Music licensing, who's responsibility is it?

[paulears]

As far as I can find, there seems to be no case law (at least in the UK) on this. There are thousands of video editors working either as employees or as self-employed who add copyright music and images to the edits in progress. In most cases, the responsibility for processing the clearance is an admin function for most organisations. If the office mess this up, the editor has done the dirty deed, but I've been unable to find a single case of the editor being held responsible.

If an editor is provided material that subsequently turns out to be a problem, after it's been edited, then again it would seem that the editor has never been held responsible.

In the UK, my understanding is the same as Richard's - you cannot absolved yourself of responsibility by simply declaring it's somebody else's. The killer seems to be if you knew the material was not cleared, and perhaps wouldn't be. There's no doubt a legal term for this. I did a job last year for a client where she provided me with footage from broadcaster. In our email discussions before I started, I asked if it was ok to use the material, and she responded by telling me the broadcaster had provided here with the material for this purpose, but I wasn't able to use one of the contributors comments. Sounded a bit odd to me, but she was convinced it was all legit, so I did it. For me, her telling me it was ok I took as fact. If I'd turned it around and told her in an email that clearance was her responsibility, I suspect that if it went wrong, this would not have been enough. her telling me it was ok is (at least to me) very different.

 

[Noiz2]

In the US there have been a number of wedding video facilities put out of business because of infringement suits. But generally there has been little enforcement and in most cases the penalty for a filmmaker is that they can't show their film anyplace.

It's kind of a mess (sound copyright) overhere that hasn't been looked at a lot because if you look too close everyone has a problem. The music folks have been pretty agressive, when they think there is money to be had and periodically to show an example so music is a dicey thing to not be careful with.

As an example of the sound nightmare, virtually nobody except Skywalker makes everyone sign all rights to all work over. So those big sound libraries from studios that you can by are mostly not legal for them to sell. The recordist owns the copyright unless signed away. If you wanted to go crazy this also probably applies to production tracks. The studios only own the right to use that sound for that film. Now in general everyone looks the other way and pretends everybody/ nobody owns the sounds. So traditionally the recordist probably has a copy, a copy goes into the film archive storage, one or more of the sound editors often have a copy, the post facility will keep a copy and put it in their library. Then when any of those first "owners" uses the sound on another film you get a whole bunch of new "owners". And of course sound editors tend to share sounds with others.

But technically in almost all cases the original recordist actually has the copyright. Or did. I'm not too clear on how you loose copyright on a recording. On most things not putting a copyright mark can cost you the copyright, but since it's not possible to put a copyright make on a sound??? Probably one way is to know you have been infringed and not pursue it. Which would be another reason music folks would have to go after folks who they find out about.

And the big difference between sound and music is that in big film anyway sounds are just building blocks, notes if you will. It's much more about how you put them together than the sounds you used to get there. So in general nobody is worried about loosing work because film X can go to Joe and get my sound. They will come to me because they like what I do with the sound or they will go to Joe because they like what he does with it.

Music on the other hand isn't just a note but the finished product.

It's probably good to point out again at this point that just because it's complicated or you might get away with something doesn't mean it's OK to just use other peoples work with out permission.

 

[Richard Crowley]

...virtually nobody except Skywalker makes everyone sign all rights to all work over. So those big sound libraries from studios that you can by are mostly not legal for them to sell. The recordist owns the copyright unless signed away. ...
But technically in almost all cases the original recordist actually has the copyright. Or did.

But if a recordist is working for the production company/film/studio, what they create is owned by their employer under the legal principle of "work for hire" is it not?

I'm not too clear on how you loose copyright on a recording. On most things not putting a copyright mark can cost you the copyright,

Labeling a work with the copyright notice (which requires the copyright symbol or the word "copyright" and the year, and the owner's name) is NOT required for copyright. At least in the USA (and I believe in all Berne Convention memember states?) copyright exists as soon as it is "fixed" written, saved, recorded, etc. Applying the legal copyright notice makes the owner eligible for extra damages (or some legal benefit or other) I am not a lawyer, I do not play one on TV, or here either.

but since it's not possible to put a copyright make on a sound???

The recording medium (the reel, the meta-data inside the file, etc.) can contain the copyright notice, can't it?

Just because you can't "label" a sound doesn't mean that it can't be identified, tracked and used as evidence of infringement. Remember that both rights societies (ASCAP, BMI, SESAC, et.al.) and ratings services (Nielson, et.al.) use fully-automated recognition software to identify and log songs and spots ("ads") off the air.

 

[Noiz2]

But if a recordist is working for the production company/film/studio, what they create is owned by their employer under the legal principle of "work for hire" is it not?

No. It's the same as hiring a sculptor to create a work for you. You own the sculpture but not the intelectual property. So for instance you can not make copies of it or sell pictures of it with out getting permission. Also I know an editor who got compensated by a post facility that included one of her sounds in a SFX collection by accident. That sound was recorded for a show that was produced at the facility and it drifted into their library and by the time they were compiling the library everyone had forgotten where it came from.

Labeling a work with the copyright notice (which requires the copyright symbol or the word "copyright" and the year, and the owner's name) is NOT required for copyright. At least in the USA (and I believe in all Berne Convention memember states?) copyright exists as soon as it is "fixed" written, saved, recorded, etc. Applying the legal copyright notice makes the owner eligible for extra damages (or some legal benefit or other) I am not a lawyer, I do not play one on TV, or here either.

The film Brother from another Plannet lost it's copyright coverage because of a labeling issue so?

The recording medium (the reel, the meta-data inside the file, etc.) can contain the copyright notice, can't it?

It can but a lot of music files don't have this, at least that I am aware of, and they still are covered so?

Just because you can't "label" a sound doesn't mean that it can't be identified, tracked and used as evidence of infringement. Remember that both rights societies (ASCAP, BMI, SESAC, et.al.) and ratings services (Nielson, et.al.) use fully-automated recognition software to identify and log songs and spots ("ads") off the air.

Identified and protected by copyright are different issues. Tracking it doesn't mean it's covered by copyright and there is no infringement if it's not covered.

 

[Richard Crowley]

A work made for hire (sometimes abbreviated as work for hire or WFH) is a work created by an employee as part of his or her job, or a work created on behalf of a client where all parties agree in writing to the WFH designation. It is an exception to the general rule that the person who actually creates a work is the legally recognized author of that work. According to copyright law in the United States and certain other copyright jurisdictions, if a work is "made for hire", the employer—not the employee—is considered the legal author. In some countries, this is known as corporate authorship. The incorporated entity serving as an employer may be a corporation or other legal entity, an organization, or an individual.
http://en.wikipedia.org/wiki/Work_for_hire (admittedly not a legal expert, but a convenient and concise lay-persons explanation)

So I guess the difference is whether the recordist is an EMPLOYEE or a CONTRACTOR.

Under the law a film is a work-for-hire. The copyright notice in original copies of the film was the name of the production company (Copyright 1984 A Train Films Inc.) The copyright reverted from that production company to John Sayles in 1991 and has since been transfered to Anarchists Convention Inc. Not hard to look up on the copyright office website.
http://archive.org/post/341422/please-remove

And there was also the famous case of that holiday classic "Its a Wonderful Life" whose copyright was allowed to lapse due to a clerical error. But through some legal maneuvers, the copyright was re-established. Interesting reading in the "Ownership and Copyright Issues" section here:
http://en.wikipedia.org/wiki/It's_a_Wonderful_Life#Release

My understanding is that EVERYTHING is covered by one or more copyright ownerships. Even if you sing a "cover", while you don't own the rights to the song, you DO own your rights to the performance, etc. etc.

 

[Steve House]

"Hiring" a freelance contractor such as a sound recordist, camera person, editor, sculptor, photographer, etc for a specific project does not make them an employee for copyright ownership purposes unless the written employment agreement explicitly states that the intellectual property produced by the contractor's labours is being created as a 'work-for-hire'. Those exact words MUST appear in the written contract in order for the client hiring the freelancer to become the copyright owner, despite the fact that the client is indeed paying to have the work done. He has commissioned someone to create the work in accordance with his wishes but stating the results he expets does not make him the legal creator of the work. The copyright goes to the actual creator.

A performance is not copyrightable since it is ephemeral but a recording, video, film, or photographs of a performance are copyright, owned by the persons who captured the performance into its tangible form. That means if a filmmaker shoots an artist singing a cover, the publisher of the music owns the copyright to the song and the filmmaker owns the copyright to the film. The artist doesn't own any copyrights at all, however he DOES retain the right to control the use of his likeness and the filmmaker ought to obtain a model release for his own protection.

 

[Richard Crowley]

An IP attorney explained to me that "copyright" is actually "a BUNDLE of rights". The author (or screenwriter or composer or arranger or artist, etc.) owns the rights to the work itself. But then the performer(s) have a separate right to the content of the recording of their performance. And then the recordist owns the physical manifestation of the RECORDING.

The recordist may "own" the physical medium (reel of tape, DAT cartridge flash memory, etc.) and also "own" the effort it took to make the recording. (Unless the recording was an employee and it is a work for hire as part their normal duties.)


But the recordist does NOT own the CONTENT of the recording (except to the extent of his labor in capturing the recording). The work itself (a page of script, or a song or a painting, etc.) is owned by the copyright-holder (or by nobody if it is in Public Domain because of age or explicit donation). And the rights to the performance are owned by the performer (which is why you need a Release document).

This is why we have things like copyright photographs of Public Domain works (like classical music, old works of art like the Mona Lisa, etc.) The photographer does NOT own the contents of the image (DaVinci's painting), but they DO own the photographic manifestation of the painting which they snapped.

And in the case of classical music, while the original work may be in the Public Domain, there is an extraordinarily high probability that the EDITION of the work that the performers are playing from (i.e. the sheet music scores) are modern "editions" which ARE under copyright control. And in some countries (like the UK), the engraving (the way the edition of the music is printed) has a separate copyright and owner.

Note also that "public performance" is a separate, special case, and those rights (and royalty payments) are often (but not always) covered by the performance venue. And then "broadcast performance" is yet another separate licensable activity, and now we also have streaming and podcasting "performance rights" to deal with as well. This frequently trips up DJs (and especially amateur, part-time DJs for wedding receptions, etc.) who legally need a Public Performance License to play the recordings of the music in a public place to strangers.

It would appear that both the original recordists and the studios or production companies they recorded the sounds for are effectively assuming that all those millions of SFX recordings were works for hire and owned by the studios.

Here is an interesting story about the famous "Wilhelm Scream": http://www.hollywoodlostandfound.net/wilhelm/

 

[Noiz2]

Well I'm glad we have a lot of legal experts chiming in ;~)

Anyone reading this should be advised that nothing posted so far is necessarily the case and you should check with an actual lawyer about your specific case.

Here is an article by an actual lawyer that might add some light.

http://www.scottkouesound.com/Info/Sound_faq/soundpostfaq.html#myAnchor7

Many films and TV shows that were in the public domain became unPD when the copyright on music got revised and made retroactive. The shows are still out of copyright but the music isn't.

I'm pretty familiar with the issues of sound recordings because it's been a hot topic with film sound professionals for awhile.

Sound folks in big budget films are all freelance. You are hired as a contractor by the "film" through a facility. The facility writes your check but it's a pass through from the "film company". All films with a (real) budget are corporations and are the actual entity everybody works for. In the US anyway.

That is probably a very different relationship than someone working at an event videography shop is in but?