Safe and Sound
Posted Sep 8, 2004

Event videography has a skeleton in its closet. For years, event videographers have used and abused copyrighted music, filling their musical scores with popular tunes without paying any royalties whatsoever. Some don't know they're breaking the law; some do, but choose to turn a blind eye or concoct their own unofficial method for compensating the songs' composers and performers and use the songs anyway. Others try to stay away from violating copyrights altogether, but many unwittingly still tread on the wrong side of the law.

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."

Fulfilling Musical Desires
These options are all fine and dandy, but they're not what many brides and other clients want to hear. By using any of the methods listed above "you can come up with something that's very nice," says Craig Seeman, senior producer and editor at 3rd Planet Video, "but that's harder to do with a pop tune because the client is looking for a specific tune by a specific artist." Nowhere are the shortcomings of non-copyrighted music more apparent then in the photo montages that have become a popular feature of event video DVDs. But what do you say to a client who's adamant about the inclusion of their favorite song in the record of their special event?

Seeman, who refuses to use copyrighted material, simply lays out his concerns over the legality of using protected songs to his clients. "I have had brides who have said ‘I didn't know that was illegal,'" he says. "Once the bride realizes there are legal problems, she usually agrees to use stock." While it may scare away potential clients, making your position clear up-front lets clients know that they may have to share responsibility if any litigation is brought up against the videographer for illegal use of copyrighted material. "It's like asking someone to do a hit," explains Seeman. "There's a triggerman, but the person who pays for the hit is also responsible."

If that doesn't work, try following the model illustrated in an anecdote posted on Creative Cow's Event Videographers forum by co-moderator (and EventDV columnist) Doug Graham: "When a prospective bride wants you to use her music selection, tell her, ‘You've seen samples of our work. The music is an integral part of our artistic style. If you like our style, and want to book with us, the music is a part of the package.' If she insists, say, ‘Let us edit to our music first. If you don't like it, we'll re-edit to your music.' Surprisingly, the videographer taking this approach has had zero takers on that offer." Unfortunately, this doesn't mean that videographers like Seeman haven't lost business for refusing to use copyrighted music. "I think that there is an industry problem when I'm put into the position that I must violate copyright in order to offer the same service as my competitors," he says. "It's a ‘sick' climate where some videographers feel they have to violate copyright in order to compete."

How it's Done Down Under
But it doesn't have to be this way. In fact, in Australia there's already a system in place that solves this exact problem. The Australasian Mechanical Copyright Owners Society (AMCOS), and Australian Record Industry Association (ARIA) represent music publishers and record companies, respectively. "Together we have established the AMCOS/ ARIA Domestic Use Video License to allow the reproduction of commercially released musical works and sound recordings into the soundtracks of wedding videos and videos of other events," says Mostyn Rischmueller, an AMCOS mechanical licensing assistant. "This license represents a simple, cost-effective way of securing copyright approval for music used in video productions and allows the reproduction of music that may be played at an event as well as the deliberate dubbing from commercial recordings to be used in the video/ DVD's overall enhancement."

For an annual fee of $561, the licensee can use any music represented by the AMCOS/ARIA partnership, for an unlimited number of events, just so long as he/she doesn't make more than 30 copies of any one event. There are some restrictions, namely that productions containing this music cannot be marketed (as in a corporate video or one that's made for sale to the general public) or contain promotional material, and the videos "must be made for the private domestic viewing only of those appearing in the video," according to Rischmueller.

Back in the U.S.A.
Even though this model has served the Australian market well, there hasn't been any movement in this direction (or any direction at all, for that matter) in the U.S. Music publishers and record companies still don't seem to see enough profit in licensing copyrighted works to videographers to justify the investment of time and resources necessary to set up any sort of system. Some worry that instituting a low-cost method of licensing music might undermine the six-figure licensing fees that big-budget Hollywood movies pay for the rights to music. Plus, they've got "bigger fish to fry," says McDonough in reference to the brouhaha surrounding illegal downloading. At this point, because so many videographers are already using copyrighted music at no cost without facing any consequences, there isn't much of a push on either side to get something done.

"Whether record companies want to accept it or not," says McDonough, "their business is becoming more about publishing. They're looking for more opportunities to license their copyrighted recordings." Combine this reality with the RIAA's penchant for doggedly pursuing litigation when they feel threatened, and videographers could be in for a rude awakening in the near future if something isn't done to remedy this situation.

Videographers, like Seeman, who have already read the writing on the wall, want to avoid any possible nastiness in the future. "I would like to see a solution where I can pay X dollars per use or for an annual fee. Then I, as a business, can just charge the client for it and include it as a part of my rate," he says. Here is where an organization like WEVA can play an effective lobbying role. "It would be something that would make them more attractive," says former WEVA member Seeman. "It would be smart for them to do."

In the meantime, copyright-conscious videographers like Seeman will do what they can to avoid facing the impending tempest that will inevitably engulf future use of copyrighted music in event videos. As Seeman puts it, "It's a powder keg I'm not willing to sit on."

(For a closer look at royalty-free music, continue to the next page)

Sidebar
Taking the Law into Your Own Hands

In lieu of a legal way of licensing copyrighted music, some event videographers have developed unofficial workarounds to justify and defend their use of this music. "One method that's been proposed is for the videographer to buy a commercial CD (or buy the tune from iTunes, etc.) each time it's used in a wedding video," says Panda Productions' Doug Graham. "This isn't an approved legal method of obtaining permission, but at least it provides some compensation to the artist."

You might be able to get permission to use a song for free or a nominal charge by simply getting in touch with someone at the appropriate publisher and record company, although you've got a better chance if you try and do so through a third-party company that deals specifically with these types of licenses. The problem lies in getting anyone to deem helping you worth their time. And you might accomplish nothing more than alerting them to what you plan to do (odds are they'd otherwise never know).

Even so, just giving it a try might not be a bad idea, especially if you ever end up in court in the future. "People would interpret that as them trying to do the right thing," says FutureofMusic.com's McDonough, "but it doesn't relieve them of the liability." The same can be said about purchasing a CD in lieu of obtaining licenses. "It's less of a willful infringement," explains McDonough.

One way that some videographers have tried to shift or share liability is by explicitly stating in contracts that clients assume all responsibility for the use of copyrighted material. Since there haven't been any court decisions to set a precedent for the viability of this approach, "even if they question the validity of the contract," says event videographer Craig Seeman, "at least I've clearly specified in it that the use of any materials and their copyrights are the responsibility of the client." This approach should be considered essential when working with corporate entities that may take your work and distribute it externally, but it's unlikely that it would remove any legal culpability from the videographer. At best it may allow you to share, not necessarily limit, the blame in future litigation when capturing weddings, bar mitzvahs, and the like for individuals who insist on popular songs and don't plan on taking the videos further than grandma's living room.

Companies Mentioned in this Article

3rd Planet Video, http://home.earthlink.net/~3rdplanetvideo/
Adobe Systems, Inc., www.adobe.com
Apple Computer, www.apple.com
Australasian Mechanical Copyright Owners Society, www.amcos.com.au
Creative Cow, www.creativecow.net
Future of Music Coalition, www.futureofmusic.com
Panda Productions, www.pandaprod.com
SESAC, www.sesac.com
Shockwave-Sound, www.shockwave-sound.com
SmartSound www.smartsound.com