Copyright Question

Gary Lemson · March 1, 2009

I am producing a documentary where there could be copyright protected music playing as part of the ambient background during interviews. In other words, the music will not be an individual synchronized sound track. Will this constitute copyright infringement?

March 1, 2009

I am producing a documentary where there could be copyright protected music playing as part of the ambient background during interviews. In other words, the music will not be an individual synchronized sound track. Will this constitute copyright infringement?

Yes. You will need to get it cleared.

R,

Gene Fojtik · March 2, 2009

You should read this document.

http://www.centerforsocialmedia.org/files/...r_use_final.pdf

According to point three of the statement, the incidental recording of music in a documentary falls under fair use if it is part of the reality that is being captured and not a substitute for a synchronized track.

March 2, 2009

You should read this document.
http://www.centerforsocialmedia.org/files/...r_use_final.pdf

According to point three of the statement, the incidental recording of music in a documentary falls under fair use if it is part of the reality that is being captured and not a substitute for a synchronized track.

I wouldn't be so sure about that...good luck getting it past an E&O company, and without an E&O policy in place the final product is useless. Regardless of what the law says insurance companies make up their own rules.

The news media of course can easily get away with this, but a documentary being made for commercial purposes is a different story.

If you interview some one at the state fair while music plays in the BG, you'll need clearance on that music. Now it's up to the rights holder to come after you and they may not even care, but it's a possibility.

R,

Gene Fojtik · March 2, 2009

I don't know what an insurance company will or will not approve, but if the copyright holder wants to sue you over incidental recording of music playing in the background, I would use it as a good PR opportunity for your film and a way of publicly shaming the copyright holder. I bet the media would snap that story up. I would think that it would cost the copyright holder a lot more time and money to sue you with a doubtful chance of winning than they would actual win if they won the case.

As long as you are not cutting to the music, and it is clearly something part of the environment that cannot be avoided I would not worry about it too much. Of course, if you can cut the music it will be better for your audio track and you will avoid any potential conflicts.

In a worse case scenario, they sue you and you have to remove the music. You then cut the original soundtrack out and do a voice over of the dialogue with a screen title naming the copyright holder responsible for the ridiculousness of the situation.

At some point filmmakers will have to decide to not live in fear about issues like this. If we cower, it will only encourage the nitwits who would try to exploit us.

Read that statement and contact the organizations behind it to get some reassurance.

In the end, even if you have all your ducks in a row, someone can still sue you. That will still cost you time and money, even if you win. But if you allow your self to worry too much about lawsuits, fear will keep you from ever making a film.

March 2, 2009

In the end, even if you have all your ducks in a row, someone can still sue you. That will still cost you time and money, even if you win. But if you allow your self to worry too much about lawsuits, fear will keep you from ever making a film.

And this is why E&O ins exists. But if you can't get the policy, then what? Broadcasters for starters will not buy programming that does not have an E&O policy in place. In the USA any way.

In Europe the broadcasters don't require E&O because they are a far less litigious society.

R,

Gary Lemson · March 5, 2009

Sorry, I should clarify...this is not for commercial purposes. However, I believe the law still constrains use significantly.

The interviews take place in a radio station studio. There will be studio monitors live in the background. I could have them turned off, but then I lose that dynamic.

Gene Fojtik · March 5, 2009

I would not worry about it then. If there is no money involved they wouldn't waste there time on you. Do you know how many student projects illegally use copyrighted music as their main soundtrack? Thousands, and they are never prosecuted. Now of course they don't get commercial distribution but you are not looking for it either and you are NOT using copyrighted material as a score.

I do think however for audio purposes that you should kill the monitors during the interview and if you want to add authenticity to the setting you should separately shoot footage of the studio in action so that you can cut it in with your interviews, either at the beginning or end or as a transition from one interview to another.

Adrian Sierkowski · March 5, 2009

You could also just kill the studio monitors (good idea to get good audio) and mix in a track in the background from one of the myriad sound libraries online (such as even Soundtrack Pro which comes with Final Cut)-- quietly in the background just for some ambiance.

March 6, 2009

I would not worry about it then. If there is no money involved they wouldn't waste there time on you.

Remind me again how many Americans where prosecuted by the record labels for illegally downloading music? Thousands had to pay a three thousand dollar fine or face a trial. Parents of teenagers where forced to pay the fine.

Yes there is a high degree of probability that nothing will happen to Gary, as you point out lots of people use copyrighted music in a manner that is technically illegal, and nothing happens to them.

But on it's face....having the music in the BG, is a copyright violation and clearance would be needed.

R,