Recording performance of a copyrighted song, fair use?

N

No Handle

Member
I promise I'll try not to wear out my welcome by posting a bunch of noob questions about things that can easily be answered by a quick search of the forum or google, but I'm genuinely stumped here.

Revisiting some footage of a documentary I shelved before the HDV boom, I came across a pretty striking sequence. While not integral to the story in a specific way, I think it would add to the realism of the doc and be a terrific link between story elements.

The sequence is a captured recording of a one-man band performing two copyrighted songs in a town square.



The question is: In documentary film, is publishing the performance of a copyrighted song (performed by a 3rd party who presumably does not have the permission of the rights holders) considered illegal? Unethical?

Now, I would guess that the answer is 'yes' on the legal question in the US, and 'depends' on the ethical one, but I'd like to hear what more experienced people thought.

I want to add one more significant monkey wrench to this question... in the specific case of the one-man band footage, the first song is a Beatles song and is probably copyrighted from here to Honolulu, but the second is a Grateful Dead song. There was a recent dust-up regarding archive.org and performances of Grateful Dead songs that had been bootlegged with the band's consent, and redistributed digitally. I'm wondering if this would have any relevance for my footage? I should also mention that I am only submitting this film to a small student run film festival, and have no intention of selling it.

Any answers or guidance would be helpful, and much appreciated. In the meantime, I'm off to read this.
:dankk2:
 
It will be interesting to see what that website says. But I can't see how there is ANY way you could legally use that music (which is clearly under copyright) without clearance/ permission/ license.

You could find the right audio recording (that matches the tempo and mood) of something you CAN clear and just substitute it.
 
Consult a copyright attorney.

W/that being said the doc "Mad, Hot Ballroom" had issues from just kids on camera spontaneously singing some song lyrics and from ringtones in the background/off camera. Even if you think you are in the right do you have the funds to fight a legal battle against people that most likely have much deeper pockets than yourself?
 
No Handle said:
...
The sequence is a captured recording of a one-man band performing two copyrighted songs in a town square.



The question is: In documentary film, is publishing the performance of a copyrighted song (performed by a 3rd party who presumably does not have the permission of the rights holders) considered illegal? Unethical?

...
Any answers or guidance would be helpful, and much appreciated. In the meantime, I'm off to read this.
:dankk2:
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The problem is not one of whether the subject of your doco has permission to perform the songs but rather whether you have permission for the song to be heard in your video. It actually doesn't matter if the performer has permission or not, the permission to include a song in a film or video is a totally separate license called a sync license, something that you as the filmmaker must obtain directly from the copyright owner. Even if your subject has a performance license and he gives you permission to video his performance, his permission doesn't transfer any usage rights for the song over to you (unless he also happens to actually be the song's composer and publisher, thus its copyright owner). It doesn't matter how it gets into your film - performed by a musician or busker, whistled by an extra or passerby, audible as the ring-tone on a cell phone, played on a radio out of the shot - in general if a song can be heard in the soundtrack the filmmaker has to license it directly from the publisher. Now there are some exceptions starting to crop up, a few cases of "incidental use" where a snippet of a song has accidentally been audible drifting in - say, a you're doing a street interview and some music is audible in the background coming from an adjacent bar - and the courts have held because it was not intentional and was not a material part of the film itself it didn't infringe but those cases are still few and far between. A song performed on camera by the subject of a scene would most certainly NOT be consider incidental use.
 
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The answer is simple, fast and clear, you have no rights to the use of copyrighted music without the consent of the publisher.
 
I should also mention that I am only submitting this film to a small student run film festival, and have no intention of selling it.
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my school allowed us to use copyrighted music for our shorts because they were just student projects. If you decided to sell it just cut that part out. It's a gray area but if it's just going to be shown once to an audience of 30 or so students then you're probably fine. Someones not going to spend the money to come after you because 30 students saw a film where :30 of their song was played and created $0 for the director.
 
jrmiller_entertainment said:
my school allowed us to use copyrighted music for our shorts because they were just student projects. If you decided to sell it just cut that part out. It's a gray area but if it's just going to be shown once to an audience of 30 or so students then you're probably fine. Someones not going to spend the money to come after you because 30 students saw a film where :30 of their song was played and created $0 for the director.
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Your school can't "allow" it unless they are the actual copyright owner. Infringing is illegal and they can't allow it any more than they can "allow" you to rob a bank to earn next term's tuition <grin>. True, it would probably slide under the radar but that's a different issue. Now if it was only shown in your filmmaking class, it would probably fall into "fair use" but any exposure beyond that, such as, say, a film festival showcasing student work where the public is invited, is techniclally illegal.
 
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Right. It's about public performances in general, and especially ones where money changes hands, but the latter isn't necessary for it to be illegal. But if you show in a private classroom, or to a group of friends in your house for no charge you should be ok.

And yes, it's the publisher that gets compensated (and through them the composer), not, for example, the record company, band or artist, unless they are also the composers and/or publishers.
 
Thank you all very much for the responses.

"It actually doesn't matter if the performer has permission or not, the permission to include a song in a film or video is a totally separate license called a sync license, something that you as the filmmaker must obtain directly from the copyright owner. Even if your subject has a performance license and he gives you permission to video his performance, his permission doesn't transfer any usage rights for the song over to you"

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I guess that pretty much settles it...

"Even if you think you are in the right do you have the funds to fight a legal battle against people that most likely have much deeper pockets than yourself?"
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I don't have enough funds to get an oil change, let alone talk with a lawyer. :D
 
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