There's a whole lot of confusion surrounding copyrights and the use of music in videos. Here are straight answers to the most common questions.
There's a whole lot of confusion surrounding copyrights and the use of music in videos. Here are straight answers to the most common questions.
If a mention of the word "copyright" causes you to squirm uncomfortably, images of nasty courtroom battles and huge fines bouncing through your head, you're not alone. For many, copyright law is like an incomprehensible stew of politics, high finance and legalese.
Copyright issues don't have to remain some of the least understood aspects of videomaking, at least not for you. Read on for answers to the most common questions about copyright law.
What is a copyright?
In the case of a musical composition, a copyright grants the creator of the work an exclusive legal right to record or perform that work. According to the law, a work is copyrighted the instant it's in finished form. To sue or collect damages from copyright infringement, however, you must register your work with the Library of Congress Copyright Office.
Note that it's also possible to copyright a recording of a given work, which is a different beast entirely from the work itself. Sam Singer may possess the copyright to his famous song, "I Can't Sing," but any number of people can record his song and copyright their recording of it (provided they license the song from Sam first.)
What is a license?
A license allows you to use previously copyrighted material in your own work, usually to the financial benefit of the original copyright holder. If you want to use Sam's hit song in your latest training video, you'll need to license the song from the appropriate publisher.
There are two types of licenses you need to understand: synchronization and mechanical. A synchronization license covers the copyrighted musical work used (synchronized with) your video images. This would be Sam's original composition, consisting of words and melody. Whether you use one of the many great recordings of the song off CD or record it yourself with a ukulele, you'll still need to compensate Sam for penning such a brilliant tune.
The mechanical license grants you the right to use and reproduce an existing recording of Sam's song. If you are especially moved by The Applets' 1968 rendition, the mechanical license insures they get paid for their masterful recording job. If you decided to use Sam's own recording of his song, you would need to secure both synchronization and mechanical licenses from his publisher. In most cases, one publisher will handle both mechanical and synchronization licensing.
How do I know if I need a copyright license?
Consider your ultimate goal for your video--the need to license music is directly proportional to the number of people who will see your finished masterpiece. If you plan to distribute six copies of your grandparent's 50th wedding anniversary video to immediate family, you're probably wasting your time getting permission. If you're doing a music montage for your weekly home-repair show on leased access, you'll want to have your music licensing stitched up tight. Depending on the type of video you're doing, you may be exempt from copyright infringement thanks to "fair use" rules (more on these later).
Getting permission to use a song or two isn't as costly as you may think, and it's nowhere near as expensive as defending yourself in a copyright-infringement case. If there's any doubt about who's going to see your video, or how popular and widely distributed it may become, take the safe road. I've heard stories of videographers held back from filthy lucre because their excellent video depended heavily on an unlicensed song. If you're unsure, discuss your specifics with a patent or copyright attorney, or just resolve yourself to getting the necessary licenses.
While shooting a special event, I captured a song being performed live. Can I use it?
First off, all the above considerations apply. If the video is for personal use or for distribution to a handful of people only, you're probably OK to use the song and performance.
If your plans for the video go beyond this, try to get a statement signed by the band leader or performer granting you the right to use their performance in your video. With this step, you've basically taken care of the mechanical license for that song. What you haven't done, however, is dealt with the synchronization rights for the song. Someone, somewhere, wrote the song and deserves compensation for that effort. You'll need to track down the song's publisher to secure a synchronization license.
What is a publisher?
A publisher is the "caretaker" of the copyright, handling all the licensing requests, paperwork, payments and other administrative duties. Most artists and songwriters have a publisher (even if it's within their own company) to handle the day-to-day stuff. When you've committed to "I Can't Sing" and are ready to get your licensing squared away, don't try to call Mr. Singer directly. Write to his publisher, instead.
Who do I contact if I want to use a particular song in my video?
Good question. Getting in touch with the right person can be a trying experience. If you have a recording of the song, check the liner notes for a publisher reference--every legitimate recording should have them.
Sometimes, two or more people (each with his or her own publisher) may write the song, or a different company entirely may administer the rights. Often publishers change names, get gobbled up by other larger "umbrella" corporations, or sell off their song catalogs and fold altogether. This makes your job harder.
Thankfully, you do have some good resources at your disposal. Certain agencies handle license- and copyright-administration duties for large bunches of publishers (see sidebar). One of the largest, the Harry Fox agency of New York, handles over 1400 domestic publishers and offers a Web site with convenient search capabilities. Likewise, the Copyright Office of the Library of Congress has an online database you can search. ASCAP and BMI, though not specifically in the business of handling queries of this nature, may be able to steer you to the right publisher. These two organizations have massive databases containing information on the majority of modern music (again, see sidebar).
Once you track down the right publisher, write them a letter explaining what you're up to. Include information on the song you want, your video, how many copies you'll be making (not just selling), your distribution plans, what portion of your video the song makes up and how much of the song you'll be using. If you get a contract back in a few weeks, you've hit pay dirt. Don't be surprised if you get a return letter saying, "Please contact such-and-such publisher instead."
So what will all this cost me?
The cost to use a given song in your video depends on numerous variables, including the popularity of the song, the extent of distribution, the number of copies made, and how much of the song is being used. In the case of the mechanical royalties you'll pay, there is a statutory "compulsory" rate set by the government. As of January 1, 1996, mechanical royalties are at 6.95 cents per composition or 1.3 cents per minute of playing time (whichever is greater), per copy.
Let's do a little math. Say you're making 500 copies of a yearbook video that opens with Sam Singer performing his "I Can't Sing." Mechanical licensing for that number of copies will set you back just $34.75.
Synchronization license fees, on the other hand, rise and fall with the whims of good-ol' supply and demand. And while you may find a way to tap-dance around the mechanical licensing fee, the synchronization license won't go away. Don't panic yet. While you are at the mercy of the publisher, you may be pleasantly surprised at how affordable synchronization rights can be for most pieces of music.
One copyright-administration agency (representing 140 different publishers) charges a flat fee of $25, plus 10 cents per song per copy. Using this example, synchronization rights for 500 tapes containing "I Can't Sing" will set you back another $75. That's just under $160 for licensed music, or about $0.30 a tape. Not bad, especially when compared to production, duplication and distribution costs.
Remember that synchronization schedules vary from publisher to publisher, and are affected by the popularity of the song and/or artists. You could pay substantially more (or less) than these figures. For very small duplication runs, it's possible the publisher will grant you a "gratis" license with no fee attached. Synchronization fees often come down to a judgment call on someone's part. As in every other realm of business, it pays to be considerate and professional when dealing with music publishers.
What is "fair use?"
Cases that fall outside the realm of normal copyright law often end up in the category called "fair use," which primarily applies to educators. In essence, you use excerpts of a copyrighted work in your video for the purposes of education or critique, you are exempt from normal copyright infringement snafus. Two examples that could fall under legitimate fair use: shows that review music and films, and institutions that use clips from popular movies to teach production methods.
Fair use is one of those gray areas of law that judges every video production on its own merits. Not-for-profit programs tend to fare better when scrutinized under fair use provisions, but having a profitable show doesn't necessarily mean fair use provisions don't apply. The less your show appears to "capitalize" on someone else's copyrighted work, the better your odds of being held innocent of copyright infringement. The permutations are too numerous to go into here. Fair use represents an area of copyright law that's in constant flux. If you're unsure whether fair use will cover your production, consult a qualified attorney.
What if I write and record my own piece of music for my video? How do I protect
As mentioned earlier, copyright protection covers a work the instant it's in its final, fixed form. Since it's very hard to prove when a work was completed, registering your work with the United States Copyright Office is the best way to go. Registering a piece of music costs just $20, and requires you fill out a rather simple (by government standards) form. You'll find all the information you need in various circulars available from the Copyright Office. You can even have these brochures faxed to you, though the Copyright Office will not fax the actual forms. See sidebar for details.
To register a musical piece, record it onto a standard cassette, and label the cassette with the song name, your name, and the date. In the case of a composition with words, include a lyric sheet with a cassette copy of the song. You can register numerous compositions on a single tape for the same $20 fee. The Copyright Office mails an official form back to you as proof of registration.
I'm not into the hassle of contacting publishers. What else can I do?
There are numerous other options for legal, hassle-free music. The most obvious is buyout music, designed from the start for video productions and easy, cheap licensing. Some libraries span hundreds of CDs, offering dozens of different musical styles. Some offer a one-time fee with an unlimited-use license, others charge a small amount for each copy of your video sold. See Videomaker's February 1996 issue for our last spotlight on buyout music libraries.
Another obvious (though difficult) option is to perform and record your own music. This could consist of nothing more than an acoustic piano and a recorder, or a full band in your garage. For some types of productions, a gritty, "no-budget" sound is appropriate.
If you have some musical skills, there are many compositional aids available in the form of computer software. All these easy-to-use packages require is a decent soundcard, MIDI keyboard or MIDI tone module. These software packages allow you as much input into the creation of the music as you can handle, and will churn out endless hours of style-specific (and somewhat plastic-sounding) music. For certain background-music applications, this may be fine. If you don't know a treble clef from a treble knob, though, you may want to avoid compromising the production values of your video by adding your own music.
Got a state or community college in your area? Why not link up with a music major? Many students will jump at the chance to compose music for a video production of any caliber. You get music on the cheap, and they get experience and exposure. Some colleges even have "audio-for-video" classes whose students might jump at the chance to adopt your video as their special project. Tangle with a talented group of motivated students, and you could have some excellent music on your hands. Contact an instructor for leads on qualified and available students.
Even if there's no appropriate college in your area, musicians probably abound. With today's powerful computers, synthesizers and digital recorders, folks are making incredible music from spare bedrooms all over the country. If you don't know any such musicians, try posting flyers on bulletin boards at local music instrument stores. Internet newsgroups like "rec.music.makers.synth" are another great place to track down capable musicians and composers.
Why did this whole issue of copyrights scare me so much?
Perhaps because copyright law and licensing are two areas that are very hard to get straight answers about. Hopefully, this article has given you a good shove toward becoming a copyright-savvy videographer. The answer to the copyright riddle is out there, you just have to do a little digging--the resources listed in the "For More Information" sidebar are a great place to start.
Contributing editor Loren Alldrin is a freelance video and music producer.
For More Information
ASCAP (America Society of Composers, Authors and Publishers)
One Lincoln Plaza
New York, NY 10023
Web site offers database of over 68,000 active composers and writers
BMI (Broadcast Music International)
320 West 57th Street
New York, NY 10019
Web site boasts 7.5-million item song database
The Copyright Website
Private page with lots of good information including copyright fundamentals, how to register a work and a "fair use test"
Library of Congress Copyright Office
Library of Congress
Washington, D.C. 20559-6000
202-707-3000 (to speak with Copyright Information Specialist)
202-707-9100 (for automated ordering of forms and circulars)
202-707-2600 (for automated fax-back of circulars)
The Library of Congress Online
The "official" copyright web site--includes link to comprehensive LOCIS (Library of Congress Information System) database
National Music Publishers Association
Harry Fox Agency
Handles licensing for over 1400 domestic publishers, web site includes massive song/publisher index