Music licensing, who's responsibility is it?

[egproductions]

OK, so there are actually two questions I have regarding music licensing:

If I am hired as an editor and i use music, is it ultimately the producers responsibility to ensure all music is licensed? Is it enough for me to tell the producer, this music requires a license to be purchased, here is where I got it from...xxx. I'm not the one actually putting it up for public consumption. Even the producer might not be putting it up...it could even be the client at times. Whos shoulders bear the weight of responsibility?

Am I allowed to use non-liscenced music in a wedding video for a client if the video is given directly to the client and the contract states that they do not own the license to any music used throughout the video and may not upload the video for public consumption on youtube, vimeo etc. and I do not bare any responsibility if they get sued and so on... I think its still illegal to use licensed music for their wedding video but if they go against the contract and upload the video and then get sued would I still have liability? Not looking to break rules. How do others avoid legal issues when it comes to this stuff short of not using popular or buying licenses.

 

[Cassius]

The first question is one you have to ask the producer. Generally you wouldn't be responsible for the music because you don't decide what music goes in. Unless you're also in charge of that. If the project is small enough, then you might be. If you're selling a final product as a one man team you need to make sure the licensing is taken care of.

Making and distributing copies of copyrighted material is illegal. If I sell someone a car with a note that says this car isn't actually mine we both get in trouble. As the professional hired to take care of this you have the ultimate responsibility. Now, if you have a work for hire agreement that very clearly states you only do what you're told, which is edit, and that the owners of the actual video are the only decision makers then it's off your back. But if you ask your wedding clients to sign something like that you might as well stop advertising, because no one is going to hire you again.

Realistically no one is going to sue someone for a soundtrack on a personal wedding video. So that's not something to be worried about in the first place. But if they upload it to an online service there's a good chance the audio will get pulled by the robots that look for this sort of thing. Not a fun experience for anyone, and certainly embarrassing for the couple. It's really easy to find royalty free music. If you want to use popular soundtracks look into licensing. Some groups are pretty good about that.

To answer your last sentence, other people get around it by either getting the licenses (therefore not 'getting around it') or by ignoring the issue altogether and using copyrighted material. Just be aware that it is illegal to do, even though nothing will probably happen.

Also note that you asked about weddings. If you're shooting something something for marketing material, narrative, documentary or anything that isn't personal and may be shared never, ever, ever use unlicensed music. It's a simple rule, and looking for complicated ways around it doesn't work.

 

[Allan Black]

If you select the music and the producer agrees to you using it in his production, then it's his responsability to obtain permission via licences and pay any fees.
You'd better get that sorted out before you use it, in case.

Same with a client, he's paying you and owns the video, realistically they both should give you copies of the receipts for their licences.

There are thousands of wedding videos using unlicenced copyrighted music, avoiding paying any fees and when it comes to the crunch, they're breaking the law. There are 2 permissions, the singer/songwriter and the record company who owns the CD.

If you include any copyright music, you never know if and when you might get a pay up or summons or legal action. The problem is it usually takes some months just to get a reply from the owners and their record companies, so many give up and use soundalike tracks.

Cheers.

 

[Noiz2]

AS folks have said the answer to the first question depends on your contract. I always specifically state that it's up to the producers to license any music they hand me. If I find the music it's on me, but I'm only going to use royalty free or Public Domain so...

The answer to your last question is no. You can't use it with out permission and it makes no diference how you use it. What the consequences are varies. Some countries have criminal sanctions and you can actually get jail time. Most places you would be limited to loosing your business and or home. It's true that there haven't been a lot of prosecutions but the RIAA, when they do go after people tend to do it with a very heavy hand.

Doesn't seem worth the risk really.

 

[Richard Crowley]

If I am hired as an editor and i use music, is it ultimately the producers responsibility to ensure all music is licensed?

What was your arrangement with the producer (or the customer)?
Did they hand you the music to use, or did you select the music?
What was their concept for music? Did they have a budget to pay for music licenses? If you chose the music, how did you know it was in their budget?

I would always have a document that says "Customer provided music as documented in the Cue Sheet and acknowledges that they are responsible for licensing, permissions and royalties before any distribution or exhibition, etc etc." Or "Per customer's approval, production includes music as documented on the Cue Sheet and acknowledges that they are responsible for licensing, permissions and royalties before any distribution or exhibition, etc etc."

Is it enough for me to tell the producer, this music requires a license to be purchased, here is where I got it from...xxx.

There is a formal (even legal) document called a production music "Cue Sheet" that documents exactly what music was used, where it came from, who owns it, how much (and/or how often) it is used, etc.

I'm not the one actually putting it up for public consumption. Even the producer might not be putting it up...it could even be the client at times. Whos shoulders bear the weight of responsibility?

Many places (festivals, broadcast/satellite/cable networks or stations, etc.) won't accept a production without the cue sheet and proof of license. Even if the production has paid for the master license (for the actual recording) and the "sync license" (for editing the music into the film/video), there is also a matter of paying broadcast (or internet) fees for broadcast/exhibition/distribution/streaming, etc. If you want to "fix responsibility" it is whomever is responsible for the broadcast/exhibition/distribution/streaming.

Am I allowed to use non-liscenced music in a wedding video for a client if the video is given directly to the client and the contract states that they do not own the license to any music used throughout the video...

No. And copyright owners have made spectacular legal examples prosecuting wedding video producers for doing exactly that. In the immortal words of Inspector Harry Callahan, "Do you feel lucky?"

and may not upload the video for public consumption on youtube, vimeo etc. and I do not bare any responsibility if they get sued and so on... I think its still illegal to use licensed music for their wedding video but if they go against the contract and upload the video and then get sued would I still have liability?

You are personally liable (and your company, if you have one) for this quite clear violation of copyright law. You cannot legally hide behind the customer and blame it on them.

Not looking to break rules. How do others avoid legal issues when it comes to this stuff short of not using popular or buying licenses.

They use licensed production music or else they just gamble with their job and their assets. Good luck.

 

[egproductions]

Thanks for all the really quick feedback on this topic. In short because I don't typically handle distribution, I let the producer or client know that before you put this video up anywhere or own the rights to it, you have to purchase the liscence to the music I seleceted. Here is the site and how much it costs. In the future I will work ona way of legally formalizing this such as a contract and a cue sheet as mentioned.

For my other wedding clients...I still need to figure out what I will do. I'm not trying to hide behind my clients, I simply am telling them in a contract that I take no responsability for them posting the video publicly and that they shouldn't. Even if I go them to do that much, then at least I could purchase single use liscences.

 

[Richard Crowley]

For my other wedding clients...I still need to figure out what I will do. I'm not trying to hide behind my clients, I simply am telling them in a contract that I take no responsability

You explicitly can NOT do that. No "contract" relieves you of your legal responsibility.

for them posting the video publicly and that they shouldn't. Even if I go them to do that much, then at least I could purchase single use liscences.

Oh, no, it is much worse than that. You cannot even hand over a single copy to them even for private viewing in their home. The act of editing the music into the video makes you legally liable. But, as others have said your chances of getting caught may be relatively small unless they post it on YouTube, etc. (which is completely beyond your control, and which your "contract" is a useless "protection").

With a production contract with a media producer of provable experience, you can argue that they knew exactly what the licensing requirements were. With some random couple getting their wedding video, nobody will take that seriously.

 

[egproductions]

Not quit sure I understand. Why is it wrong to purchase a single use liscence and make that single use my wedding client's DVD? I state in the contract it's single use and not for duplication. Why would I be liable for when they duplicate it? I personally followed the licensing requirements, they didn't

 

[Richard Crowley]

Yes you are correct. IF you have proof of the appropriate license, then YOU are covered. If THEY subsequently distribute/exhibit/etc. copies of the production without appropriate licensing, then THEY are liable for unlicensed "distribution"

 

[ggrantly]

Whether you think you are responsible, or not, for using music in a video doesn't matter. What matters is that if some big **** company decides to sue at all, they are going to name everyone involved; everyone. I've been in various businesses for a long time, and I'm no lawyer, but i can tell you for a fact that when there is a possibility of multiple responsible parties, everyone will be named. The reason for this is so the actually responsible party cant squirm under a rock, blame you, and end the suit. Instead they just sue everyone. It doesn't matter that you didn't make the decision, and you claused your contract that the producer is responsible. Once you are named in a suit, you are gonna have to defend yourself, or you will lose the suit by default. Lawyers that do infringement cases charge a lot of money, even if you are right, they still want to be paid. So it's easy to rationalize who is really responsible, but the prosecuting lawyers won't see it your way.

Grant

 

[Steve House]

Thanks for all the really quick feedback on this topic. In short because I don't typically handle distribution, I let the producer or client know that before you put this video up anywhere or own the rights to it, you have to purchase the liscence to the music I seleceted. Here is the site and how much it costs. In the future I will work ona way of legally formalizing this such as a contract and a cue sheet as mentioned.

For my other wedding clients...I still need to figure out what I will do. I'm not trying to hide behind my clients, I simply am telling them in a contract that I take no responsability for them posting the video publicly and that they shouldn't. Even if I go them to do that much, then at least I could purchase single use liscences.

The only effect the client posting the video publically has is increasing the likelihood that you'll get caught for the infringment. YOU are the one that incorporated the music into the video and then sold or gave the resulting product to your client. That means it's YOU, NOT YOUR CLIENT, that has the responsibility for obtaining the necessary licenses. In fact, because licenses for copyright materials are not transferable, your client can't legally obtain the licenses on your behalf. Whether the final product is for a commercial client or a wedding client, the buck stops at your desk - YOU must obtain the licenses for all music that you use. Now if you're an editor on a work-for-hire contract working under the direction of a producer, the producer is legally the creator of the final product and your liability is somewhat reduced. But there are no two ways about it - for your wedding and other clients, if you use copyrighted materials in the videos you create for them, you (not them) must license all the music you use except music you have personally composed and own the copyright to. It doesn't matter what they do with the video after you deliver it to them - it's irrelevant whether they post it to YouTube or just put it in the dresser drawer and never even view it - if you use music you must license it.

 

[Steve House]

...
Same with a client, he's paying you and owns the video, realistically they both should give you copies of the receipts for their licences.

...

Not true. The creator of the video owns the copyright to it. What the client gets in return for paying your fee is a license to use the video but unless you have transferred the copyright in writing you still own it. What the client owns is a licensed copy of the video and the physical media it came on. As the creator of the video, you are the one who must obtain the licenses for the music you use. Even if you do ultimately transfer ownership of the video to your client, because you are the creator of the work that incorporates someone else's intellectual property, you are still the one responsible for licensing all the music you have used in it. Your client can't license it after the fact and a license that they already have that gives THEM the right to use the music DOES NOT give YOU a similar right to use it in a production you are creating for them.

 

[Doug_EX]

Not true. The creator of the video owns the copyright to it. What the client gets in return for paying your fee is a license to use the video but unless you have transferred the copyright in writing you still own it. What the client owns is a licensed copy of the video and the physical media it came on. As the creator of the video, you are the one who must obtain the licenses for the music you use. Even if you do ultimately transfer ownership of the video to your client, because you are the creator of the work that incorporates someone else's intellectual property, you are still the one responsible for licensing all the music you have used in it. Your client can't license it after the fact and a license that they already have that gives THEM the right to use the music DOES NOT give YOU a similar right to use it in a production you are creating for them.

I think you're right! The creator/producer is 100% responsable of his work. You just can't put the responsability on your client...legally ans morally speeking. They (clients) don't care and don't understand all of the legal issues that comes with video production.
Unless you can prove (with paper work) that they are the producer and not you (but then again, not very professionel), YOU are responsible!
Even if it's only for ONE copy, you have to understand one thing...
A music track in a video is like any element within the process of this same video...Did you paid for your camera, your pc, you editing software, your desk? nothing is free! Let's face it, if you or your client wants a specific song it's because they think it will increase the quality of the production...so why wouldn't the producer/creator of the song be paid???
Another thing, let's say someone (that don't even know you) takes without permission one of your video, edit it and makes some money with it...you sure would be pissed off...no?

 

[Doug_EX]

Even if you don't get caught (I really doubt that someone would get caught for such small production), you have to be professionnel...it's not a thing I would do.
If you do a corporate video someday with a serious client and you make them sign this type of contract, i'm almost sure they won't do business with you again.

 

[Allan Black]

If I am hired as an editor and i use music, is it ultimately the producers responsibility to ensure all music is licensed? Is it enough for me to tell the producer, this music requires a license to be purchased, here is where I got it from...xxx. I'm not the one actually putting it up for public consumption. Even the producer might not be putting it up...it could even be the client at times. Whos shoulders bear the weight of responsibility?

I read you as a solo operator and a 'new employee' of the producer who produced and owns the actual video he's contracting you to work on.

In our companies case with 12 permanent employees, some of whom selected copyright music tracks for use in our clients video productions,
our employee was not required to apply for the licences, pay the fees or be legally responsible for the use of the music.

Sometimes 2 or more employees worked on various music selections for the same video.

Applying for all the licences and paying the fees was the job of our front office and we then billed the producer for all costs.

His name appears as owner of the licences and he paid for them, because he's the one who owns and benefits from the use of the video.
We performed the physical transfer of the music, under his direction and approval.

Ask your producer to actually buy the CD or whatever, and give you copies of the receipt for that purchase and then he should apply for the licence to use it
and pay the fees, before you do any work with it.

This would also cope with any negotiations that might arise when getting the required permissions.
Bear in mind popular commercial artists are probably going to cost big time, that is if they reply at all.

Back in the day when music copyright laws were formulated, simply put, the person who actually physically copied the music was responsible.

But today in a practical sense, with the WWW taking over in the 21st century, to be seen to be attempting to do the right thing in any legal repercussions,
is light years ahead of others who just steal copyrighted music. If you follow this course of action, I don't think you have anything to worry about.

Cheers.

 

[Steve House]

I read you as a solo operator and a 'new employee' of the producer who produced and owns the actual video he contracted you to work on.
In our companies case with 12 permanent employees, some of whom selected copyright music tracks for use in our clients video productions,
our employee was not required to apply for the licences, pay the fees or be legally responsable for the use of the music.

Sometimes 2 or more employees worked on various music selections for the same video.

The employee-editors are working under a work-for-hire scenario in that case and it is the employer who is the creator of the work and thus the entity repsonsible for obtaining the licenses for any intellectual property used in its creation.

Applying for all the licences and paying the fees was the job of our front office and we then billed the client for all costs.
His name appears as owner of the licences and he paid for them, because he's the one who owns and benefits from the use of the video.

We performed the physical transfer of the music, under his direction and approval. Ask your producer to actually buy the CD,
and give you copies of the receipt for that purchase and then he should apply for the licence to use it and pay the fees, before you do any work with it.

This statement is confusing. Is your "client" in this case an actual production company that is producing the video and has hired your organization to provide editorial services or is it a business or wedding client that has hired your production company to come in and create - shoot, edit, etc - a video for them? If you or your company is hired by a producer to provide editorial services on a work-for-hire basis you would be correct and they would both own the video and need to be the one who obtains/owns the license for the music. BUT if your company is the production company that is actually producing the video for subsequent delivery to a client, your company, NOT THE CLIENT, both owns the video and needs to be the owner of the licenses to the music used. It is very important to remember that the fact a client pays who you to produce a video for them DOES NOT automatically make them the owner of the video upon payment of your fee and payment of the fee, even their approval of the music selections, does not make them the producer of the work. It is the actual creator of the video, not his client, that must own the licenses to the music that he uses.

This whole thing of who owns a video that has been produced for a client is a real can-of-worms and the idea that since the client paid for it they own it amounts to throwing away one's intellectual property rights. The "owner" of a piece of intellectual property is the entity who owns the copyright to it. That initially belongs to the creator of the work and remains his property unless/until he explicitly transfers it to some other party. Unless your contract with your client includes provisions that explicitly transfer copyright over to them, they do not actually own it even though they did pay you to produce it. Absent an explicit transfer of copyright what they paid for was a license to use the video, not the video itself. It may be a subtle distinction but it is a very important one. Consider shooting a commercial - the price charged the client often depends on the intended geographic distribution of the finished ad and the length of time that it will be used, a commercial to run nationally will cost more than an identical commercial intended for just one local market, and often the fee will be higher for one that is to run a long time than for one that is only going to be used briefly. If the client owns the copyright, once the ad is delivered to them they can do anything they want to with it without further payment. But if your production company produces an ad initially licensed for local use for the next 3 months and the client then decides they want to run it nationally for the next year, if you have retained the copyright you can require they pay the additional fees to bring the amount they have paid up to your higher "national ad, full year usage" rate before they can use it for the new purpose.

 

[Allan Black]

Sorry for any confusion Steve, yes there are many aspects to property rights.

We never produced video, had any titles or ownership of the productions I was referring to. My company provided soundtracks in the early years,
later that changed, but not for this thread.

I was providing examples then narrowing my reply for the OP as a solo operator, who's not sure how he should proceed in todays world.

Cheers.

 

[thebeatsuite]

Hey folks, thought I'd chip in with a link to an article we've written intending to be A Guide To Royalty Free Music which may provide some further info from a music library's perspective.

 

[Noiz2]

Not true. The creator of the video owns the copyright to it. What the client gets in return for paying your fee is a license to use the video but unless you have transferred the copyright in writing you still own it. What the client owns is a licensed copy of the video and the physical media it came on. As the creator of the video, you are the one who must obtain the licenses for the music you use. Even if you do ultimately transfer ownership of the video to your client, because you are the creator of the work that incorporates someone else's intellectual property, you are still the one responsible for licensing all the music you have used in it. Your client can't license it after the fact and a license that they already have that gives THEM the right to use the music DOES NOT give YOU a similar right to use it in a production you are creating for them.

This all depends on the relationship and you are using wording that confuses the issue. If I am creating a video for someone they are usually the producer and it is them bringing in music, and they own the piece when done.

In wedding videos this would rarely be the case. They have hired you to produce the video and it will lie on your shoulders to secure the rights. But even then they can secure rights for music to be used in the video. Synchronization rights are tied to the film not the person. If they buy rights of a piece to be used in their wedding film you can put it in and use it. You can't use it for anything but what it was licensed to be used in but the license is for the film.

The wedding/ event video ecosystem is a weird one and it will probably take some big law suit to define what the roles are. You can ague it both ways. You are shooting (maybe) and editing a film but they have final approval and are paying for it, so they are playing many of the rolls of a producer. They are also acting largely as the distributor, so you as the "creator" have no real control over what happens to the finished product. The two entities in the film world who would be the ones responsible for paying for and living up to the restrictions of a licensing agreement are the folks who hired you to do the video. So the real relationship is complicated. And it's probably just as problematic for the editor/ creator to get license the music since they have no control of the film after it leaves their hands and can't reasonably enforce the restrictions of the agreement.

So while yes absolutely any music used needs to be licensed there really is no sane way to do that for the vast majority of commercially released music. It's fine to say YOU need to get the license but actually that also opens you up for legal action when the bride posts the video up on YouTube. The only practical solution is to not use any music that you can not get a license that covers all the uses that might happen, ie most royalty free music.

Your only other self protecting option is to have an agreement in writing that your "client" acting as producer has secured rights to all the music they have provided you to use. This we all know will be BS and all it does is give you plausible deniability if there is a law suit. But at least you can probably keep your home.

I have been able to refuse to put unlicensed music in films I worked on. But if I were in the wedding video business I can see how this would be a constant battle.

 

[Richard Crowley]

Some venues (Canadia, for example) seem to have more sensible procedures for securing "sync license" (or whatever they call it in their venue.)
A few years ago I found a website that appeared to make sync licensing as easy as completing an online form. I got the impression that there was compulsory licensing and statutory rates (just as there is for mechanical licensing in the USA).

And the clever people at CCLI seem to have streamlined the process of music licensing for podcast/streaming with a flat annual fee. (Religious music only for churches.)