Legalities of copyrighted music in home movies

Factual Questions
1

I have a question about the correct answer to an argument that crops up from time to time on the the legalities of using copyrighted music in home movies.

Here’s the setup: You have a home movie, let’s say of a birthday party. Completely private, only you and your family ever have or ever will see it. You add a musical score to keep it interesting.

Opinions now diverge. On one (very vocal) side, you have those that scream copyright infringement. It doesn’t matter if it’s a home movie, it doesn’t matter that only you and the family featured in it will ever see it, it doesn’t matter if anyone ever sees it. The rights must be paid for the music.

On the other, more sane, side, you have those that see no problem here. Adding music after the fact would be no different than playing it during the party itself, and you would assuredly not pay royalties for that. It’s just a private, home movie intended for personal use–not something to be distributed, for money or for free.

Now, I personally know which side I concur with and unhesitatingly dismiss the other as sheer stupidity, but since law doesn’t always reflect what happens in the real world, I wanted to know: which side is legally correct?

2

No direct answer to the OP - but if you film them singing Happy Birthday, you owe royalties on that :wink:

3

If it’s just your immediate family then no problem. Once you start inviting “outsiders” and the number of guests gets up to about 15 then it legally becomes a “public performance” and you would technically owe royalties. Of course, no one is going to knock on your door to collect but that is how the law works.

4

There are two issues here: copyright and licensing.

The licensing issue is easily disposed of. A movie for friends and family is not a public performance, and thus no license is needed. If you were to charge people to view, or advertised a free performance, that would change things, but as you indicate, that’s not the issue. So licensing is no problem.

As far as copyright is concerned, you are making a copy, which makes you potentially liable for an infringement. There would be no problem if you copied the music onto a tape (since the tape is approved media) and played it, but copying onto a CD (which is not approved media) would be an infringment.

Of course, the copyright holder would have to find out about it and decide it was worth their while to sue you for it, which is highly unlikely.

So you do not owe any royalties for playing the music. It is theoretically possible that you might get sued for infringement, depending on how you recorded the music, but that’s not likely to be any issue.

5

I have never heard of this issue of “approved media” versus unapproved media. Do you have a cite for it?

6

In the US, there was an act (the Audio Home Recording Act?) which specifically made it legal to people to copy their recordings to tape–analogue tape (Compact Cassettes, but presumably other formats as well).

Digital media such as Digital Audio Tape was not covered by this, because it uses the same sampling frequencies as CD and can carry perfect copies of CD content. The fight over this delayed DAT by several years and may have contributed to its non-success in the consumer market.

Eventually the Powers That Be came up with the Serial Copy Management System, where content producers could set a flag in their CDs to permit or forbid copying. Approved digital recorders are supposed to honour this flag. There is also a setting where the recorder would make a copy, but then set the copy’s flag so that no further copies could be made from it.

These digital recorders included DAT recorders, Minidisc recorders, and standalone audio CD recorders.

I believe the media had to include provision for recording this flag. In the case of MD and DAT, this wasn’t a problem, but CD recording drives were already in wide use in computers using already-designed recordable-CD media and drives that did not incorporate the flag.

New approved CDs appeared with the label “for audio use”, but because people started to use their computers and data CDs to make copies, the recordable CDs for audio, and the standalone audio recorders themselves, were never as widely spread or as incredibly cheap as regular data CDs and recorders.

In Canada, where I live, the experience was somewhat different: there is now a levy on all CDs, MDs, DAT tapes, etc, and recorders, that compensates the recording industry for presumed levels of digital home copying. Digital home copying of audio from media you already own is therefore legal in Canada. (Copying DVDs and downloading audio or video are different issues.)

Since the US market is so much larger, and the technical standards for devices are mostly the same, we never saw a great difference in availability of recorders. AFAIK, non-SCMS audio recorders are legal in Canda, but don’t quite me on that–I might be wrong.

7

IIRC if you buy a song from iTunes music store, you are specifically allowed to use it in your home movie. Can’t find cite, but I thought I read that.

Brian

8

Well, 17 USC sec. 106 says, in part, that the owner of a copyright has the exclusive rights “to prepare derivative works based upon the copyrighted work.”

Going to the definition of “derivative work”, it says:

To me, that says that putting a soundtrack on your home movies is technically illegal, as you are creating a derivative work without permission.

9

The litmus test for copyright infringement vs. fair use is:

Does your use of the material in some way deny the copyright holder of revenues to which they could otherwise expect to be entitled, either from distribution of copies of the work, or from licensing the work for public performance.

IANAL, but as long as you are not showing the film to large groups, the public performance test fails, and as long as you are not distributing copies the distribution argument fails. Fair use of a legally obtained copy of a sound recording, after all, does include the right to make a single copy of it for your personal use. While use in a film may not fall under the strict dictates of fair use as spelled out in law, as long as you don’t try to sell it or show it publicly, I would have a hard time figuring out why you wouldn’t be in the clear.

I don’t think it counts as a “derivative work”, unless your film is somehow based upon the music you are using.