At Issue... Page 4 of 8

My Voice, My Choice
George Thoroughgood* is my next door neighbor. He said I could use “Bad to the Bone” in my race car video that I’m showing at the community center.

Too bad. Apparently George doesn’t know copyright law. While he may have written the song, he does not hold copyright to the performance that he recorded. EMI, the record company does, via their publishing company. George receives royalties from them for any sync licenses issued via their publishing company. If George were ignorant enough to give you written permission and you acted upon it, both he and you would likely be found liable for violating the rights of EMI and any other interested parties to the song. Artists give up a certain amount of control of their music in most instances, in return for which they receive mass distribution, promotion, airplay, advance funds, and other remunerations. The record company and publisher, which are not always one and the same, receive some of the rights around the song in exchange for these services. Even if George holds 100% of the publishing on his song (which would be rare) he still more than likely has administrative agreements with someone, somewhere, who manages his copyrighted works. Often, these agreements are for around 15% of the total licensing revenue. If you copy his work and show it in a public forum, you are risking a lot. Even with his written permission. [an error occurred while processing this directive]I'm an editor hired to do a piece of work for a client. I shot the footage, I edited the footage, but the client tells me I can't use the footage in my demo reel. Does he have the right to prevent me from using the video I shot and edited? What about Voice-Overs, or music compositions?

Yes. The client can prevent you from showing footage created in a work for hire agreement. You shot it on his nickel, you edited it on his nickel, he owns the footage lock, stock, and barrel. You must specifically ask for the right to use the footage before using it in a demo reel. With that in mind, the contract must specify those 3 words, "Work For Hire." The client owns all copyrights, and may not be willing to grant shared copyright to Works For Hire. (I surely wouldn't, either) You can request a specific, demo reel license from the client, that grants you the right to XXX seconds or scenes, or other specified use for a demo reel. We've done a lot of work for HBO, Disney, etc, but our contracts with these companies specify we cannot use the works for hire in our demo reels without specific permission. No matter what the work, if you are a Work For Higher contractor, you cannot use the creative elements or finished product developed for the client if the client will not permit it. This is why you rarely see works from major motion pictures as parts of articles, tutorials, etc.

I have a recording of Bach’s* Fugue in Gminor. There is no copyright on the song, so I guess I’m OK using it, right? Does Public Domain apply here?

WRONG. The song itself may not be copyrighted but the recording of the song certainly is copyrighted by the performance group. You must seek permission from the person legally responsible for the group. Now, if you wish to record your own performance of Bach’s Fugue in Gminor, you not only may do so without concern for copyright, but you’ve just generated a copyrightable work of your own, that no one else may use without your permission. Public domain applies to the original work, yes. But a print copy, recorded copy are covered under copyright law to benefit whomever performed the recorded work or whomever transcribed the printed work.

Keep in mind, the orchestration, arrangement, and print of the work that you play/read from is probably also copyrighted, although in many instances of public domain songs, a basic version of the work has been allowed to float in print form. Further, if you were to find a simple form that was copyrighted and you made a derivative arrangement and orchestration of the original transcription, chances are that it would fall into the category of De Minimis.

My daughter’s Girl Scout troop is doing a cookie sale in the local mall. There is copyrighted music playing in the background on the mall’s Muzak system. Do I need to worry about it when I shoot a video of my daughter and post it on the web?

"Boundary, n. In political geography, an imaginary line between two nations, separating the imaginary rights of one from the imaginary rights of the other."
-- Ambrose Bierce, The Devil's Dictionary, 1911
This is a trick question. If the music is only ancillary and incidental, and not heard as part of the video, but merely ‘noise’ in the background, you might be OK. As a matter of law, this is an infringement, so consult an attorney before streaming this. If you cut the video in time to the music, and the music is heard clearly so as to constitute a perceptible, substantial part of the work, then you are more than likely in violation. You certainly couldn’t copy your work in this instance and post it to the web; not only could the performance issue bite you, so could sync, patent and other issues.

I’m doing a run and gun interview of a skateboarder and Three Doors Down* was giving a concert while I interviewed and shot footage of this kid. You can hear their music in the background while he’s speaking, and while he’s on the half-pipe. What do I need to worry about?

First, during the interview, you need to worry about nothing, as it’s ancillary/incidental music. But while he’s not speaking, while he’s performing in the half-pipe, you’d best find some royalty free, needle-drop, original, or other legal music form to replace the background audio.



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