While videographers discuss the issues surrounding using copyrighted music amongst themselves in various threads on multiple message boards, the amount of misinformation and speculation as to what is legal and what is not is staggering. Simply put, if an event video includes any copyrighted music, whether it was recorded at the event or not, then the videographer needs to pay licensing fees to use it legally.
Even though the vast majority of videographers have used copyrighted music in one form or another, trade organizations have thus far kept silent on the legal ramifications of this approach. In today's litigious climate, when multinational recording industry conglomerates try to prosecute 12-year-olds for downloading music illegally, the relative inattention to this issue could result in some severe nastiness in the future. This is especially true for event videographers, who not only illegally distribute music (in a sense), but also profit from its use. Some videographers advertise on their Web sites that they'll include their clients' favorite songs in their videos; a few even charge more for the inclusion of additional songs.
No litigation has been filed to date against infringing videographers in the U.S., and "you may only get caught one in a million times," says Walter McDonough, general counsel for the Washington, D.C.-based lobbying organization Future of Music Coalition. "But that one time might result in a five figure settlement."
This article will introduce you to the wild and wacky world of licensing music for video, while suggesting ways in which videographers can use music that won't violate copyrights, and contend with clients who expect to have their favorite tunes in their videos. Finally, we'll discuss a system introduced in Australia that could serve as the model for small-scale music licensing in the U.S., and why it might never work without the advocacy of a unified voice for videographers.
Terms of Engagement
There are two types of licenses associated with the legal use of copyrighted music by videographers: synchronization and master use. Synchronization licenses require the payment of royalties to the songwriter(s) and/or publisher that own the copyright to the music for the right to synch a particular song to film, video, commercial, radio, or even an 800 number phone message. Master use licenses represent the permission of a record company to use a specific recording of a composition—as in the case of when a popular song is taken off of a prerecorded CD. If you want to use a prerecorded, copyrighted song, you need to obtain both types of licenses. "If it's a cover band, you just have to get permission from the publisher," explains McDonough.
Without these licenses, any use of copyrighted music in commercial video projects is illegal. (If you're streaming instead of simply distributing via DVD or VHS, then getting in line with the law isn't as clearly defined. While you still have to deal with the two aforementioned licenses, there are also issues involving using the music in what can be considered a public performance, which is a whole other can of worms.)
To obtain either a synchronization or master use license, you have to deal with the publisher and recording company individually for each song that you want to use. "Because synch does not fall under compulsory license guidelines, the negotiation of each license has to be handled on an individual basis," explains Laurie Jacobsen, a representative of the Harry Fox Agency, which handles licensing for the National Music Publishers Association. In 2002, the Harry Fox Agency discontinued their synchronization license services. "Our clients preferred more and more to handle this type of licensing in house, and HFA could not continue to handle the balance of the work on a cost-effective basis." Other music publishing associations like BMI and ASCAP don't issue synchronization licenses either, although SESAC does include an online registration form for requesting such licenses.
The problem for videographers who need to negotiate with individual companies for the rights to use copyrighted music is an issue of scale. "It takes a certain threshold before they care," explains McDonough. "They can't do a transaction for less than $1000," McDonough says, due to the extensive legal and transaction costs associated with drawing up custom license agreements. Considering the fact that the average wedding videography project bills out at $2000 or less, videographers are faced with a hopeless situation. [See the sidebar "Taking the Law into Your Own Hands" for information regarding the ways in which some videographers have attempted to work around this out-sized system.]
Be Original…Or Not
If you want to avoid this whole mess altogether, consider applying the same artistry you bring to video to the audio side, and create the background music yourself. This doesn't necessarily mean mastering a musical instrument or composing an original score. With the advent of powerful, loop-based music composition programs like Apple's Soundtrack and GarageBand, SmartSound's SonicFire Pro, and Adobe Audition, anyone with musical leanings and technological acumen can create professional-sounding transitions, songs, or even entire scores, if so inclined.
All you need is the software, the skills, and the time. GarageBand is a standard component of iLife, so most Mac-based editors should already have it at their disposal; SmartSound bundles a version of its software with a variety of video editors; and Audition is available in both versions of the Adobe Video Collection. But even with availability a given, there are limitations, primarily due to the additional time needed to arrange your own music. Since many videographers already complain about the number of hours that they spend on projects versus the income they generate, composing anything more than short transitions between scenes can be extremely cost-prohibitive.
Luckily, there are plenty of people out there who've already spent the time to compose original scores but who don't have any Top 40 aspirations. The music that they create can be found in royalty-free music libraries all over the Web. Royalty-free music isn't exactly royalty-free; it's just that all of the royalties have been incorporated into the cost of the song. When you purchase the song, you agree to abide by the terms of the license with regards to how you use the music. Shockwave-Sound.com is one such royalty-free music library. "All of our music is sourced from a team of approximately 20 ‘on-staff' composers and producers from around the world," says Shockwave-Sound Webmaster, sound engineer, and composer Bjorn Lynne. "Customers can use our music on as many products as they want, but over 500 copies"—or discs—"they start to pay a few dollars extra, above and beyond the $29.95 licensing fee."
If you choose to use royalty-free music, be sure to read through all of the details of the music license thoroughly to ensure that you comply with and don't abuse the rights associated with your purchase. How much of this type of music you can use depends a great deal on your project's budget, as each additional song that you purchase can cut into your bottom line. Look for royalty-free music that allows you to repurpose songs over multiple projects to help spread out the cost.
Considering the exorbitant price of licensing copyrighted music (i.e., popular songs), the potentially significant cost of royalty-free tunes, and the amount of time it would take to create your own music, some projects might be best served by hiring someone to compose music specifically for that video. If your client has a friend or knows a band capable of serving this function, they'll usually work at a discounted rate; some might even record a track for free as a favor or gift to their compatriot. Even when it's all among friends, McDonough says, "I would suggest that they have a lawyer draft a release that would license the musical work and also grant permission to record and film the band."