Re: Copyright & Fair Use

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From: George Ellis (george.ellis_at_9delta9.com)
Date: 02/14/05 

Date: Mon, 14 Feb 2005 09:03:17 -0500

First, I am not a lawyer. There are lawyers who specifically specialize in
copyright. It does not sound like you need one, but if you do, I know where
you can find one. I have to do licensing for my products, so have had to
read through this and work with a licensing agent. I have even done my own
licensing, which is why I find using an agent the way to go and own a music
authoring package.

Copying music from a CD to a video for your own personal use is ok (so far).
But, if you gave it to someone else, it is not. If you copy it to the web,
it is not legal without 'permission'. Don't expect to be able to call
someone and get permission either. What you need is synchronization rights,
which allow you to combine music into video, and a master license, which
allows you to republish an artist's music. Sync rights pay the song writer.
The master license pays the artist. But both are handled by the publishing
agent instead of the artist directly in almost all cases. You could even
get permission from the artist, but still not be legal as you have to go
through the publisher (it is a racket).

Here are some strategies folks try that do not resolve/absolve the copyright
and need to get licenses - These do NOT make it legal:
 - Letters from the client absolving you have harm to include their songs on
a DVD.
 - Buying as many copies of a CD as DVDs that will ship.
 - Redoing the song as a midi (you still need sync rights for the
composition.)
 - "Just ignore it as I am a small guy and they will not be looking for
me" - This works for most, but the cost of getting noticed it HUGE! I just
will not take the chance as I could loss my house, cars, etc.!

I work around any isses like this with two methods, a licensing agent and
Sonic Fire Pro (SmartSound). SFP is a pay as you go product that grants
rights to the music they sell. There are also websites for stuff like this
including Freeplaymusic and Musicbakery (SFP uses a lot of their music).
These are sometimes also called Needle Drop solutions. BTW, Freeplaymusic
allows you to use their stuff in your own personal videos (Musicbakery may
be the same). A song, Spyder, on Freeplay's site was used by Fox News in
the Sheppard Smith "G-Block" for awhile.

I also use an agent. Copycatlicensing does sync rights. She may do master
licenses, but I have not asked for that, so have not verified it. I have
not yet done a web content video license (but probably will this year), so
cannot give you an idea on cost. For DVDs, songs generally run 15 cents
each per DVD and then there is the service cost. I end up spending around
$1.50 - $2.00 per DVD for sync only (I do marching band/drum corps videos -
so I have no master license to acquire).

Check out the Copycatlicensing site as Jeni has some FAQs and even a basic
instruction guide on how to do it. But know this, she is cheap compared to
doing it yourself. Disney will talk to her, but not you. EMI charges a fee
of $500 minimum to open a sync license request for individuals! And there
are some songs that are really expensive or difficult to acquire. She has a
list of known issues to date.

For additional reading, as this is a summary, check out the Taking Care of
Business forum in the Dvinfo.net Communities. There are many discussions
about music licensing (and you can easily spot the copyright lawyer - he is
now a wrangler in the forum ;) ) I highly recommend Dvinfo if you plan to
make video more than a hobby. There is not MM2 discussion there are most of
the tools are pro tools.

"James E Middleton" <someone@microsoft.com> wrote in message
news:%23dfpK5nEFHA.732@TK2MSFTNGP12.phx.gbl...
> If I make a video in MM2 or Photo Story and use a famous song as the
> background music, is that OK? Does that fall under the 'Fair Use' clause
of
> copyright laws, as long as I use it for my own 'entertainment'? Am I in
> violation of copyright laws if I cross the line and post it on the Web? Do
I
> need permission from the copyright owner beforehand? Even if I don't make
> any money from showing it, there is some shade of gray there. It could be
> interpreted as being used as a means for personal gain. For example,
> generating traffic on my Web site. I could lure you to my site because you
> may like a particular song. Once there I could propagate my message or
> advertise some other product or service. Just wondering;. I've poured
> through the U.S. Copyright and not being a lawyer, it's all Greek to me.
>
>
>
> WHAT IS COPYRIGHT?
> Copyright is a form of protection provided by the laws of the United
States
> (title 17, U.S. Code) to the authors of "original works of authorship,"
> including literary, dramatic, musical, artistic, and certain other
> intellectual works. This protection is available to both published and
> unpublished works. Section 106 of the 1976 Copyright Act generally gives
the
> owner of copyright the exclusive right to do and to authorize others to do
> the following:
>
> · To reproduce the work in copies or phonorecords;
>
> · To prepare derivative works based upon the work;
>
> · To distribute copies or phonorecords of the work to the public
by
> sale or other transfer of ownership, or by rental, lease, or lending;
>
> · To perform the work publicly, in the case of literary, musical,
> dramatic, and choreographic works, pantomimes, and motion pictures and
other
> audiovisual works;
>
> · To display the copyrighted work publicly, in the case of
literary,
> musical, dramatic, and choreographic works, pantomimes, and pictorial,
> graphic, or sculptural works, including the individual images of a motion
> picture or other audiovisual work; and
>
> · In the case of sound recordings, to perform the work publicly by
> means of a digital audio transmission.
>
> In addition, certain authors of works of visual art have the rights of
> attribution and integrity as described in section 106A of the 1976
Copyright
> Act. For further information, request Circular 40, "Copyright Registration
> for Works of the Visual Arts."
>
> It is illegal for anyone to violate any of the rights provided by the
> copyright law to the owner of copyright. These rights, however, are not
> unlimited in scope. Sections 107 through 121 of the 1976 Copyright Act
> establish limitations on these rights. In some cases, these limitations
are
> specified exemptions from copyright liability. One major limitation is the
> doctrine of "fair use," which is given a statutory basis in section 107 of
> the 1976 Copyright Act. In other instances, the limitation takes the form
of
> a "compulsory license" under which certain limited uses of copyrighted
works
> are permitted upon payment of specified royalties and compliance with
> statutory conditions. For further information about the limitations of any
> of these rights, consult the copyright law or write to the Copyright
Office.
>
> WHAT WORKS ARE PROTECTED?
> Copyright protects "original works of authorship" that are fixed in a
> tangible form of expression. The fixation need not be directly perceptible
> so long as it may be communicated with the aid of a machine or device.
> Copyrightable works include the following categories:
>
> 1. literary works;
>
> 2. musical works, including any accompanying words
>
> 3. dramatic works, including any accompanying music
>
> 4. pantomimes and choreographic works
>
> 5. pictorial, graphic, and sculptural works
>
> 6. motion pictures and other audiovisual works
>
> 7. sound recordings
>
> 8. architectural works
>
> Use of the notice may be important because it informs the public that the
> work is protected by copyright, identifies the copyright owner, and shows
> the year of first publication. Furthermore, in the event that a work is
> infringed, if a proper notice of copyright appears on the published copy
or
> copies to which a defendant in a copyright infringement suit had access,
> then no weight shall be given to such a defendant's interposition of a
> defense based on innocent infringement in mitigation of actual or
statutory
> damages, except as provided in section 504(c)(2) of the copyright law.
> Innocent infringement occurs when the infringer did not realize that the
> work was protected.
>
> The use of the copyright notice is the responsibility of the copyright
owner
> and does not require advance permission from, or registration with, the
> Copyright Office.
>
> Form of Notice for Visually Perceptible Copies
> The notice for visually perceptible copies should contain all the
following
> three elements:
>
> 1. The symbol © (the letter C in a circle), or the word "Copyright," or
the
> abbreviation "Copr."; and
>
> 2. The year of first publication of the work. In the case of compilations
or
> derivative works incorporating previously published material, the year
date
> of first publication of the compilation or derivative work is sufficient.
> The year date may be omitted where a pictorial, graphic, or sculptural
work,
> with accompanying textual matter, if any, is reproduced in or on greeting
> cards, postcards, stationery, jewelry, dolls, toys, or any useful article;
> and
>
> 3. The name of the owner of copyright in the work, or an abbreviation by
> which the name can be recognized, or a generally known alternative
> designation of the owner.
>
> Example: © 2002 John Doe
>
> The "C in a circle" notice is used only on "visually perceptible copies."
> Certain kinds of works--for example, musical, dramatic, and literary
> works--may be fixed not in "copies" but by means of sound in an audio
> recording. Since audio recordings such as audio tapes and phonograph disks
> are "phonorecords" and not "copies," the "C in a circle" notice is not
used
> to indicate protection of the underlying musical, dramatic, or literary
work
> that is recorded.
>
> Form of Notice for Phonorecords of Sound Recordings*
> * Sound recordings are defined in the law as "works that result from the
> fixation of a series of musical, spoken, or other sounds, but not
including
> the sounds accompanying a motion picture or other audiovisual work."
Common
> examples include recordings of music, drama, or lectures. A sound
recording
> is not the same as a phonorecord. A phonorecord is the physical object in
> which works of authorship are embodied. The word "phonorecord" includes
> cassette tapes, CDs, LPs, 45 r. p. m. disks, as well as other formats.
>
> The notice for phonorecords embodying a sound recording should contain all
> the following three elements:
>
> 1. The symbol (the letter P in a circle); and
>
> 2. The year of first publication of the sound recording; and
>
> 3. The name of the owner of copyright in the sound recording, or an
> abbreviation by which the name can be recognized, or a generally known
> alternative designation of the owner. If the producer of the sound
recording
> is named on the phonorecord label or container and if no other name
appears
> in conjunction with the notice, the producer's name shall be considered a
> part of the notice.
>
>
>
>
>
>
>

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