Discussion:
Hi,
As for state... my business is located in New Hampshire however most of my clients are in Massachusetts but ultimately I don't think that will have any bearing on my question.
I'm a wedding photographer. One of the products I'd like to offer is a DVD slideshow set to music. The clients for the most part would be the bride and groom with the ocassional sale to each set of parents. The intended use for such a product would be for private use only and each DVD would obviously be a custom one off job for each client based on their wedding photographs.
If I want to use commcercial music it is my understanding that I need to obtain a sync license from the publisher and the owner of the master recording (usually the record company). I believe this is a pretty much black and white issue but I see SO MUCH conflicting information out there that I wanted to double check. If I hear otherwise I'll probably consult a local IP lawyer. So, is my understanding correct or are there some fine details that I'm missing that would somehow legally enable me to use commercial music via some other route?
I've tried to obtain a sync license and I don't think that the big publishers are really interested in dealing with someone who's selling a one off product priced in the $500 range so they decline the requests.
It's my understand that Australia has a flat fee yearly license that allows wedding videographers (yes, it's that specific) to use commercial music provided that no more than 20 copies of that specific video (which must be on DVD or video tape, it can not be an executable embedded movie, DIVX movie, Quicktime movie, etc.) are sold. Photographers have been purchasing these licenses as well in hopes that it will keep them legal but it's never been tried in court for photographers.
I think such an arrangement would be wonderful to have in the US but I'm not sure how one would go about trying to drum up the support to bring about such a change.
I believe the spirit of the law with regards to sync licenses is to protect the interests of the artist giving them some power to reject the use of their song in a movie or commercial that is inconsistent with their image or beliefs. I do not believe the intent had wedding photographers in mind, but like it or not, we are bound by those laws.
I know that some photographers who are frustrated by the complex and convoluted nature of getting a sync license have resorted to buying a copy of a song everytime they use it (either by buying the CD or buying a single off of iTunes) in hopes this somehow keeps them legal but I don't really see that flying in court. The RIAA seems to have a "if it moves, sue it" policy so I doubt they'd be sympathetic. While I don't think any less of them for doing so (those buying the songs every time they use them in a slideshow) I'm personally not comfortable with this and it frustrates me because it effects my ability to stay competitive.
Any thoughts or wisdom in addition to clarification in regards to the copyright laws involved here would be greatly appreciated.
Cheers, Joe
Symphony Photography (yeah... I'm a music lover... even had to have a business name related to it)
Answer:
If I want to use commcercial music it is my understanding that I need to obtain a sync license from the publisher and the owner of the master recording (usually the record company). Almost correct -- you actually need TWO licenses for each piece of recorded music you want to use. You need a license for the "musical work" (the actual song itself) and a license for the "sound recording" (the recorded performance of the actual song). "Musical work" licenses are essentially compulsory (they have to sell you one if you ask), and you can obtain them from the Harry Fox Agency, a clearinghouse (like ASCAP or BMI) for licensing such uses.
The "sound recording" licenses, as you are finding out, are owned by the particular record companies themselves, in most cases, and the licenses are NOT compulsory, which means you have to negotiate for them on your own, and there is no requirement that the owners negotiate with you.
It's my understand that Australia has a flat fee yearly license that allows wedding videographers (yes, it's that specific) to use commercial music provided that no more than 20 copies of that specific video (which must be on DVD or video tape, it can not be an executable embedded movie, DIVX movie, Quicktime movie, etc.) are sold. Photographers have been purchasing these licenses as well in hopes that it will keep them legal but it's never been tried in court for photographers.
I think such an arrangement would be wonderful to have in the US but I'm not sure how one would go about trying to drum up the support to bring about such a change. A good idea, but good luck getting that passed here. Copyright holders (esp. the RIAA) have fought tooth and nail against any sort of compulsory licensing scheme when it affects THEIR copyrights, and have fough tooth and nail for compulsory licensing when it helps them. It took YEARS for compulsory licensing of internet radio stations to become a reality -- the RIAA (and their brethren) wanted individual negotiated license (probably so they could have some control over who did and did not get licenses). However, in the opposite case, the RIAA was able to quickly get a "compulsory license" put on the sales of DAT tapes, whcih effectively killed the DAT market before it even got started...
I believe the spirit of the law with regards to sync licenses is to protect the interests of the artist giving them some power to reject the use of their song in a movie or commercial that is inconsistent with their image or beliefs. I do not believe the intent had wedding photographers in mind, but like it or not, we are bound by those laws. I dont' know what the spirit of the law is, but the letter of the law certainly gives the copyright owner complete control over the reproduction and distribution of his or her works (with a few exceptions), so yeah, wedding photographers are covered as well.
I know that some photographers who are frustrated by the complex and convoluted nature of getting a sync license have resorted to buying a copy of a song everytime they use it (either by buying the CD or buying a single off of iTunes) in hopes this somehow keeps them legal but I don't really see that flying in court. The RIAA seems to have a "if it moves, sue it" policy so I doubt they'd be sympathetic. While I don't think any less of them for doing so (those buying the songs every time they use them in a slideshow) I'm personally not comfortable with this and it frustrates me because it effects my ability to stay competitive. You are correct here, and they are wrong. When you purchase a CD, you are not purchasing any of the "rights" to the songs on the CD. Purchase of a CD does not give you the right to reproduce the CD (except to make "archival copies" for personal use, or "space shift" the music onto another medium for personal use, like a hard drive or iPod), to distribute the CD (except you can sell, rent, give away or whatever the copy that you purchased, so long as you don't retain any archival copies or give away the archival copies themselves separate from the original), to create derivative works from the CD, or to publically perform the CD. Purchasing a copy of the CD does not give the owner the right to reproduce the music on the CD into another format.
From a perfectly legal standpoint, you can't use the music in your slideshows without the necessary licenses, and, as you are finding, it might not even be possible to obtain the requisite licenses. If you use the music anyway without licenses, you run the risk of being sued for copyright infringement. How great is the risk? Who knows -- but it is a risk, and only you can determine what risks are reasonable for you to take.
If you can't get the proper licenses, there are alternatives:
1. Use the music anyway, if you feel the rewards outweigh the risks;
2. Obtain licenses for the "musical works" (since they are compulsory) and hire a band to make your own "sound recordings" for use on the DVD's (may actually not be a bad idea if there is a local "tribute band" that is any good for the songs you are interested in);
3. Use "public domain" songs (songs originally published in the U.S. before 1923) and have someone perform them for you;
4. Find a source of "licensed" songs -- there are CD's of songs (usually meant for sampling) that come with licenses to use in other works;
5. Write and record your own music.
There are probably other alternatives as well. (1) above has the advantage of being able to use popular songs, but the (major) disadvantage of being illegal; (2) through (5) are most likely less satisfactory for any of a number of reasons, but at least are legal.