Wedding Videographer Sued For Use of Commercial Music

[David Saraceno]

Given the fact that I practiced law for 30 years in four states, I have say your horse isn't running in this race.

Last time I looked, stealing was wrong.

And using another artistic creation for your own profit is stealing if done without permission or license.

It's just plain wrong and illegal.

 

[filmguy123]

The funny part is, the people who argue that any use of copyrighted music at anytime is stealing always either (A) make their case by comparing it to physical theft or (B) imply that someone is passing the work off as their own. The irony is, people who are "OK" morally with certain forms of copyright infringement usually aren't OK with either A or B, because they are totally different. Any intelligent or logical person can clearly demonstrate this, so the grounds for the argument are completely different.

Also, this is specifically about MAJOR song artists and RECORD LABELS, not the little guys, and the reason this happens is because it's virtually impossible to obtain licensing. Unlike working with smaller content creators.

Richardson, it is a futile attempt, because you aren't engaging the ACTUAL issue. You are setting up a straw man, and doing what Doc did by comparing IP to physical property when it's apples and oranges. So OF COURSE people blow off that argument.

It's not that people who violate copyright infringement in certain cases and for certain reasons are arrogant, immoral, and entitlement minded. Some of them are. But others are very intelligent and moral. They are blowing off black-and-white thinkers who are unable to engage the actual issue and see the logical flaws in their attack on the issue. Even though I don't use copyrighted music in my work, from where I stand, the people who blindly attack any form of copyright infringement and put furhter highly flawed arguments are the ones who appear arrogant to me.

@ Casslus - I'm not defending myself. I have explicitly stated that and how I seek out licensed music and don't infringe. My point with that line is that the reason people continue to infringe is because their livelihood depends on it, and that isn't going to stop unless record labels spend millions more on legal enforcement. They'd be much smarter to just license their music for a reasonable fee. Not as "throwing in the white flag" or "giving up because wrong can't be stopped", but because it would actually be a better, more fair business model. The current system is flat-out stupid.

David, on a seperate more philosophical note: Do you mean being above the law "Malum in se" or "Malum Prohibitum"? I would quote Steve Jobs:

"When you grow up you tend to get told the world is the way it is and you're life is just to live your life inside the world. Try not to bash into the walls too much. Try to have a nice family, have fun, save a little money. That's a very limited life. Life can be much broader once you discover one simple fact: Everything around you that you call life was made up by people that were no smarter than you and you can change it, you can influence it..."

He's talking about thinking outside the box of the set out rules, not "breaking laws" but I find that the mindset and concept are the exact same. There are some people who think that every law a government put in place was put into place by "the gods" or something, when the reality is it was setup by people like you and me, and for good reasons. But are they perfect? Can they ever or should they ever be changed, modified, and re-examined? Or they prone to error? Here's a fun website:

http://www.dumblaws.com/laws/united-states/alabama

My point isn't to make light of copyright infringement. My point is that the heart of the law is to protect content creators. There's definitely some areas of how this plays out that are not only ineffective, but I would argue counter-productive by hurting content creators. Not allowing anyone but major budget hollywood flicks to license music (implied by the prices) hurts content creators and is counter-productive. I would like to see things changed. My second point is that people who see someone use unlicensed music are often very quick to judge, and highly judgmental of a person's character - the irony being that their reasons are arguments aren't very thoroughly thought out, and are logically invalid and inconsistent.

FWIW, http://en.wikipedia.org/wiki/Copyright_infringement:

Copyright holders frequently refer to copyright infringement as "theft". In copyright law, infringement does not refer to actual theft, but an instance where a person exercises one of the exclusive rights of the copyright holder without authorization. Courts have distinguished between copyright infringement and theft, holding, for instance, in the United States Supreme Court case Dowling v. United States (1985) that bootleg phonorecords did not constitute stolen property and that "...interference with copyright does not easily equate with theft, conversion, or fraud. The Copyright Act even employs a separate term of art to define one who misappropriates a copyright... 'an infringer of the copyright.'" In the case of copyright infringement the province guaranteed to the copyright holder by copyright law is invaded, i.e. exclusive rights, but no control, physical or otherwise, is taken over the copyright, nor is the copyright holder wholly deprived of using the copyrighted work or exercising the exclusive rights held.

It's clear to me that most backlash or arguments against copyright infringement come from the experience of having one's work ripped off. I have had it done to me. I know the feeling. Let's talk logically though, not emotionally, and remember what the actual discussion is about.

 

[David Saraceno]

You can quote Jobs, Plato, Socrates, wikipedia, or the US Supreme Court.

A copyrighted work belongs to someone else. Someone else created it, and then copyrighted it, which gives that person certain rights.
If you use it without the permission of the owner as a music bed in a wedding video, you break the law.

Given all the lawsuits between Apple and virtually everybody else right now and historically dealing with copyright infringements, it's disingenuous to think Jobs thought otherwise.

 

[groveChuck]

I'm not condoning using copyrighted music (and that's as clear as I can be). BUT, that said, why did Youtube start adding iTunes links to videos?
Because money can be made from selling songs used (yes, illegally) in videos. (Hmmm.. does that make YT an accessory to a crime- profiting from an illegal enterprise?)

It's illegal today, and was illegal yesterday, yet moving forward, I think filmguy's Quick & Easy $100 licensing is brilliant!

You know how licensing has a sliding scale based on number of eyeballs- for Web, DVD, Broadcast, etc?
There should be an Event license- $100 (or whatever fee is set) to use for Wedding DVDs and Web.
They'd make million$ that they wouldn't otherwise.

And if current enforcement were to be made even-handed (and nobody ever said life is fair- we all know how the cameraman is the first to get picked on, everywhere...), then wedding DJs should be sued, and club DJs should be sued. They are playing music in venues, for profit, just like licensed juke boxes do, but without paying for rights.

So unless someone comes up with music clones (Here Arrives The Future Wife???), every wedding that plays Here Comes The Bride, Pachelbel's Canon, etc (hell, freakin' Happy Birthday is copyrighted!!!), they should start busting every wedding and reception- don't send in ATF, send in ATF&M- Alcohol, Tobacco, Firearms and Music...

Interesting. I shot B-camera for a couple of years with the offending videographer. Very good guy, if anyone is curious.

I'm sure he is a good guy... with a great eye and a happy lawyer!

 

[filmguy123]

I don't think Jobs thought otherwise. I'm talking about a mindset regarding life, that just because a law says something doesn't mean the law is right. Again, it's an abstract thought, not a concrete point.

I'm also not saying the law is wrong for protecting copyright holders. I am saying that small guys who have infringed upon copyright from major record labels for well known artists and given explicit or implicit credit aren't arrogant crooks (the vast majority of the time), and I am saying the record labels are idiots for not cashing in on the opportunity to create a fair and efficient licensing arrangement for a new world and generation. The current laws are counter-productive and they will never stop the infringement, certainly not in a profitable way.

 

[Doc Bernard]

groveChuck......every legit DJ/Club I knew had licensing to play the music they had. Especially the clubs.

I would put forth that the "cheap" licensing format will not work. It's about supply and demand. If it is in high demand, but the legit supply is limited, then the price SHOULD be higher. At what point should licensing be capped? If it is cheap for one person, what is to say the major studios can't take advantage? Then any piece of music will be severely over-played. We will hear the theme to Top Gun in every film.

Seriously, this needs to be thought through a bit more from a standpoint of the entire industry, not just from one POV. We cannot just make it fair for one group. Right now it is fair. You have the money.....you get the rights.

 

[filmguy123]

Good lord. thank you GroveChuck someone actually hears what I am saying.

yes, there should be a form. You certify for a video you were paid under $5,000 and for non-commercial use, you can license one-time for $100 including sync rights. Fill out, done, rights purhcased and song download.
For small business and small scale commercial use, you pay a higher fee. For commercials, TV, and larger size business - even more.
For major corporations with huge exposure, hollywood films, etc. - even more.

This would be fair and beneficial. And most artists I hear from want their work spread around via videos and love the thought of getting their stuff out there and exposed (every band to appear in an Apple commericial has either become huge or netted a ton of cash from subsequent downloads). It's the record labels that are being stupid and aren't working in the content creators interest.

 

[filmguy123]

groveChuck......every legit DJ/Club I knew had licensing to play the music they had. Especially the clubs.

I just had to chuckle, because I am pretty sure if they didn't have licensing you wouldn't have referred to them as "legit" - it's the logical equivalent of saying "every DJ/club that had licensing had licensing"

I've known tons of people, churches, non-profits, weddings, etc. to use stuff without licensing. TONSSSSS. I'm not saying it's ok. I am just saying this at face value

 

[David Saraceno]

Filmguy. Just a quick point. I agree that there has to be a better way, and wish there was a better way to quickly get licensing rights to commercial music as music beds.

HarryFox provides mechanical rights for some instances, and we have used that approach.

A Quick & Easy $100 licensing paradigm would be great. And certain artists would become instant billionaires due to the popularity of their songs at weddings.

That being said, the discussion has been good, and productive.

 

[Alex H.]

So unless someone comes up with music clones (Here Arrives The Future Wife???), every wedding that plays Here Comes The Bride, Pachelbel's Canon, etc (hell, freakin' Happy Birthday is copyrighted!!!)...

Considering that Johann Pachelbel died in 1706 and the Bridal Chorus (Treulich Geführt by Richard Wagner) was written in 1850, neither has an active copyright and the score for each is in the Public Domain. So, no... no wedding should be busted for playing either of those. The exceptions would be use of a recorded version (that would thus be property of the performing musician and his/her publisher), or use of a contemporary arrangement (in which case the sheet music would be copyrighted).

 

[filmguy123]

Thanks David. And yes, sorry as I know things get heated in these topics because copyright infringement can get personal, and I'm not trying to be argumentative. Like I said I don't do it, and I always encourage people not to. I just feel it's important for everyone to also think properly about the issue - for what it is, and for what it isn't, and to think outside the box for solutions. I think many people would agree there is a better way! And that the offenders usually aren't arrogant a-holes who condone theft and feel entitled to other people's hard work. They're usually very intelligent and moral people with good intentions, they may just think and process the issue differently. Glad you understand where I'm coming from.

 

[David W. Richardson]

The funny part is, the people who argue that any use of copyrighted music at anytime is stealing always either (A) make their case by comparing it to physical theft...

We make that comparison because it's accurate. It IS physical theft. Just because it's a song and not a Ferrari changes nothing. YOU DON'T OWN IT. YOU DON'T OWN THE RIGHTS TO IT. So you CANNOT do whatever you want with it. Period.

or (B) imply that someone is passing the work off as their own.

I don't know if anyone has said that. Not me. Giving the artist credit changes nothing. You've still stolen the work.

groveChuck...

I think filmguy's Quick & Easy $100 licensing is brilliant!

Except WE don't get to tell the owners of ANY creative property -- music, videos, photos, whatever -- what they can and can't do with it. If they WANT to do that, then great. If they don't want to, that's their right.

 

[Doc Bernard]

Would the licensing be retroactive? What if it was under 5K, and for some reason it went viral? And suddenly it's the hot topic in the industry? Shouldn't the owner of the music profit from it as well?

Then there would be even more paperwork to fill out and lawyers involved to make sure it was equitable. The world is not perfect, and it is not "fair". You want to use someone else's work, there is a cost that has to be paid. One that the owners of the work are happy with too. I don't have to sell something that is my hard work, no matter how much people complain. It is mine to do with as I please. That goes the same for the record/management companies, too.

Trying to dictate what should be fair to those holding the cards is naive and a non-starter. Might as well complain about the price of gold. It will do just as much, since the demand and supply dictate the price of that too. And the discussion of tangible vs. intangible is a moot one too. Just because someone thinks it's an intangible asset, does not mean it is any less valuable to the owner of it. If you want something, you either have to pay the asking price, or you take it without permission. If you choose the latter, then it is theft.

The question is simple, if you use someone else's work without permission, is it theft? Yes or no? There is no "grey" area on this. It either is or isn't. And no amount of justifying it makes it better.

 

[David W. Richardson]

Richardson, it is a futile attempt, because you aren't engaging the ACTUAL issue. You are setting up a straw man, and doing what Doc did by comparing IP to physical property when it's apples and oranges. So OF COURSE people blow off that argument.

Nice try, but my next post applies the EXACT argument -- what I would do if you or anyone else stole MY video work. I would be completely within my rights, just as the owners of music copyrights are within theirs to sue and/or file charges.

It's clear to me that most backlash or arguments against copyright infringement come from the experience of having one's work ripped off. I have had it done to me. I know the feeling. Let's talk logically though, not emotionally, and remember what the actual discussion is about.

Another nice try. But no, I've never had a video or script stolen from me. Or any other intellectual/creative property. Had an old lawn mower stolen once, but that's hardly relevant here.

We ARE talking logically, not emotionally. WE are saying, "It's the law, and if you break it there are consequences." We're not the ones making emotional arguments.

 

[filmguy123]

Ok, I am going to check out at this point. I've said everything I need or want to say. Richardson, my response to your assertions can be found in all of my previous posts regarding physical theft and what not. Regarding "we don't get to tell the owners" be aware that most artists don't get to tell the record labels what to do either, and the record labels are calling the shots, and even if it was the artists, my point is that the record labels should agree to do this because it's better and smarter - not that we should do it anyway until they do agree.

Would the licensing be retroactive? What if it was under 5K, and for some reason it went viral? And suddenly it's the hot topic in the industry? Shouldn't the owner of the music profit from it as well?

They profit by exposure. A hollywood film pays a flat fee whether it's a box office hit or a bust.

Trying to dictate what should be fair to those holding the card is not naive, and is not a non-starter. It's been done all throughout history in business.


I firmly stand by everything I said. And keep in mind I'm writing this as an artist, one that's had my work stolen before! But this discussion is about the big guys, not the little guys, anyway!

That's all - peace out y'all! See you in 10 years when either (A) the record labels are doing it as I suggested, or (B) they are broke trying to stop it, or (C) nothing has changed

 

[David W. Richardson]

And that the offenders usually aren't arrogant a-holes who condone theft and feel entitled to other people's hard work. They're usually very intelligent and moral people with good intentions, they may just think and process the issue differently.

On the contrary, what I hear over and over is how the copyright owners should be 'happy' with the 'free publicity'. How they shouldn't begrudge the 'little guy' from making a buck off what they (the owners) have made millions from. And the ever-popular "well everybody ELSE does it!" That doesn't sound arrogant and entitled to you?

How do you morally justify taking something that doesn't belong to you?

 

[Alex H.]

I think many people would agree there is a better way!

I think we've completely ignored the fact that there already is. There are a couple of great options, in fact.

1) Creative Commons has offered artists a way to share creative content with other artists, often for free. This includes some of the greater "indie" tracks that radio stations don't know.

2) Vimeo's Music Store comes pretty damn close to your $100 option. In fact, the top tier of licensing for music from their store is... $100.

These ideas are starting to catch on, and there are more options out there every day. And you are correct in that many folks would love to have easier access to the music clients want. I think where this whole debate got off track was in the confusion between the need for a more affordable system and the justification of copyright infringement as a stand against a difficult system. Even though it may have been unintentional, that justification was implied.

 

[David W. Richardson]

Regarding "we don't get to tell the owners" be aware that most artists don't get to tell the record labels what to do either, and the record labels are calling the shots...

That's because the artists signed fat contracts giving the record companies OWNERSHIP of the songs. Having done so, the artists no longer can dictate who can have the music and who can't. It doesn't belong to them anymore. They traded them for giant stacks of money.

...my point is that the record labels should agree to do this because it's better and smarter...

Better and smarter....in your opinion. If you truly believe that, then go sell the record companies on the idea. After all, they're in the business of making money. If your idea would make them more money, they would jump on it. So talk to them.

 

[Doc Bernard]

Better and smarter....in your opinion. If you truly believe that, then go sell the record companies on the idea. After all, they're in the business of making money. If your idea would make them more money, they would jump on it. So talk to them.

Agreed 100%. FilmGuy, if you really believe what you have been saying, go propose it to the record labels. Let us know how it goes, this "it only helps them" philosophy.

Love to see how you make out with this. But as someone who was involved with that industry......I don't think you will get far. You have no clue about music business and what it takes financially to get any band/artist to the top charts. And the level of investment a label puts to bear behind an artist. And they should provide that commodity at an extremely low cost because someone disagrees with the business model.

I am trying to keep a straight face while I am typing this, because you really should do some research before suggesting something like that. Exposure does not re-imburse those that fronted all the investment, and labels are not charities.

 

[groveChuck]

A Quick & Easy $100 licensing paradigm would be great. And certain artists would become instant billionaires due to the popularity of their songs at weddings.

And somebody who sets up that sytem, and gets the record labels (a growing anachronism) to agree, will become quite wealthy, too.

That being said, the discussion has been good, and productive.

Agreed. Thanks for not closing the thread, David.