The Nonlinear Editor: The Music of Chance
Posted Apr 2, 2006

There's an old story, recounted in Paul Auster's The Locked Room, of an Arctic explorer named Peter Freuchen who hunkers down in an igloo to avoid roving wolves outside. Once inside, he finds that every breath he exhales freezes to the inside of his igloo. So with each breath the walls get thicker. If he stays in the igloo, and keeps breathing, eventually there will be no room for his body. Doing the basic thing he needs to do to survive will kill him.

It's kind of the ultimate Catch-22, and in a way it makes all the paralyzing frustrations we encounter in our professional lives seem relatively trivial; frozen by indecision beats frozen to death any day. The main difference is that in our businesses we can choose to act one way or another and suffer the consequences, and in most everyday professional situations, that's just what we do.

Do you use copyrighted music in your event video productions without securing a license or paying for it? No need to answer out loud, or even raise your hands—it's better if you don't. You probably have a vague idea about whether it's illegal, and your own opinion about whether it's moral; that is, if it's a crime, and if that crime actually has a victim. And your answers to those questions may or may not guide your actions. (Scroll down for a READERS' POLL on this issue.)

The reason I bring up the igloo analogy is that if you give the subject any thought at all, the choice you make is in some measure motivated by fear: either you don't use copyrighted music because you're afraid of getting caught, or you do because you fear that you can't hold your own in your market if you refuse to use the popular songs that your competitors deliver without hesitation.

Every time we run an article that even mentions how a song was used in a particular video—when the propriety of using that song isn't by any stretch the subject of the article—I receive a number of letters asking if said mention was an endorsement of the practice, or whether the letter-writer's assumptions were wrong and there's some unknown loophole in the law that made it all OK. More often, it's the latter; they have a gut feeling that using copyrighted music without permission is both illegal and wrong, but they don't really know what the law is or how to find out. Most people figure it's probably illegal, even if they consider it inconsequential, or even indispensable—a necessary evil to keep up with the blithely infringing Joneses. But they'd like to know the truth all the same.

Fortunately, you don't have to go to your local law school library, flick the switches that move the shelves apart so you can browse (they have way too many books in those places), pore over statutes and case law, and find the answers for yourself. There's a book called Media Law for Producers (Fourth edition, Focal Press, 2003, $39.95 on Amazon.com) by L.A.-based entertainment and intellectual property attorney Philip H. Miller. You won't be qualified to practice that type of law after you read the book, of course, but you'll certainly have a better understanding of how it applies to you and your business. For personal event videographers, it's at the very least a wake-up call; for anyone doing high-level corporate or advertising work, it's a mandatory plan of action.

There are three key aspects of copyright law that apply to the use of copyright-protected music in event video, and that's what we'll focus on here. First is the simple issue of incorporating a copyrighted work, in part or in its entirety, "as part of a production without securing the copyright owner's permission." Fair use and compulsory music licensing are exceptions to this rule, but in commercial uses—even those that don't specifically "sell" the song—these exceptions don't apply. At issue here is not just your actions' effect on record sales (which is negligible or non-existent), but the rights of copyright owners to control and be compensated for the use of their work in for-profit derivative works. This is the official position of the Recording Industry Association of America (RIAA)—the national organization that represents record companies and their copyrights—according to RIAA senior VP Michael Huppe.

The other key copyright issues, which apply in most event video uses, are synchronization and master recording rights. If you're planning on using not just a song but a specific recording (which is the predominant practice in event videos that use copyrighted materials), you are required to secure a synchronization ("synch") license from the music publisher (for permission to use the song) and the record company for rights to the recording. "This type of a combined license," Miller says, "should include a representation and warranty by the record company that it has the right to license all of the relevant rights to both the sound recording and the underlying song." Limited-term licenses are cheaper than "in perpetuity" licenses, which is good news for producers of corporate videos and commercials that have short-term shelf lives, but bad news (in theory) for personal event videographers, whose businesses are founded on the long-term value of their work.

But it's still important to restrict the rights you request to how you plan to use the song—you don't want to pay for performance rights, for example, when you have no intention of performing the song. But synch and master recording rights almost always apply. Miller's book includes a sample synch license; it's informative for several reasons, not the least of which is that it reminds us of one reason videographers rarely even try to secure these kinds of permissions: Miller's sample license calls for a $1,500 fee, which is hardly cost-effective for a videographer who may be charging as little as $800, but rarely more than $8-10,000 for an entire production.

The sample license also includes the right to distribute the production on videotape or DVD, which brings up another embedded issue: "mechanical" licensing. In the past, mechanical rights had to be secured through a separate license; because DVD or VHS distribution is commonplace today, it's typically lumped in with synch and recording rights.

One of the challenges facing seekers of synch and recording licenses (besides the arguably disproportionate price of those licenses, of course) is that they currently have no other legal option but to bring their request to the specific music publisher and record company, in all instances. (You can do so through an agency that specializes in these types of requests, but you will incur additional expenses.) Those seeking performance rights enjoy a more streamlined process: typically, they deal with ASCAP or BMI, which may be no picnic, but at least those organizations have the power to issue blanket performing licenses, making things much simpler for the rights seeker.

ASCAP and BMI have no dominion over synch or recording rights. These issues fall under the umbrella of the RIAA, which is very much aware of music copyright violation in the event video world. While the RIAA doesn't currently issue any sort of clearing-house licenses for synch and recording rights to event videographers, a committee organized by EventDV and the 4EVER Group has begun discussions with top-level executives at the RIAA about developing a licensing system that will to allow event videographers to pay an annual fee that will cover recording and synch rights (with pre-defined limits) for all artists and recordings represented by the RIAA, similar to the one available to Australian videographers (via their own national licensing bodies) for an annual fee that currently stands at U.S.$581. There are complicated issues to resolve on both sides of the equation in the U.S.—including anti-trust law concerns—and at this writing our discussions of this type of solution are still preliminary.

READERS' POLL

Of course, one option is to avoid this entire issue by using buyout music in your production, where you pay a fee up front for access to a "copyright clear" music library (the fee essentially covers the royalties to the composers and performers). You then have the right to use the recording under one of three arrangements: a needle-drop fee, where you pay a specified fee for each use; a bulk rate that's scaled to high-volume use; or an annual blanket license that provides for unlimited use for the specified term. Creating or commissioning soundalike recordings is another, potentially thorny alternative; original artists are protected from these types of infringements as well.

While no wedding or personal event videographer in the United States, to my knowledge, has ever had to pay significant damages for the use of copyrighted music in a production, it is nonetheless possible that you may find yourself the defendant in an infringement suit brought in a U.S. district court if a copyright owner catches wind of how you used his or her composition or recording and proceeds to take umbrage and action. According to Miller, this may result in an injunction or restraining order to prevent you from continuing to use or distribute the infringing work, a court order to impound the materials in question, and a court order to destroy those materials.

Finally, the court may award compensation in one (or more) of three forms: actual damages ("monetary losses resulting from the infringement that the copyright owner can actually prove"—virtually impossible for a rights holder to prove with event video); statutory damages (a figure assigned by the court "when actual damages are small or difficult to prove"—more likely); and possibly reimbursement of the plaintiff's court costs or attorney fees. Section 504 of the Copyright Act of 1976 stipulates that in "most individual infringement cases, the court may award damages of ‘not less than $750 and not more than $30,000.'" However, if the court terms the infringement "deliberate and willful," damages may run as high as $300,000. In instances of "innocent infringement," where the court believes the infringer didn't know the law or did not understand that his or her act constituted infringement, Section 504 provides for reducing the statutory damage award to $200.

The biggest concern here, of course, is that this won't just come up routinely, proceed proportionally, and result in a slap on the wrist. The recording industry could launch a case to make an example of someone and go for broke, so to speak. And by sitting idly, taking our chances, and hoping to avoid notice, we're essentially waiting for the hammer to fall.

As you might expect, that's what we're trying to avoid.