What? You don’t have permission to use that perfect music selection from your record collection on your video? But you used it anyway?
Shame on you. If an upset copyright owner decides to pursue the infringement, your first-time court fines could run as high as $25,000. You could also spend a year in jail–and that’s just for a first offense. Now that would put a rather nasty damper on your videomaking enthusiasm.
Whether or not you need permission to use music depends on what you plan to do with your tape. In this month’s column, we will look at copyright law as it applies to videomakers. We’ll also look at some of the popular, cheaper alternatives for securing music and old footage, so that you can have legal sound and images for your videos.
Is It Really Necessary?
Title 17 of the U.S. Copyright Code grants exclusive rights to:
1) produce and distribute a work;
2) create a derivative work; and
3) perform and/or display the work (if applicable).
The copyright covers all and any original music or sounds applicable to the body of the work. It also covers your particular arrangements of public domain or other material. This means that videos made for profit or any form of distribution cannot use prior copyrighted footage, text, music or audio sounds without first obtaining permission from the artist, publisher or licensing agency–or sometimes all three.
Is it necessary? Again, it all depends on how you intend to use your tape. It’s unlikely copyright law will concern you if you produce tapes for home viewing–even if you dress up them up with the latest musical hits. This is especially true if only a tight-knit group of family and friends will ever watch them.
However, this is not true if you produce wedding tapes, or send your tapes to festivals or plan to make your first video feature. For you ambitious videomakers, it’s time to consider your options under copyright law. Let’s consider each separately.
There are several ways to obtain permission to use material originally created by someone else. The first is public domain. Any work of art whose copyright has lapsed is in public domain–including film, video and musical works. This means that anyone can use the original work without permission.
Works usually fall into public domain after some time, having outlived their (money making) appeal. The copyright owner forgets to renew, or dies or no one remembers who originated the work, anyway.
That such works are in public domain does not mean that you can use any existing recording of them. Recorded arrangements of a public domain work can be, and often are, copyrighted. You may use the work, but you must record your own version of it yourself. Always be careful of public domain works; make sure they really are in the public domain.
Footage and music from any and all works by the federal government, now or in the past, are public domain. If unclassified, you can use them without permission in your videos. Take care, however; what you assume is safe material may not be.
For example: World at War was a TV show, produced by a nongovernment production company. You can use the war footage from that program; it’s noncopyrighted War Department footage. However, you cannot use the titles or the audio that accompany that footage; the copyright belongs to the producers who created the audio and narration (most WWII footage was silent). So, exercise caution when you use public domain footage or music.
Derived Works and Copyright Exception
Derived works are works based on other already copyrighted works through parody or comedy. Copyright law is not likely to affect the work, including the music, if it is not a direct copy of the original. Derived works can be copyright nightmares. Take parodies, which closely follow a copyrighted piece of work. It can be difficult to determine copyright infringement, due to this deliberate similarity.
Copyright exception concerns the performance which uses the copyrighted works of others without permission. The law says such a performance “must be without any purpose of direct or indirect commercial advantage; and it must be without payment of any fee for the performance to any performers, promoters or organizers; and there must be no direct or indirect admission charge.”
The law goes on to say that if there is an admission charge, it must go to an educational, religious or charitable purpose and not to private financial gain. Some festivals try to work under this exception; awarding prizes or trips eliminates this copyright exception, since it represents private financial gain. Copyright exception is a limiting way to bypass obtaining permission; it clearly contradicts itself in its statement about admission charges.
Still, if you want to enter your video in a festival offering prizes or money as compensation, or if you have any intentions of distributing your videos, forget copyright exception.
Fair Use Act
The Fair Use Act is another confusing grey area in the copyright laws. This Act allows nonowners of the copyright to use the copyrighted material in a reasonable manner for the purposes of criticism, comment, news reporting, teaching, scholarship or research without the copyright holder’s consent–regardless of the monopoly granted to the owner by the copyright. The same applies to copyrighted sound recordings used in film or videotapes.
Loop holes abound in “criticism, comment, news reporting, teaching, scholarship or research,” inviting videomakers to step blindly into problem areas. Many cases end up in court.
For example: under the Act, you can use small sections of a copyrighted music work in educational or informational videos, because the video will not affect the market of the full copyrighted music. But even here, the copyright owner can contest the use.
Another snag: the Fair Use Act has also protected many schools and colleges, which have built entire videotape libraries without worrying about copyright.
While the rationale for the Fair Use Act may be an honorable one, the Act itself desperately requires a rewrite.
The simplest way to avoid a costly copyright confrontation is to seek permission for the music or sounds you want to use:
Somewhere on the label of the record or its album cover, you will find the words ASCAP (American Society of Composers, Authors and Publishers) or BMI (Broadcast Music, Inc.) or both. These two organizations track the royalties due for musical use and help arrange permission to use copyrighted music in other works.
Fees for such permission vary greatly. I’ve obtained several permissions for free, simply by stating in my request letter that: 1) the music was for nonprofit student films and videos; and 2) the copyright owner would receive on-screen credit.
But the fees covering copyrighted music in for-profit videos can prove very expensive. Permission to use current hit songs by recording stars can run thousands of dollars. One way to lessen the costs considerably is to seek permission to record the song with an unknown artist. This can bring the cost down into the hundreds.
Obtain permission by writing request letters to both BMI and ASCAP. State the music you wish to use–composer, song name, artist, label and so on–and way you wish to use it. Expect to wait a few weeks for a response from these busy companies. They may write you back asking more specific questions. (See the sidebar for ASCAP and BMI addresses.)
Be honest; don’t give them a reason to revoke permission later. Remember, there’s no guarantee you’ll get permission to use anything. Just keep trying.
Play It Yourself
The best possible way to avoid the hassles of copyright, especially if you want a particular style of music, is to write and record your own music if you have such talents. If you’re not a composer but you can play, at least you can make use of public domain material. If not, ask musically-talented friends who write and perform to help.
Either way, take the necessary copyright precautions protect your and your friends’ music and video. Copyrighting your own material is easy. Obtain a Copyright Form PA from the copyright office in Washington, D.C.; enclose a $20 filing fee and a copy of the work. You’ll receive a copyright that lasts your lifetime plus 50 years. Pretty cheap insurance.
Before you even apply for copyright, make sure to mark your video with a one-line copyright notice marked by:
1) the symbol ;
2) the abbreviation Copr.; or
3) the word Copyright.
Follow this with the date such as ” 1994.” Follow this with a line stating “All Rights Reserved” to protect your work overseas. The law no longer requires you to mark your works but the Copyright office suggests you do so anyway to protect certain rights. (See the sidebar for U.S. Copyright Office address.)
Probably the simplest approach to obtaining clear and legal music for your videos is to buy the music from a music library. Music libraries sell music with a lifetime license for the licensee’s use. Music libraries, or their contracted employees, compose, perform, record, edit and copyright the music solely for sale by license to videomakers just like you.
True, when you buy such music you share it with other buyers. But the chances of your using the same musical cut in the same kind of scene as another videomaker is pretty slim.
And true, Eric Clapton did not make these recordings. But the quality of the music is generally high, and usually available in the digital CD format. Sound effects are also available.
If you choose to use a music library, you’ll be following a time-honored tradition of film- and videomakers. It started with the old needle down or needle drop system, in which the videomaker paid only for a specific selection. Needle drop is still around; what you pay varies according to how much you use the selection. Fees generally run from $50 to $150.
If you want to buy a selection to use one time only, go for the one time use right option. ASCAP provides information on one time uses over the phone.
There’s also the production blanket option, in which you buy music for a given production. You may use as much of that music within the given production as you like, but only in that production.
The best and simplest way to go: the buyout library. Here, you buy a set of CDs loaded with different music styles. You may then use the music whenever you like on any number of tapes. Even better, most music libraries offer updates when new music becomes available, as well as sound effect disks.
Buyout libraries are not too expensive, considering what they offer. Many advertise full music sets of multiple CDs for less than $299. Some buyout music publishers offer single CDs for as low as $30. This is hard to beat.
However unlikely, having a copyright holder successfully prosecute you for infringement is an expensive proposition. First-time statutory damages can range from $500 to $25,000 or imprisonment of up to one year or both.
If you are a second-time offender, you’ll pay up to $50,000 in damages and spend two years in jail or both. If the court proves willful infringement, the fines can top $100,000 just for the copying of already copyrighted materials.
So take copyright law seriously. If you follow the information given here, you should have no problem finding the right sound and images to grace your video masterpiece.
Doug Polk is Videomaker‘s technical editor. Send e-mail to 71161, email@example.com.
Where to Get Permission
Broadcast Music, Inc.
320 W. 57th. Street
New York, NY 10019
87830 Sunset Blvd.
Hollywood, CA 90069
American Society of Composers,
Authors, and Publishers
1 Lincoln Plaza
New York, NY 10023
6430 Sunset Blvd.
Los Angeles, CA 90028
U.S. Copyright Office
Register of Copyrights
Library Of Congress
Washington, DC. 20559