Most people know that audio visual productions like documentary, theatrical or animated movies can be protected by copyright. An audio track — music, sound effects, and/or vocals — by itself can also be registered in the U.S. Copyright Office by the person, persons or organization that created it. Copyright registration allows the copyright holder to bring a legal action for copyright infringement against anyone who, without permission:
- Produces the copyrighted work in copies or phonorecords;
- Prepares derivative works based upon the copyrighted work;
- Distributes copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease or lending;
- In the case of musical or dramatic works or motion pictures and other audiovisual works, performs the copyrighted work publicly;
- In the case of musical or dramatic works or pictorial, graphic or sculptural works, including the individual images of a motion picture or other audiovisual work, displays the copyrighted work publicly; or
- In the case of sound recordings, performs the copyrighted work publicly by means of a digital audio transmission.
Readers will learn how to decide whether a sound license is required and if so, whom to contact and how.
When you, as a moviemaker, decide to incorporate someone else’s sound in your work, you will not be able to make or use copies or derivative works from the original unless you obtain permission from the copyright holder. The most common way to obtain permission is to acquire a written license granting you the right to use the work. Although licenses for large-scale movie productions can be expensive, occasionally a copyright holder can grant a moviemaker the right to copy the music for very little or no money. It’s worth asking for. Just remember to get that permission in writing.
Types of Licenses
As a videographer, usually you will have no need to obtain a general music license, which covers music (not videos) used in indoor and outdoor forums like amusement parks, hotels, and theme parks. You will probably not need a broadcast or a television license for performing the music alone, either. Most likely, you will not be interested in a so-called mechanical license required to make and distribute sound recordings.
What you would most likely be interested in, however, is a synchronization license, which is required to make and distribute videos that include words and/or music. You can obtain that license from the copyright owner — usually the publisher — of the work. A licensing association (e.g., ASCAP, BMI, SESAC) can help you locate the publisher. Here is the contact information for all three organizations:
A synchronization license however, does not include the right to use an existing recording (master) in association with a new video. You will need to obtain an additional master use license in order to combine an existing, specific recording with your new video project. You can request a master use license by contacting the record label, which is often the owner of the sound recording.
You will also need an Internet license if you wish to upload your production onto a web site. Contact the appropriate licensing association for such an Internet license.
Since you may require a synchronization license, a master use license, and/or an Internet license, a sample universal form letter is shown in the sidebar. Choose one of the items in each square bracketed [ ] listed in the letter.
You don’t have to offer to pay a royalty fee, as the receiving party may grant you a license free of charge. You will find out soon enough. Mention that you are part of a non-profit organization if that is the case.
Finally, emailing the request is appropriate, but if you decide to mail the letter, be sure to include your name and address on the return address of the envelope and in your letterhead.
The practice of “sampling” involves the incorporation of a short segment of a previous recording into a new recording. Although this practice started in the realm of music recordings, it has made its way into the world of video recordings. In a Ninth Circuit case, Newton v. Diamond, the Beastie Boys, in their song “Pass the Mic,” sampled three consecutive notes of jazz flutist James Newton’s piece, “Choir.” Newton sued the Beastie Boys, arguing that although the Beastie Boys obtained a license to Newton’s recording of the song, they did not do the same for the underlying composition.
The court, in its analysis, made several interesting points. First, it noted that, for an unauthorized use of a copyrighted work to be actionable, the use must be significant enough to constitute infringement. In other words, the mere act of copying a copyrighted work is not enough for the copyright owner to sue — the copying must be of sufficient magnitude (a subjective standard) for suit to be filed. In this case, even though the Beastie Boys copied Newton’s “Choir” exactly as it was recorded, the court concluded that the use of only three notes of “Choir” was de minimis, or so minimal that it was insufficient to sustain a legal judgment. The court considered not only the length of the segment, which was extremely short, but its contribution to the overall composition of “Choir,” which was insignificant since it did not represent the song as a repetitive chorus or distinguishing opening riff might.
Similar types of sampling have been prevalent in videography, though there have been no cases attempting to protect such video rights. This may be because individuals who mix different video clips together to create new, derivative works are under the radar, often being small, independent videographers, reducing the chances of expensive lawsuits filed against them by production companies. As an independent videographer, you should nevertheless keep in mind the legalities of sampling when you create videos for distribution. What one person might think is a minimal use of a previously recorded video, the author of the original might think is substantial enough to file suit. If a large production company wants to make you an example of unlawful activity, you can be exposed to such a legal action.
With more than two million wedding ceremonies taking place annually in the United States alone, both still and video photographers are in-demand. Still photographers, of course, are not concerned with sound licenses. But videographers must be aware of background or incidental sounds (e.g., dance music) performed by the original artist(s) via a disc jockey or a live performer and band.
If you happen to capture any background sounds protected by copyright in your video without obtaining permission, you may be liable for copyright infringement. According to a federal circuit court, “Any substantial part of a composition is performance.”
Assume that you have a video recording of a copyright protected sound. Licensing agreements with ASCAP, BMI and/or SESAC may allow the band or disc jockey to play the music, but your video may not be the subject of those agreements. If you are not a proper sub-licensee, your video may infringe the copyright. In other words, asking the band if they have performance rights will not necessarily apply to your video production. If the band doesn’t have such rights, that complicates matters further for the band and for you. Even if you don’t sell copies of your video, you can still infringe someone else’s copyright rights.
There are several ways to eliminate liability of infringement from incidental music. First and foremost, be aware of the environment when shooting your video and try to reduce the likelihood of capturing unintended sound. Invest in a good set of directional microphones, perhaps. If the sound is already recorded, then you can either replace the copyright music with royalty free music, or you can attempt to obtain a license to use it. Some websites, such as www.slynth.com, offer licenses. A master use license, which can be obtained only from the owner of the recording, such as a record company, is for previously recorded material. These agreements are legal documents and can be drafted by a lawyer or obtained through an online legal resource website. The fee for obtaining a license varies. A helpful website is www.licensequote.com, which provides estimates of the fees.
Alternatives to Seeking a License
No creative work (movies, recordings, sheet music, etc.) can be under copyright if it was created before 1922. That’s the magic date before which all registered copyrights have expired. So you can find old music books or musical scores, for example, and play the music on your musical keyboard or your guitar for your videos. You can’t use a recent, commercial recording of old (pre-1922) music, however, since the performers or their publishers would have copyright rights to their specific performance, even though the underlying musical piece is out of copyright.
If you plan to use someone else’s copyrighted work without permission, you can do so as long as your intent is to make a video for criticism, comment, news reporting, teaching, scholarship or research. That’s called fair use. Unfortunately, wedding videos, school performances and entertaining scenarios do not generally fall within one of the categories above.
A popular way to obtain royalty-free music is to purchase buy-out music, available from some of the organizations that advertise in Videomaker magazine.
Here’s a final suggestion: if you have musical talent, compose and perform your own music or hire someone to do it for you. You will need a written agreement with that composer-performer to be sure you own the copyright rights to the work that he or she creates for you.
Sample Synchronization License Request
[Mr./Ms.] ___________, President
[Publishing Co./Licensing Organization/Record Label]
City, State Zip code
Dear [Mr./Ms.] ___________:
I am an independent moviemaker and wish to obtain a [synchronization/Internet/master use] license to use “song” written by “composer” in my production, entitled, “video title.” Kindly grant me permission to use “song” under the following conditions.
My movie is a [wedding video/anniversary video/birthday video/confirmation/baptism/bar mitzvah/documentary/music video/educational/industry/commercial/student play/ scenario] running about ___ minutes. I intend to use [a portion of/the entire] “song” as background in the title or body of the movie and will display the name of the publisher, the recording artist(s) and the licensing organization in my credits. I will be happy to send you a copy of the movie for your review, upon request.
I do not intend to make more than “number” copies of my movie, nor do I intend to broadcast my movie or show it to any group of people beyond [family and friends/family and friends of the bride and groom]. However, I may enter my movie in one or more movie contests, so please consider this a request for a festival use license, also.
Thank you for your consideration,
[type and sign your name]
LICENSE GRANTED TO “YOUR NAME”, dated ________________.
[to be dated by the company]
[Name of Publishing Co/Licensing Organization/Record Label]
Mark Levy is an intellectual property attorney who has won awards for productions in amateur domestic and foreign movie festivals.