Webcasting and Copyright laws...?

[Jim_C]

Figure with the world of internet broadcasting centering around the Tricaster, this is a good place to ask this...

How does everyone handle copyright laws, rules, fees etc when webcasting?

Examples:

1- A band wants you to webcast their concert. Small local band but they do some cover tunes. I imagine that's a no no on uStream (?) but what about if it's through the band's website?

2- Webcasting a boring business meeting through the company's website but one of the presenters uses several songs from a CD in their presentation?

3- Webcasting a Karaoke night through the DJ's website?

4- Webcasting a wedding and reception and they play CD music in the background?

Who are we forking $$ over to? What's the deal? How do you cover the slippery slope?

Thanks for any input.

[Jim_C]

Nobody?

Nothing?

Is no one else worrying about this? Is no one else broadcasting the occasional copyrighted material? Am I missing something? Do we as the broadcasters carry no responsibility for what we broadcast? Is it all up to the person hiring us to make sure they are clear?

Maybe I'm confused and missing something but I suddenly had two possible clients in a week ask about it. One was a band who play cover tunes and the other was the Karaoke guy. He puts on this huge weekly Karaoke show, a dozen moving lights, follow spots, smoke.. It's cheesy as heck but mad popular and he will pay good money to webcast it but won't do a thing until I can tell him all copyright laws are being covered.

Should I just be telling worried parties that it is up to them to make sure they are covered to air what they want and I just hit the STREAM button? If it's copyrighted and they want to air it, they have to get all permissions first?

I guess I can go with the ask for forgiveness instead of permission approach, but in this case forgiveness may mean $$ and two possible clients won't sign on until I can tell them something fairly official and legal sounding.

[SantiagoVa]

As a start, check out BMI liscensing http://www.bmi.com/licensing/website/ and their FAQ page http://www.bmi.com/newmedia/entry/533605 also the ASCAP website http://www.ascap.com/weblicense/ has info. Both of these organizations anwers their telephones and should have knowledgeable people to answer your questions.

[Brian Mirrlees]

Typing from Canada, and understanding that there are differences and at the same time similarities between the copyright laws of our two countries...

I think it is ultimately the responsibility of the producer to seek out permission or do the rights clearance for any material that is used in their production.

Are you the producer? Or is your client the producer? If you are only providing the technical facility and the expertise to operate same, then I don't think that it is your responsibility... what are the terms described in your service contract that you sign with the client?

Here north of the 49th, there is a music industry association called SOCAN (the Society of Composers, Authors and Music Publishers of Canada) which is the copyright collective for musicians and the various uses of their works whether live, broadcast, and covers other areas of use such as in public places like shopping malls or in public arenas etc.

As a broadcaster, you pay SOCAN a member or account fee, and then log and submit your usage of music identifying work, performer(s) and the publisher... submit this to SOCAN with the prescribed usage fee which is a yearly percentage of a larger gross amount, and they take care of reimbursing the performers, publishers, composer, authors etc. "on your behalf".

For larger bodies of work, you would still seek out permissions and rights directly (like if you were producing a series, or a long form documentary etc.).

The station I work at did a nightly live sports highlight show for years with a very large amount of current popular music being used as background and incidentals during highlight packs... Production never cleared each piece of music for use prior to air... they didn't have time... but they used SOCAN and the PA would log each piece of music used during the show, and the duration of use... this was always done and submitted.

We also have a needle drop policy (although that might have changed and may no longer be valid with recent changes to areas of copyright) that would allow use of copyrighted material up to and including 29 seconds of duration... any thing over that, and you would be in violation of the copyright.

Finally, I'm not a lawyer, but it would be advisable to be very clear and upfront with the copyright holders of the works you wish or intend to use, and how you intend to use them...

For example, do you intend to use the work in a live open broadcast? or is it going to be prerecorded and released for distribution later. Are you going to sell DVDs, will this be for domestic use only, or will you release in a number of foreign languages around the world?, will the work be available on-line?

If you decide to re-version or release your original production a couple of years later, you will probably have to re clear or renegotiate the rights for previously cleared works because the nature or terms in which the original copyrighted use was granted has effectively been changed...


my 2 cents (and with the currencies being at or near par, it is still 2 cents)

copyrighted 2010 by me.

[Jim_C]

Typing from Canada, <snip>

Good info Brian, thanks.

I get the feeling not everyone is covering the bases like you are.

Thus the lack of discussion.

[Tim H.]

It is typically not the best idea to take legal advice from a web forum! That being said, I believe that Brian has you on the right track.

The bottom line is that YOU and your company will be sued if there are legal complications (if it makes you feel any better, your client will be sued, too). :-)

All of the paperwork between you and your client will never clear you of anything. If I were in your situation, I would contact ASCAP and BMI for guidance first (and pay them whatever is correct). Then, (as a very flimsy backup) I would have your client sign an indemnification clause. Knowing, of course, that indemnification is only as good as your client's pockets are deep.

-Tim H. (I'm not a lawyer, but I give marginal legal advice on web forums)

[jcupp]

I've researched these questions and come to the conclusion that no one knows. Maybe if you spend a couple of thousand dollars on a specialist lawyer you can get an opinion.

ASCAP and BMI never got back to me and nothing on their respective web sites covers streaming music synchronized with video. Internet radio is cut and dried but internet video is not addressed.

I'm guessing (IANAL) that "incidental' music is fine (music being played at the reception while you shoot). But in cases where the music is integral to the video (bands playing covers etc) you'd be safer not doing it.

If you are a risk taker (you could be a test case!) License as if you were a internet radio station and throw yourself on the mercy of the court if you ever get sued.

[Jim_C]

It is typically not the best idea to take legal advice from a web forum!

I am simply starting a discussion and asking for experiences from other webcasters.

If I were in your situation, I would contact ASCAP and BMI for guidance first (and pay them whatever is correct).

ASCAP and BMI are practically useless and I would rather not blindly throw whatever money at the problem that the guy on the phone deems fit unless I am sure it is the proper decision and advice. The experience I have with them and their suggestions in the past is not good at all.

I've researched these questions and come to the conclusion that no one knows.

Same here. Then I thought I would ask here.

ASCAP and BMI never got back to me and nothing on their respective web sites covers streaming music synchronized with video.

Yea pretty much same here. Thanks for the info and the reassurance that I am not just missing something easy to understand and investigate.

[Dexter2999]

You could avoid the lawsuit, and use royalty free audio as a second track to dub over.

I'm no lawyer either, but I know broadcast sports got away without paying royalties for music at stadiums saying it was "news". I don't think that holds up anymore now that they have started to copyright statistics from the games. (As far as I know you can't copyright news.)
I think part of the gray area will come from whether you pumping the music in question directly from the source through your system to the stream, or if it is the ambient room audio. If you stream the song directly from the source of course you are in violation. But if you are streaming a reception, the music is not the focus of the piece.

The speaker using audio clips from popular songs is fine if it falls under an educational lecture. (Education has some leeway in copyright areas)However for corporate use it is illegal to stream that.

Again, I'm no lawyer, but this kind of how we have handled stuff like this.

[csandy]

People do know, but they'll charge you a whole bunch of money to figure it out. I recently used an ASCAP license for an event, and it added a good degree of security. Beforehand, I knew exactly what I was going to play and whether or not is it was in the ASCAP library.

Here is DC, there is a non-profit called the Washington Area Lawyers for the Arts (WALA). They use firm attorneys on a pro-bono basis to answer copyright problems and the like. They are really geared to artists - but there is a logical extension to producers and those using artist's works as well.

Hopefully Paul Lara reads this thread. Some time ago on the VTNT listserv, he mentioned an attorney he knew was conducting legal seminars on copyright issues. I don't remember the details but perhaps he can refresh my memory here.

The fee I paid to ASCAP was $50 to use their entire library for a day to an audience of 6000 or less I believe. That seems reasonable to me.

What was difficult though was all the administrative hoops you have to jump through in order to secure a license. Talk to this person, e-mail that person, fax this, fill out that. It was onerous. Seems like they are stuck in the pre-digital era.

In any event, it's complicated, but doable.

You really don't want to be left with the only options being:

1) try to smuggle your work under some "fair use" clause (EXTREMELY RISKY)
2) only play crummy royalty free audio (amateurish)
3) play nothing at all (boring)
4) play whatever you like and hope you don't get sued (good luck with that).

You can consult with the Harry Fox agency in New York, try the artist’s associations local to you, or reach out to another one for help like WALA.

They might have you by the short and curlies, (ASCAP, BMI, etc) but the alternative is to deal with every label, artist, and composer individually (good luck with that). So not dealing with them is really not a practical option.

Also, for those in the US, Canada or any other Berne Convention country, I'd be very wary of copyright folklore or "fair use" myths that say you can only use copyrighted material just fine if you are a school or other non-profit enterprise or you just use a 6 second sample while standing on one foot or such nonsense.

When in doubt, check with an attorney.

The other thing you should always do is always put some sort of "hold harmless" clause in your contracts so that you don't get sued along with your client.

On top of that, there is small business insurance that will cover you for inadvertent copyright infringement you might want to partake of as well.

A lot of it also comes down to enforcement as well (I bet you think that DVD you made for your client last week was perfectly legal as well, don't you? Did you buy an MPEG-LA license? Does anyone even know what that is?)

Also, there's a lot of Truism is what JCupp said. "No One Really Knows." That is true for any area of law where the technology quickly outpaces the legislation. If you're on this site reading this, you're on the cutting edge, so many areas will be grey, and many areas may be open to interpretation or subject to conflicts in the law.

What you can best do is protect yourself as noted above and make sure you don't violate the laws that are unambiguous or clearly decided.

[Paul Lara]

I looked, and it was an invite to a copyright webinar January this year, but the invite was mailed to me as an image, which has since expired.

[GeekNews]

1. from a podcasting perspective as the non rules are close- you need to have the typical BMI/ascap license. Good person to ask would be Brian at coverville.com he has went through the process

2. Did the company pay the riaa? If no you could get left holding the bag, Riaa controlled music played is a challenge we all know what the fines start at.

3. Same rules apply.

4. Same rules apply. Pay the man

The key is to get a license and pay the man. Otherwise penalties start at a couple thousand per violation.

Figure with the world of internet broadcasting centering around the Tricaster, this is a good place to ask this...

How does everyone handle copyright laws, rules, fees etc when webcasting?

Examples:

1- A band wants you to webcast their concert. Small local band but they do some cover tunes. I imagine that's a no no on uStream (?) but what about if it's through the band's website?

2- Webcasting a boring business meeting through the company's website but one of the presenters uses several songs from a CD in their presentation?

3- Webcasting a Karaoke night through the DJ's website?

4- Webcasting a wedding and reception and they play CD music in the background?

Who are we forking $$ over to? What's the deal? How do you cover the slippery slope?

Thanks for any input.

[TakeOneDigital]

Sorry to be late to this discussion, but I think it's HIGHLY relevant. I can't tell you how many live webcasts that I've looked in on and heard them streaming pop music just as on-hold tunes! Completely apart from the discussion of the live event itself, how OPEN to a lawsuit is any webcaster who connects their iPod as an input and blindly presses Play?

Since most of my events are just talking heads, I don't fret about the incidental song that might be played during an event... but I DO make sure that my "on-hold" tracks are 100% buy-out music that I own. And to those who think it sounds crappy, I tell them that great tracks actually sound better than using popular music because 1) they have no vocals, 2) typically are cross-genre pieces that appeal to larger audiences, and 3) give your production the polish of real "on-hold" music rather than "some yahoo that just hooked up his iTunes playlist.

What I did for our two Tricasters is this. I made a sequence in Final Cut from the long versions of the most appropriate songs in our buy-out library. This came to about 2 hours of music. I then output that entire playlist as a single audio file with crossfades so that I have an MP3 audio file that's 2 hours long. Then we loaded that onto our Tricasters as "on-hold music" to play from the DDR any time we need it. Works great! And we can put up a logo or other DDR with our "can music" set to loop without worry.

But your issues with the Karaoke and wedding clients are interesting ones. For the wedding, I think that any lawyer would argue "private use". The webcast shouldn't be "open to the public" for someone's wedding anyway. The B&G would have the address with your admonishment that it was for guests only. Thus, while you are webcasting it, it's actually not a BROADcast but a totally NARROWcast with very few viewers. Plus, if you are webcasting something in Flash, the casual user cannot record it. That solves another of the copyright arguments.

[pro---studio]

Hi everyone,

joining late but hopefully not too late. Very interesting discussion.

I don't know about the laws in US or Canada but here in Germany we have a second problem with regular "chart" music:

It is not enough to pay the performing rights society. You even have to get a permission from the holder of rights to use their song in your production. I think that applies to other countrys as well.

All the big TV-Stations have contracts with the performing rights society that allows them to use their library in editorial productions. For every other use (f.e. commercials) they have to clear the rights seperately with the holder of the rights.

I think it's not enough to pay the performing rights society allthough they will not tell you this because they want to earn money. They don't give legal advice. They just collect the performing right fees.

We have a standard contract that every client has to sign where the client confirms that he is in hold of all rights of this production and if not, he is the only one who can be charged.

In Germany there is no difference between "receptional" audio and direct audio. Even if you can hear only a fraction of a song while broadcasting a sports event, you have to own the right to use it in your broadcast. Please check this in your country as well. I don't think that it makes a difference.

A chummy production company produced a documentary for a major TV-Station here in Germany about women with no taste for fashion that get new dresses and new makeup. They rented a loft and paid about 200.000€ to renovate it. After the production was done they got sued by the photographer of a picture (it was not even the original but an art print of it) that they bought at a furniture store and that was hanging above the couch because the broadcast rights of the picture weren't cleared. They had to pay a big amount of money because of that.

TaKe care

Pro

[csandy]

I think that any lawyer would argue "private use". The webcast shouldn't be "open to the public" for someone's wedding anyway. The B&G would have the address with your admonishment that it was for guests only. Thus, while you are webcasting it, it's actually not a BROADcast but a totally NARROWcast with very few viewers. Plus, if you are webcasting something in Flash, the casual user cannot record it. That solves another of the copyright arguments.

THE FOLLOWING IS NOT LEGAL ADVICE OF ANY KIND.

Under U.S. law, if your attorney argued "private use" for a wedding, you'd probably lose.

Unless, of course, you were marrying yourself, or you were just getting married with your household present.

The rights given to content creators and owners are very powerful and not easily abridged. The Digital Millennium Copyright Act (DMCA) made those rights even more powerful.

Consult with a good attorney versed in copyright law. THE FAIR USE EXCEPTION (which the mythical private use would fall under) IS A PIT OF SNAKES WAITING TO BITE YOU.

Beware.

THE PRECEDING IS NOT LEGAL ADVICE OF ANY KIND.