think that someone on this forum, which I would infer means you have an interest in actually creating content of your own, would have such little respect for other people trying to do the same.

skrott, you need to read up on fair use. I recommend the following document: http://www.centerforsocialmedia.org/resources/publications/statement_of_best_practices_in_fair_use/ It's not law, but it is a well-thought and considered practical application of existing laws.

[David W. Richardson]

I agree with you, Joshua. After all, I can't take my Lyle Lovett CDs and start making copies and giving them to all my friends, can I? Even though I'm giving them away FREE and not making a dime, it's still illegal copying.

Read that copyright warning at the beginning of every movie you get from the video store. It says that the copying of a movie is illegal -- it doesn't specify whether or not the person doing the copying plans to profit from it or not.

[Duct Tape Films]

Corona, you could not be more wrong in your analysis of copyright infringement. Copyright protects that exploitation of works. Whether the exploitation if for-profit or non-profit, public or private use, it makes no difference. Copyright law protects the right of the author to control when, how, and where their work is used, or if it is used at all.

Please don't post such misleading information. I think most rational people understand what copyright is about. It seems some people don't want to deal with the consequences of that (that they cannot simply use whatever they want whenever they want at no cost or obligation). To not respect that, or try to find a way to circumvent it, is to show lack of respect to the creative people that create this content. I would think that someone on this forum, which I would infer means you have an interest in actually creating content of your own, would have such little respect for other people trying to do the same.

skrott, you need to read up on fair use. I recommend the following document: http://www.centerforsocialmedia.org/resources/publications/statement_of_best_practices_in_fair_use/ It's not law, but it is a well-thought and considered practical application of existing laws.

Actually, I think he might very well be right, at least in specifically legal terms, about the non-profit uses - which I know for sure includes schools, (ie you CAN use copyrighted material for your college movie - many people don't do that, because they want the opportunity to get into it into festivals if they can; in theory the school can be sued - but the award cannot exceed $200 - so no one ever does) and other things of that nature. He's not talking about "Fair Use" doctrine much at all if I'm not mistaken (edit: just noticed that was to Skrott), which is itself a first amendment issue and completely seperate from the language of copyright law which is Article I section 8 clause 8 and addressed seperately, and while two certainly overlapr, it is not the only factor in determining copyright. It does sound like someone found a crazy loophole in the language of the copyright law itself- although being from Missouri originally (the Show Me state) I'd feel better about the source if it was not so vague as to who it was, could know exactly what his lawyer's interpretation was, and conferred with my copyright lawyer here to see if this is reading was really right.

It certainly may not be the intention of the law, and does give me pause as a creator of works, perhaps this is something that needs to be addressed in a new law, or case law - since this didn't get to court apparently - if the loophole does in fact exist, but as near as I can tell from a quick reading of the language it does verify that it could be read that way - and where no law exists, the rights therefore belong to the "people", okay there are exceptions brought about by other somewhat blanket laws. I'm certainly not willing to find out the hard way, as it would rule out many other avenues - like ANY festival for example, most, if not ALL broadcast avenues, and also share doubts as to whether this is anywhere close to the original intent of the law, which to me is clear, even if the law itself may not be. Technically speaking though, he very well may be right. Morally speaking, and in questioning the intent of the clause, it would not surprise me if something like this eventually makes it's way to the Supreme Court, perhaps wrapped in an online infringement case - which would/could be then probably used as precedent. Until then, it's business as usual for me, file copyrights, pay license fees or use cheap/free stuff.

[Charli]

Clever, clever girl. A note, if you have music composed for your short, be sure to get a signed release for it. We never got Sid to sign off on the Black Angel. I never signed off to release the script. There is something to be said about getting people's signatures.

[corona]

See? what did I say? Didn't I tell you there would be some dispute about this?
Josh I respect you, but have a difference of opinion about this issue.
The thread was entitled " the truth behind copyright, music and short films".
The question was asked and I answered it, in the most straightforward way I know how and to the best of my knowledge.
Please don't say that I'm misleading someone simply because you don't agree with me or the way that the legislation is constructed. I don't believe that is a fair evaluation. Here is your statement:

"Corona, you could not be more wrong in your analysis of copyright infringement. Copyright protects that exploitation of works. Whether the exploitation if for-profit or non-profit, public or private use, it makes no difference. Copyright law protects the right of the author to control when, how, and where their work is used, or if it is used at all."

What was it that brought you to that conclusion? That is very simply not true.
I don't have the time to get into explaining the difference between exploitation and infringement, there is a difference, trust me on this.

You also stated:

"Please don't post such misleading information. I think most rational people understand what copyright is about."

Why is it that you don't? Josh, I really don't intend to sound argumentative here, we have a difference of opinion about this, but ultimately you have my respect.
You are very welcomed to send me a private message or email, I will then send you (or any other readers) some materials that I wasn't able to upload here. The docs were rejected since they were in pdf format. These are some law reviews and copies of the actual legislation. It might be a little difficult reading for most, but it is not unclear on these issues. You can read up on this issue, then we can talk about it and bounce it around. We can even have a phone conversation if you wish.

Duct Tape, you are absolutely correct, you can use even copyrighted materials for educational and private use. That is part of the provisions of "Fair Use" (it's not directly connected to the constitutional protection of free speech that you mentioned in Art. 1. It's in Title 17 of the US Codes where the copyright laws are.)
There aren't really any "loopholes" it is just the way the legislation is constructed. It isn't close to the intention of the law, it is exactly the way it was intended. No Mistake there.
Unfortunately most people derive their knowledge of the law and legal issues from watching television, and not reading for themselves.

Chapel, you wrote:
"I agree with you, Joshua. After all, I can't take my Lyle Lovett CDs and start making copies and giving them to all my friends, can I? Even though I'm giving them away FREE and not making a dime, it's still illegal copying.

Read that copyright warning at the beginning of every movie you get from the video store. It says that the copying of a movie is illegal -- it doesn't specify whether or not the person doing the copying plans to profit from it or not."

Remember what I said about believing everything you read? Well, here it's not what they say that is questioned, but what they don't tell you. For instance they didn't tell you that it may not apply in every case and that there are exceptions. They didn't tell you that part, did they?

About the copying of CD's and giving them to all your friends. You have to keep in mind what the copyright laws do protect and what they don't. Read what I have already written in my previous replies carefully.
One of the factors that is considered when determining whether the use of copyrighted material is fair (as in Fair Use) or infringement is it's effect on a potential market, and it's effect on the value of the material.
For instance, if you copied the cd and gave it to everyone on the planet, then they wouldn't be able to sell any cd's right? They would have lost money, right? Can you see how that would ultimately effect the value of the material, are you catching on yet?
If you don't like my answer, then prove me wrong, show me, I don't claim to know it all, perhaps I could learn something from you.

Josh, again, I don't understand why you are making statements like these:

"Please don't post such misleading information. I think most rational people understand what copyright is about. It seems some people don't want to deal with the consequences of that (that they cannot simply use whatever they want whenever they want at no cost or obligation). To not respect that, or try to find a way to circumvent it, is to show lack of respect to the creative people that create this content. I would think that someone on this forum, which I would infer means you have an interest in actually creating content of your own, would have such little respect for other people trying to do the same."

Why would you say that I have no respect for "other people trying to do the same"? and that I "show lack of respect to the creative people that create this content".
Josh, remember I wasn't the guy who wrote these laws, so don't get nasty with me for telling you the truth.
The actual laws governing copyrights do allow for "Fair Use" and may not be precisely what you may have learned about them by watching television.

Skrott, sorry about this detour. I hope I answered your question or cleared up some issues about copyrights.
If you have any questions, I'll do my best to answer them for you, and if I don't know I can research them. I promise not to take up your thread dealing with anyone who is disputing the information.
Some of these people sound extremely and emotionally attached to their beliefs, despite how ridiculoulsly wrong and incorrect they are. I guess they are entitled to that.

Keep shooting bro.

http://www.dvxuser6.com/uploaded/7292/1174186819.jpg

[ddp]

!.
...... Selling your autograph, .....not taxable.
.......
Any questions?

Isn't "selling your autograph" considered income therefore taxable?
Correct me please but as I understand it, simplified of course, if someone gives you a buck you didn't already have you pay tax on it.

As a songwriter myself, I of course back the "if you use it you should pay for it" mentality. But I'm biased:)

Great DVX site by the way people. Very informative and more then a bit entertaining at times....

DDP

[corona]

Well, DDP, when it comes to the issue of taxation, that's one that I'm very certain of.
This is way off of the subject of this thread so I'll give you an answer to that question, without going into detail. If you would like a more detailed answer send me an email or private message and I can explain it in detail, and give you the legal references, court cases etc. to read and research yourself.
This has got to be the most misunderstood area of law that I can think of.
The answer is NO. "Income" is not taxable in most cases. Are you surprised? Despite the deceit and misinformation you have been exposed to, "Income" as you know it, such as money created as a result of your labor is NOT subject to taxation.

Let me say that, .... I am not offering legal advice here, only sharing the information which is the result of my legal education and personal research. I encourage any reader to use no substitution for your own study and research.


Although this is not a substitute for your own legal research, it is legally accurate and a very informative film based on what I consider some of the most sound legal research I've seen in a long time. (put into a film of this kind), just click on the link below and watch the full length film.

"In a time of deceit, telling the truth is a revolutionary act"
George Orwell

http://video.google.com/videoplay?docid=-4312730277175242198&pr=goog-sl

You might recognize the producer of this film, Aaron Russo, he produced the movie Trading Places with Dan Akroyd and Eddie Murphy, among many others.



About the copyright issue and how it relates to you as a songwriter, I replied to another thread posted by Skrott, in that thread he asked about photos and the use of them in his mocumentary. I inserted some material, exerpted from a law review. It might clear up some misconceptions or at least serve as an informative read.
here's a link to it. http://www.dvxuser.com/V6/showthread.php?t=93348

[DerrickTempleton]

I was told by my teacher who's made films for PBS and Sundance that submitting clip reels and demo reels with copyrighted music is ok.

[corona]

Gunnar, you da man! I listened to your music on Venturetracks, AWESOME!!
Now THAT'S some great stuff! That whole CC deal is a great idea.
It definitely makes sense to film makers. I think that whole concept really works.
Dude, your music is great!

[arrestthisman]

It's always best to err on the side of caution, but to me if "artists" really consider their work "art" then it's subject to the same use of ALL art.

If someone makes a parody of the mona lisa, is it considered THEFT because they didn't paint the original picture? There is a difference between law and morality.

The RIAA is one of the most digusting orginizations on the planet. They rape their artists, and they rape the consumer. DRM is evil. Plain and simple.

If you take an artist's track, burn it on a CD, repackage it and sell it for money, yes, that is stealing, IMO.

Is Stanley Kubrick a thief? He did NOT have permission to use that all to famous piece of music (with a million names: also sprach zarathustra, the most common) in 2001. In fact he didn't have permission for about half the music in the film. That is a FACT, don't take my word for it. Go look it up.

I talked to some local filmmakers in my area to get the straight dope on this, and at least in my area, copyright is hardly ever enforced unless the movie makes a lot of money, and in that case a cease and decist (sP) letter is sent, and the option of retroactive payment is given. I'm sure there are cases of both harsh penalties, and "off the hook" scenarios everywhere.

But back to morality versus law. They just aren't the same.
There is a big difference in using pop music to try and generate more interest in your film, or using your favorite rendition of a classic piece that is "PERFECT" for your scene, and you just couldn't get a reponse back from Sony.

I think filmmakers should always try to obtain permission, but if the music companies are too snobby to even call you to say "no!" I say go for it.

Now I've only done documentaries so far, and in my experience I haven't had any problems obtaining permission for music, and free at that! I've been very lucky so far, but some publishers I spoke with acted like I was almost wasting their time. They seem to prefer small films to just use the music and deal with it later. Again, this is all in my limited personal experience.

But Barry, c'mon, with your logic, Stanley Kubrick is a lying thief. I didn't know him, but I doubt that is true, and if he didn't make 2001, I think the world would be worse off for it.

[DerrickTempleton]

I don't think Kubrick logic applies to people like us...unless we also happen to live in castles and spend endless resources tinkering away at our films.

However I do agree the RIAA does not deserve anyone's cooperation. It's just like immigration; why come here legally when you have to wait in line and be treated like an animal instead of just hop the fence?

On the other hand, you can always tell what movies are good on their own, and what movies rely on someone else's music to sell the product. In high school I made crappy action films but dropped in some Hans Zimmer and it turned out amazing. I wouldn't do that now. But only because I want full credit for my movie being good, not because I give 2 shits what the RIAA has to say.

[Joshua Provost]

Corona, I was a little taken aback that you cite "fair use" as your justification for using copyrighted material in the way you advocated. Obviously, I disagree with your interpretation of fair use, but what matters is that case law really determines what "fair use" is in reality, and it's far from your interpretation. In other words, not being careful about copyrights can be hazardous to your legal health.

BTW, I don't agree with RIAA/MPAA, and I think DRM is just plain bad business. I was when I was younger, a huge copyright offender. I had one of the first MP3 web sites, offering over 1000 Smashing Pumpkins MP3's back in early 1996. A number of my friends got in a lot of trouble (one of them may have been kicked out of college and deported), though I happened to escape any consequences.

Being on the other side of the equation now (being in bands, run an indie record label, indie film production company) has helped me to appreciate the value of everyones work, and the right of each content creator to control their content's destiny. It's morally right, no matter how you read the law of the land.

[bosindy]

Corona, although well intentioned, is incorrect in his analysis (commercial v. non-commercial). The law is unsettled as to copyright and therefore fluid contrary to what has been stated. Copyright means "the right to copy" and if you do so, get permission.

I don't want to go into the law because there are so many different areas that have been touched upon. What I will say is that much of what has been said here does not go to whether someone has a valid cause of action, but to damages. (the law has adapted itself to now include statutory and treble damages to those harmed without economic harm)

As often happens when the subject comes up of copyright on DVXuser, a story is told about someone mailing a script to themselves or giving away a film, and the presumptions start flying. It is dangerous curbside advice to extrapolate off those facts and often the original story is problematic. A little bit of knowledge ....

BTW, I am not sure why it has been said that it is tax free income if you sign an autograph, just ask Pete Rose, he did a little time for tax evasion for not reporting income for signing. Sounds like we have someone from the Wesley Snipes school of tax law. (no offense, couldn't resist)

Finally, commercial use has very little to do whether or not you need to get a permit to shoot and everything to do with local law, insurance, fees and trespass.

[arrestthisman]

I think this thread has overlooked the fact that 99% (a made up number) of what goes on in this country in terms of law is not based on law, but by precedent.

It would be interesting to see a real statistic as to how much litigation goes on based on well defined law, and merely precedent.

[bosindy]

well, actually precedent (or stare decisis) and law are one and the same. Our system is based on British common law and courts are reticent about overturning a previous courts decision (vertically and horizontally) in jurisdictions. It happens, but it is rare. Legislatures make laws, courts interpret them, but it's all "Law." The problem is that many times courts narrow their decision to the facts before them, and they may even go out of their way to say so.

In the case of "fair use" courts have narrowed their decisions to the facts of the case before them and that leaves much uncertainty. You really need a copyright attorney to navigate the waters if you plan on using someone else's work in your film without permission, and most times you will be advised against it. because, well, YOU CAN'T!

We can get a glimpse from cases about how future case will be decided though, and it is very clear that non-commercial purpose alone (as defined by others in this thread) is not nearly enough and it was reckless to suggest here that it would be. Even the most liberally decided cases ( a trio of cases from NY) are no way close (miles away) from what has been suggested in this thread.

So what's the harm? Well when you try to get a distribution deal they will ALWAYS require that you present them with clean title (chain of title) to your film. They will not accept "Don't worry the guy on DVX said it was fair use" (nor will the E&O insurance company) And since fair use is only a defense, you have to invite litigation to clear it. Not to mention injunctive relief and statutory damages (even though you didn't profit from it.)





I

[mr.X]

Copyright is secured automatically when the work is created, and a work is “created” when it is fixed in a copy or phonorecord for the first time. “Copies” are material objects from which a work can be read or visually perceived either directly or with the aid of a machine or device, such as books, manuscripts, sheet music, film, videotape, or microfilm. “Phonorecords” are material objects embodying fixations of sounds (excluding, by statutory definition, motion picture soundtracks), such as cassette tapes, CDs, or LPs. Thus, for example, a song (the “work”) can be fixed in sheet music (“copies”) or in phonograph disks (“phonorecords”), or both. If a work is prepared over a period of time, the part of the work that is fixed on a particular date constitutes the created work as of that date.

[mr.X]

Limitations on exclusive rights " Fair use"

Is the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes,


the effect of the use upon the potential market for or value of the copyrighted work.
the reproduction or distribution is made without any purpose of direct or indirect commercial advantage;

[mr.X]

Limitations on exclusive rights:
1-Fair use
2-Reproduction by libraries and archives
3- Effect of transfer of particular copy or phonorecord
4-Exemption of certain performances and displays
5-Secondary transmissions
6- Ephemeral recordings

[bosindy]

Limitations on exclusive rights " Fair use"

Is the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes,


the effect of the use upon the potential market for or value of the copyrighted work.
the reproduction or distribution is made without any purpose of direct or indirect commercial advantage;


Not limitations, factors to consider and you failed to include all of them

1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2) the nature of the copyrighted work;
3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4 )the effect of the use upon the potential market for or value of the copyrighted work.

Folsom v Marsh, 9 F.Cas. 342. later codified in USC 107.

[Joshua Provost]

bosindy, thanks for the informative words. "No" is something many people do not want to hear, but need to.

[corona]

Hey guys, thanks, I needed a good chuckle.
I can definitely see where you guys are coming from, and don't fault you for that, not in the least. With the limited information and material you are able to access on the internet. Which is understandably designed to discourage the use of copyrighted material.
Don't assume that my intent is to encourage it. I merely answered a question that was asked. You didn't like the answer. That's not my concern.
Again, I simply gave you an answer that was based on more than just the route you chose, the typical "google" search.
Bos, you can't just can't make this stuff up. You might be able to sound convincing to some readers, but not this one.
First, copyright does not mean "the right to copy" are we clear on that? Copyright is the ownership of the rights to the works of the creator or those who have obtained them.
Riddle me this batboy, how would a court award triple the amount of damages to someone who had no damages (economic harm)?
"the law has adapted itself to now include statutory and treble damages to those harmed without economic harm".
Was it you who said that? How did you ever come up with that one?
I assume the same way you came up with your information about the Pete Rose case. Read up on the case, "not reporting income for signing" was not the issue in that case. Why would you lead someone to believe that it was? It looks like you might be trying to sound knowledgable to someone who doesn't know any better, and blindly assumes that there is truth to your statements.

I liked the "Wesley Snipes" comment!, can I use that one?

I remember in law school a teacher gave us some advice about strategy in litigating a case, it was really funny at the time, one of those things that stick in your head even after a few years go by. It went something like this....

If you have a very strong case, and your win is certain.... argue the facts.
If your case is questionable, and not sure you can win .... argue the law.
If you case is a loser, and a win is not expected, .... Call the other guy names!

Guys, thanks for your comments about my... comments. I appreciated the fact that you had an interest. Although we have differed in our opinions, you have my respect.
Although I love a good "spirited debate" I'll save mine for those a little (or a lot) more educated or researched on the subject of law and the issues that are shaped by it.

[Joshua Provost]

Corona, I'll let you slide, but you have to put your money where your mouth is: Free legal support to anyone who takes your advice... and get sued for it.

[bosindy]

Corona,

Law school, does not a copyright attorney make. I am sorry to say, you are holding yourself out to be a copyright expert when clearly you are not (equivocate all you want about opinion). In fact you have been incorrect or insufficient in other areas of the law you discussed such as tax, abuse of process, permit and liability. Maybe you were out sick when they taught these subjects at your law school, I am truly at a loss.

Statutory damages are awarded by the court when there has been an infringement but an owner can't prove actual loss. An innocent infringement triggers statutory damages between $750 and $30,000. If the infringement is willful (as in your example) damages can be increased to $150,000. This remedy is offered only to someone that has registered a copyright. Rather than duel with an unarmed man, I suggest you read "Clearance and Copyright" by Michael C. Donaldson (in fact read it twice)

Once you have read that and realize you need to fashion an agreement to gain these rights, read Corbin on Contracts. I assisted Margaret Kniffin in revising it.(among her many accomplishments she was the first women Editor In Chief of the Harvard Law Review, and not so noteworthy, my contracts professor at St. John's Law)

As a lawyer, I am very careful here not to give legal advice and advise people to use an attorney. I would hate to see someone's one shot at success with a film be ruined because they misconstrued something I wrote on the boards. You don't have to worry about the misconstrued part, but clearly you don't have similar concerns.

I know you are trying to be helpful, but someone might actually follow your advice without knowing the facts. Everyone here now has fair warning; proceed as you wish.

[mr.X]

Fair use makes copyrighted work available to the public as raw material without the need for permission or clearance, so long as such free usage serves the purpose of copyright law, which the U.S. Constitution defines as the promotion of "the Progress of Science and useful Arts" (I.1.8), better than the legal enforcement of claims of infringement. The doctrine hereby attempts to balance the interests of individual copyright holders with the social or cultural benefits that follow from the creation and distribution of derivative works. Insofar as this doctrine protects forms of expression that might otherwise be enjoined as copyright infringing, it has been related to First Amendment free speech protections in the U.S.Constitution
http://i172.photobucket.com/albums/w11/mrx_2007/1968898199.jpg

[mozwald]

Question: How do you deal with underground music in your films?

Music such as "white label" records with no author that include song mashups or remixes?

Here is a good example:
Gnarles Barkley vs Candi Staton (http://www.vitalvinyl.com/album/68353.info)
This record was released on a couple different labels that are either non existant or hard to find...

Do you have to go to both the original artists to ask for permission?[/URL][URL="http://www.dancerecords.com/artists/Candi+Staton"]
(http://www.dancerecords.com/artists/Gnarls+Barkley)

[Sproketz]

Franky I am surprised the moderators here have allowed corona to continue dispensing questionable legal advice without qualifying him as an expert in the field of IP copyright.

If people here would really like to understand copyright as it applies to the entertainment industry, then perhaps the mods should arrange for someone recognized in the field to step in and spell it out. Since this is such an important topic maybe even pay such a person for their time and charge a small amount for people to view it in order to defray the cost.

[Barry_Green]

Problem is, every situation is different. There are some pat answers that apply in most circumstances, but you can never take that advice and run with it. For example, some people will say "if you can shoot it from the street, you don't need permission to include it in your film." Well, the city of Hollywood would tend to disagree; the Hollywood sign is a registered symbol and you cannot go including it in your film without getting permission.

I think Corona's advice is 100% off, and it directly conflicts with and disagrees with everything I've ever heard about copyright. But that doesn't make me right, because I'm not a lawyer. And Corona's not a lawyer. All I can say is -- if you have a serious question about the law, you should be asking a qualified/competent attorney who specializes in that field of the law, and not go asking on an internet discussion forum.

[David Jimerson]

Well, Barry, as a guy who graduated from law school and took a state-sponsored quiz to that effect, I can tell you that you're not off base in thinking that just about everything Corona posted is approximately worth the paper it's printed on.

But then, you should never place much stock on what you read on a website without checking with the relevant professionals first, no matter what someone holds himself out to be.

[bosindy]

I think Corona's advice is 100% off, and it directly conflicts with and disagrees with everything I've ever heard about copyright. But that doesn't make me right, because I'm not a lawyer. And Corona's not a lawyer. All I can say is -- if you have a serious question about the law, you should be asking a qualified/competent attorney who specializes in that field of the law, and not go asking on an internet discussion forum.

Amen, speak to an attorney because everything is fact specific and that is the advice I have given two people via PM. Also the law is unsettled so it can become a probability game. Many lawyers (including myself) are not competent to answer complex copyright, it is a subset of the law that is a specialty. Some even say, the only attorneys you can rely on are in New York, LA, Toronto and London (not sure why London, but that is what I've been told.)

There are many free resources for artists states provide. In California there is California Lawyers for the Arts (LA and San Fran). I encourage everyone to get the Donaldson book I mentioned earlier. It may not give you all the answers (it will some) but it will give you the ability to ask the right questions.

[AshG]

Wow, pretty amazing amount of incorrect info in this thread. Corona, your posts may be concerning certain exceptions that you have personal knowledge of but I can assure you, they are not generally true. Most your "legal" advice is so off it is laughable.

I am not a lawyer but I have worked with many music labels and have even been vice-president of an indie label. There are many kinds of royalties, rights, etc. etc. the fact that something is non-commercial has ZERO to do with most everything. The example you use of selling a poster and giving away a DVD does not make it legal, it just means that the owners of the publishing decided not to sue them. When you put copyrighted music in any physical form you owe mechanical royalties, period endstop. Fair use? That is thrown around a lot but unless you a filming a doc in a public place that has music bleeding over from a radio station that is not easily identifiable or prominent....you can forget that crutch.

As far as the legal damage done for using copyrighted music in a non-commercial way... uhh....again...way way way off man. Let's say you have a reel here on DVXuser and it is awesome... so, I decide to use it in my production reel to enhance my reel. Someone sees it and offers me a job directing a $5,000,000 movie. I didnt sell that reel did I? Have you been damaged? Please dude...stop spreading info that might get some poor kid in trouble.



ash =o)

[arrestthisman]

To quote Woody Allen, I think this all sounds like Mental Masturbation...

Copyright is very clear in law, and very grey in practice. If you want to be sure, get a lawyer. If you don't want to deal with it, get a producer who doesn't mind working with needle drops.

It's not hard to ask for, nor obtain permission for most music. Provided it isn't this weeks top #1 song.
That goes double for documentaries.

In m circumstances, working at ultra low budgets, under my legal counsel, I was advised off the record to seek permission but if I heard nothing back in time for the deadlines stated in my attempt to contact, to use it anyway and prepare for a cease and decist (my spelling sucks, I know) letter, and take the song out.

For higher budgets that certianly would not fly.

The only thing I'll add is regardless of the law, the publishers are scum. We CAN talk about the morality of copyright, but only the real lawyer on this thread should probably be giving advice, and even then, to everyone here: GET A LAYWER or someone who knows one.

Entertainment lawyers often work pro bono for low budget filmmakers because it's not a lot of work for them (provided you don't overstep your gratis bounds), and it's in their interest to help you in case you make it big. Then they charge you an arm and a leg. And, it was then worth their pro bono time :)

Back to the publishers. The artists rarely see even a small percentage of the money filmmakers pay to get the songs in their movies. The artists always beenfit from exposure, but according to most of their contracts they don't even have the right to tell a filmmaker it's okay to use their music.

I have a friend who's a lead in a small band, but they have two albums, and are nationally distributed, so he knows the ropes. And the smaller the band, the smaller the cut they cut from THEIR OWN music. But that's the nature of the business. The RIAA has made it so you have to sell your soul to make a record.

It's a real shame. That's why I get a bit upset when people ride the high mighty horse about copyright. Unless it is a HUGE band, they don't get a say in who gets to use their music, AND they don't get much of a cut. The band isn't screwed by copyright violators. they're screwed by the very companies they got in bed with. And No it isn't their fault. Most musicians will sign anything you put in front of them to get an album made or distributed. This is all a generalization, but I believe it to be true from what I've seen directly. Don't take my word for it, though.

The best way to learn about the music situation is to meet up with a local band with moderate success and find out what the biz is like straight from the source.

[kledster]

if you're just making your own personal dvd or putting your movies online then i wouldn't worry about adding CR music. but for festivals, i wouldn't even risk it.

[GGF NYC]

Im curious about this as well. I was planning on making a 35-40 min short. It's a drama and I was all set on using a certain song from the 80's by a group who is no longer around today. Can someone give some info on the cheapest and easiest way to be able to use this song in a short.

[Joshua Provost]

Im curious about this as well. I was planning on making a 35-40 min short. It's a drama and I was all set on using a certain song from the 80's by a group who is no longer around today. Can someone give some info on the cheapest and easiest way to be able to use this song in a short.

Use BMI or ASCAP search functions to find the publisher of the song, and work with them to get permission/pay any related fees. The publisher should also be listed in the liner notes or the tape/LP/CD, if you have it, but that information may be outdated, as rights to songs can be bought/sold/passed around. BMI or ASCAP should point you in the right direction.

If the band isn't repped by a publishing company, that doesn't mean you are free and clear, it just means it'll be harder to reach them.

[Huy Vu]

if you're just making your own personal dvd or putting your movies online then i wouldn't worry about adding CR music. but for festivals, i wouldn't even risk it.

Making your personal DVD, yes, putting movies online...no.

[PaPa]

hmm, very interesting topic.

however the majority of hte professors at my film school recommend to stear clear from using copyrighted music, however they also made it clear that if one needed ot use someone elses music, for purposes of film fests, its dooable, is done often, and is generally accepted. ( coming from the judges )

[bosindy]

I am clearing a song possibly being performed in my spyfest short and the publisher sent me the following questions. If I was using an actual recording, I would have had a professional music clearance company do it for me bc it is more complex. I though it may interest some of you to see the questions asked. The song was found through ASCAP, I contacted the publisher and they asked the following questions:

Here's the info I'll need to get you a quote. In parentheses below are descriptions of
what I need in that field. Please ERASE and fill in your reply.

YOUR NAME/COMPANY NAME/ADDRESS/PHONE/FAX:

LICENSEE NAME/COMPANY NAME/ADDRESS/PHONE/FAX (if different):

SONG:

WRITER(S):

PUBLISHER:

PROJECT TITLE:

USAGE TYPE(S): (i.e. Visual Vocal, Background Instrumental, End Credits, etc.)

TIMING OF THE SONG:

MEDIA: (i.e. Free & Basic Cable TV, Film Festivals, Video, etc... where will you be showing it?)

TERRITORY: (i.e. US only, US & Canada, World, your city only, etc...)

TERM: (how long do you want the rights for?)

START DATE: (when does the term begin?)

DESCRIPTION OF SCENE:

BRIEF DESCRIPTION OF YOUR PROJECT & BUDGET:

If you are using the song in more than one place, be sure to specify the usage type & duration for each.