When I first posted here a couple days ago, I was responding to the very first question in this thread, which was:
"I want to know if it's ok to use copyrighted music for your clients."
There is only one proper answer to that -- it is a violation of copyright laws to use copyrighted material without permission of the copyright holder.
If you are a professional, in my opinion, you recognize that reality. It is the law of the land, and in another post, I have provided links to that law.
To get that permission, a fee often must be paid to license the material. In motion pictures (multimedia, video and film), there is a second fee for synchronization rights.
Remember, I have already stated I am not a lawyer, just a seasoned professional writer, publisher, producer and videographer who has had to deal with these issues during my 30 plus years of professional experience. If you think I'm in error, I'd appreciate seeing some links so I could learn too.
Now we come to the second part of the question which could be stated this way....
Are there loopholes?
My answer to that is, no, not really. Some person wrote a song (in this case) and they are entitled to be paid for their talent, skill and effort, and we have a mechanism to make that payment in our copyright laws. Why should another professional, in this case a wedding videographer, be entitled to make money off the musical artist without paying for it? The music adds emotional impact to the video, and the artist is entitled to payment for their important contribution to your work.
One common loophole people seek to use, which I mentioned previously, was "fair use." Those who clicked on my link to the law itself realize that it is not an entitlement to use someone else's copyright material without permission, but a possible defense if you get sued by the copyright holder.
There have been other loopholes described on this site, and they seem pretty lame to me.
I certainly don't want to quote anyone else's post for fear they might think I am making a personal attack on their ethics... I am not... I am just trying to answer the original question based on my experience. Be clear... we are discussing professional standards here, and it would be wrong for anyone to take personal umbrage from what is said in that regard.
Here are the general categories of other loopholes I have seen or heard at different places, and they are not valid in my experience:
1. The "I know a lawyer who says..." loophole. First -- second-hand legal information is always suspect. Second, here is a well-known rule of thumb for people in any business: "Advice you get from a lawyer for free is worth exactly what you paid for it." They disclaim even when you pay! Third, “permission" from a lawyer doesn't count because they are not the one who have to pay damages if you lose a law suit. Fourth, there is a lot of case law on copyright infringement, and you could check it out for yourself. I know I have.
2. "The law doesn't apply to me, I'm just a wedding videographer" loophole. The implication here is that since you are creating a custom, short-run product, you are exempt from the laws of the land. The fact is, as professionals, we pay for all the components of a production including the camera, lights, sound, tape ... and... intellectual property rights of others, regardless of whether the production is large or small. Size of the production is not a determining factor when it comes to getting legal permission to use other people's property in our work.
It's a slippery slope... if people don't think copyright laws apply in business, then income tax laws must be questionable too. People are always looking for loopholes when it comes to that weekend income, and think the law doesn't apply to them in that area too. If anyone thinks that wedding videos are exempt from the intellectual property right laws, I suggest they send copies of your work to the artist's lawyer and see what happens. Personally, I don't think a test case just for wedding videographers is needed... the law is clear and it does not say wedding photographers are exempt from it.
3. The "It's not stealing if you don't get caught...." loophole. If you put unlicensed music on a web site or in a multimedia presentation, film or video, and it gets noticed by the copyright holder, you're going to get sued, or a 'cease and desist" order at the very least. There are copyright notices everywhere, an FBI warning on videos, and the RIAA is suing college students and moms.... we know it is against the law, and that the law applies to all creative work. On that basis, I would suggest it is illegal, unethical and unprofessional to use unlicensed intellectual property on the assumption that it's okay as long as you don't get caught. "Not getting caught" is the hope of every criminal out there.
A positive approach to the issue
For newbieÂ’s out there who do not want to get sucked down the black hole of trying to find some loophole to keep from getting permission from a copyright holder as legally required/and or paying a license fee, I suggest you follow these professional steps:
1. Be ethical from the beginning. Here is the notice I have on my web site, so people know I am a professional and will not break the law or compromise my integrity:
"LEGAL COMPLIANCE: Our video productions must adhere to state and federal laws, including copyright laws. We are unable to use any material in a video which may infringe upon copyright holders. Covered under these laws are copyrighted music, artwork, images of certain celebrities and various kinds of broadcasts. We'll work with you to ensure that your video production is in compliance with these laws."
2. Charge enough to cover your costs and make a profit. Make sure you include all your costs, including the costs of intellectual property rights licenses. Yes, wedding photography is highly competitive... fees are far too low in my opinion. But, of course, people can afford to work cheap if they are using bootleg materials, not reporting income and the unusual things you see in business. If you cannot cover your costs and make a profit, then maybe another more lucrative form of videography might be better for you.
3. Use royalty free music. There is an enormous amount of inexpensive music out there that you can purchase once at very reasonable costs and use it legally over and over again without additional payments. I personally use
http://www.cssmusic.com a lot, but I notice Google yields 8.5 million hits when you type in "royalty free music" so there are lots of choices to keep legal. Yes, I know the bride and groom always want "their song" on the video --just tell them upfront that it comes with a price, because you won't "steal" it off a CD.
4. Last, but not least... Get permission from the copyright holder!!! I know, too simple, but there you have it. You get that permission by contacting the copyright holder's publishing, usually ASCAP or BMI. Submit your request to them in writing. Sometimes it takes a while to hear back, so you can't do it at the last minute. They may grant rights for free, or they may charge a fee. It is possible they may even ignore your request. But by requesting a license you can be assured you have taken the correct legal steps and have acted professionally.
