A friend is wondering about the legality of using popular (copyrighted) music for his new video production business. Basically, he wants to know if he can put today’s hit songs as background music in event videos (weddings, corporate, etc.).
My initial thinking was that it is not allowed, but what if the client provides the music, which the client has on CD. Can that really be illegal? I mean, if the video is for home use, and the customer already has bought a copy of the music for home use, can’t they make a copy of it for themselves for home use?
Here’s the definition of a public performance, from the ASCAP website:
"A public performance is one that occurs either in a public place or any place where people gather (other than a small circle of a family or its social acquaintances.) A public performance is also one that is transmitted to the public; for example, radio or television broadcasts, music-on-hold, cable television, and by the internet. Generally, those who publicly perform music obtain permission from the owner of the music or his representative. However, there are a few limited exceptions, (called “exemptions”) to this rule. Permission is not required for music played or sung as part of a worship service unless that service is transmitted beyond where it takes place (for example, a radio or television broadcast). Performances as part of face to face teaching activity at a non-profit educational institutions are also exempt.
“We recommend that you contact your local ASCAP representative who can discuss your needs and how ASCAP can help you.”
And here’s the answer to the question " I want to record or videotape a song or record. Do I need permission, and how do I obtain it?:"
"If you want to make copies of, or re-record an existing record, tape or CD, you will probably need the permission of both the music publisher and the record label. A music publisher owns the song (that is, the words and music) and a record company owns the “sound recording” (that is, what you hear … the artist singing, the musicians playing, the entire production).
“If you plan to hire your own musicians and singers and create an original recording of a copyrighted song, then you need the permission of only the music publisher.”
So, my non-lawyer answer is yes, your friend would need to pay a licensing fee to use the music. After all, he is using it as part of a business, so why should he expect other businessmen to give him something for free?
The answer is tricky, especially since ASCAP does not apply to the situation you described (if they were recording a live band, that would be different).
The copyright law gives you no right to make a copy for home use. However, it’s not a violation in certain circumstances, mainly when you use “approved media.” The interesting point is that a videocassette is “approved media.” But the “approved media” exemption is only for personal use, and your friend isn’t doing that; he’s selling the tape he makes.
If the owner of the CD recorded the tape, then they could put the music on it. It’s trickier when someone is doing it for business purposes, but I suspect the answer is that royalties will have to be paid.
Chuck, I think the recording for home use only applies when you make a mix tape for your sweetie, or some other non-commerical endevour. Once you do it as part of a business, you owe money.
Case in point–a few years ago, ASCAP tried to charge licensing fees to the Girl Scouts of America for singing songs at their summer camps. This was a public forum, and the songs they were singing were not in the public domain. I think that, due to the incredibly bad publicity, ASCAP eventually modified its demands, but they still have the legal right to charge for the use of their artists’ works.
I assume jdl’s friend is in the business of making wedding videos (like the guy I hired for my wedding), so he would be using the music for profit. That means he owes a licensing fee to ASCAP (or BMI, depending on the artist).
It really doesn’t matter if it’s a recording or live performance; there are licensing fees known as “needle drop” costs. Everytime you hear a snippet of music (over 10 seconds, I believe) in a movie, commercial, or somesuch, there’s a needle-drop charge.
When I went skydiving, there was an option to have the jump videotaped (with the camera mounted on another skydiver’s helmet). They’d then compile a quickie montage of your prep, practice, ascension, jump and landing. All videos used popular rock `n’ roll hits as background music, with the playlist of choices you could have running several pages.
Now, this was a pretty modest operation that ran on what must have been a shoestring budget, so I seriously doubt that they paid any licensing fees for the 40-50 different songs they used regularly. Given that you got the master (they didn’t have any copies and taped over the original footage in a matter of weeks), I suspect they probably just got away with this since , despite this being a copyright violation, it’s not like anybody would ever “know” or the tape would get any kind of broad circulation.
Are there any rules regarding how you can make copies for
personal use? That is, is there anything illegal about the
wedding tape manufacturer letting the customers come in
with their own cds, and showing them how to add the music
themselves, and letting them use the equipment?
I think the difference here is between what you SHOULD do and what you ACTUALLY do. Yes, whenever you use a recording of a song, other than for personal reasons, you should be a licensing fee. But who’s going to force you? ASCAP and BMI agents do routinely visit restaurants, bars, and other business establishments, check to see if they are playing music, then send them a letter demanding payment. Of course, there are a small number of agents, so how are they going to check everyone, especially your friend who is making wedding videotapes?
But if they do find out, they will generally contact him/her and request payment.
There seems to be some doubt about whether it is legal or not to make yourself a copy of a CD album. I assume it is the same is the US, but in Canada consumers can buy slightly more expensive CD-R discs which essentially give the user the right to make a copy of some bought CD. The tariff is then used to pay the recording industry artists.
Given that, it would seem that their is a rule (at least in Canada) that you can make (at least one) copy of your CD album. IF THAT IS TRUE, then can anyone absolutely refute my suggestion that the client is allowed to provide the video guy with the music to create a product which will be viewed by the client himself.