The scenario is simple: background music, either live or recorded, is playing while you are videotaping a scene. Explaining the law in regards to copyright infringement is, unfortunately, not as simple. Essentially, any background sounds protected by copyright that you include in your video, without obtaining permission, could make you liable for infringement. According to a Federal Circuit court, “any substantial part of a composition is performance.”
At the heart of the issue, you, as the videographer, have a video recording of a copyright-protected sound in your video. 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 sublicensee, 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 but not for you. In any case, even if money will not be exchanged for your video (i.e., you will not sell or profit from it), you are still infringing the copyright in your video.
Trying to pin down definitions for the words “substantial” and “background” is difficult. A formal legal concept, de minimis non curat lex, or “the law does not care about trivial matters,” could apply to the scenario as described. Another complication is how ‘far’ in the background the sound is heard. That is, how the copyright material sounds in relation to what you are recording. The “exclusive right of the owner of copyright in a sound recording… is limited to the right to duplicate the sound recording” that directly or indirectly recaptures the actual sounds fixed in the recording.” (17 U.S.C.§114). And, while not many cases have been brought against noncommercial or independent videographers, it is possible that a copyright holder may want to set an example and file suit accordingly. Unintentional copyright infringement, like the scenario described above, can result in having the physical material (i.e., the video tape or disc) impounded and/or destroyed, along with either remedy of actual damages and profits received or statutory damages between $750 and $30,000 plus the plaintiff’s attorney’s fees. So, taking proper caution is likely to be in your best interest.
The fair use provision of the Copyright Act (17 U.S.C.
§107) allows for the use of copyright material without permission, but only under certain guidelines. More specifically, in 1994, a U.S. Supreme Court case affirmed the four factors that determine fair use. The first factor is the purpose and character of the use, including but not limited to whether such use is of a commercial nature. Second, courts consider the nature of the copyrighted work. That is, how closely does the material meet the criteria for protection under copyright laws – “quality”? The third factor is similar to the second one, but instead focuses on the amount and substantiality of the portion used in relation to the copyrighted work as a whole – “quantity.” The fourth factor in determining fair use is the effect of the use upon the potential market for or value of the copyrighted work.
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 could either replace the copyrighted music with royalty free music, which can be found by your favorite search engine, or you could 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 (e.g., 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 amount you will have to pay varies. A helpful website is www.licensequote.com, which provides estimates as to the fees.
Deciding which option to pursue is a matter of personal choice. The information in this article merely outlines the issue of wild sound and provides options. The safest thing to do in the aforementioned scenario is to obtain a written license to use the material, even if it is in the background and unintentionally part of your work, or to edit out the wild sound.
Attorney Mark Levy specializes in intellectual property law. He has won many amateur moviemaking awards. Mike Szydlo is a recent graduate of Binghamton University with B.A. in Philosophy, Politics.