After posting my video today for Videoblogging Week 2007, commenters pointed out that I used a commercial song that I had no rights to use. Most people would be like ‘who cares?’..but in this case, it’s important. We just had a big event this past Saturday where Jon and Colette spoke about Creative Commons. If we videobloggers want respect from commercial companies (ie dont steal our stuff!)…we must respect existing copyright law. This means don’t use commercial music without permission.
You can see Colette’s great email below. She lays out the law.
I just wanted to use a song I liked. No big surprise it was commercial since it’s the music that’s all around us. But if we are to build a new way to make media online, we got to pioneer these new independent artists that are offering Creative Commons music. Maybe eventually commercial artists will see that it’s okay to allow their musci to be used for personal creations.
So time to get off the commercial media nipple once and for all.
I should have known better. Ryanne has been making her own music with Soundtrack Pro for a year now.
I’m going to reedit the video with a CC-licensed song. Jon suggested FreeMusic. I could even use this page at SpinXpress that I’ve helped develop. If you have a suggestion…leave a comment.
From Colette:
"Yes, assuming the music you’ve selected is not cc-licensed for
sharing in the manner you’ve copied and shared it, and I gather you
didn’t ask Cat Power for express permission for this use, then your
use of the song is an infringement of her copyright (at minimum you
are violating her reproduction right, derivative work rights, and
distribution right. you may also be violating the performance right,
not to mention possible liability for inducing others to
infringe…). Now, I suppose there’s an argument that your use is a
"fair use", but in my opinion that would be a very tough argument
since it doesn’t appear that you are making a commentary about her
work, it’s not a parody, it’s not news reporting, it’s not an
educational use etc.) Essentially, you’re using the music as
background for the video, which is classically something you must
clear permissions for.Also, you CAN have the music you want in your "personal" videos and
be creative. You just have to limit your use to what is considered
"personal use" — that is, you can view your creative works in your
home, you can show them to a small group of friends/family from your
personal computer, on your personal iPod or via your TV (or apple
TV). But you CAN’T share this creative work with the world over the
internet in this manner because you’re making lots of copies and you
are encouraging others to download a copy (downloads are illegal
copies, unless you have cleared the rights). (And even if you try to
limit it so that it’s a stream, rather than a download, I think it’s
risky because we all know it’s not that hard to copy a stream. Even I
have figured out how to do that!)The Podcasting Legal Guide discusses the copyright issues in using
music at these links here and here.Fair use is discussed here:And this section of the guide discusses situations where you don’t
need to get permission for the kinds of things you’re doing (like,
when the music you use is in the public domain, or when it’s CC-
licensed) is here.My podcast also discusses using music and music in videos in episode
006 and 007.The most current episode of my podcast (episode 011) discusses fair
use (it’s going to be posted today).Hope this is helpful!
Oh, Jay, you don’t suck. But I admire you for giving the whole matter a great deal of thought and arriving at what is the fair and just conclusion.
However, I will nitpick. Because sometimes nitpicking is fun.
First of all, she’s right, of course she’s right. I know perfectly well that using copyrighted music in a videoblog post without permission is wrong. But this wording in Collette’s email eats at me: “you can view your creative works in your home, you can show them to a small group of friends/family from your personal computer…But you CAN’T share this creative work with the world over the internet in this manner because you’re making lots of copies and you are encouraging others to download a copy…”. I just can’t agree that posting a video with a snippet (or a chunk) of a song amounts to “making lots of copies” simply because it lives on the internet. It just lives there. It can’t be considered a copy if no one sees it (if a copyrighted song plays in the background of a video and no one sees it…does it exist?). And I’m going to need a definition of “small group of friends and family”. Of the billions of eyes that comb the internet, I count the small group watching my videoblog as friends and family. Who’s to say they’re not? I also think “encouraging others to download” is a bit harsh. It’s not like we’re pirates or pushers. Is someone really going to walk around their house with their laptop to play Cat Power over and over and over while watching your video just because they like it instead of buying it for a buck on iTunes?
(Possibly; it is such a damn good song.)
It’s a very sticky issue. Some think it’s black and white just because there are laws in place about it, but mostly I think the laws need to be tweaked in this new Web 2.0 world of ours (yeah, I know, good luck). Creative Commons licensed music has such fabulous potential. Someday I hope to like more than 8% of it. Someday I hope the idea of ownership in general morphs into something different (yeah, I know, good luck).
Or maybe Apple will just keep chugging out those Garageband loops for me to rearrange. Again. And Again. And again.
It’s good practice to not CC shit that has elements that you’re stealing. And down the road you won’t run into issues of having to get clearances say if someone wants to broadcast your piece. And using an original soundtrack or sound design makes you a better filmmaker in that you are not relying on all the meaning already associated with that song to carry your film along. Colette’s podcast is a great resource for videobloggers. Give it a listen damn you!
That being said sometimes you like a song and that’s that. A videoblog is a reflection of a moment in time and including a song that’s in your head for the last week is a natural thing. No one is trying to rip someone off. I guess that’s what I have a problem with. Don’t I have some ownership over this thing in my head? Some right to use it? Legally no but… ?? Come on! Where’s the common sense?
Aaron/Bekah…I agree with both of you. It seems crazy that these songs around us, the ones in our heads, can’t be used in our own works. But it’s the truth. One day it’ll change. Common sense must exist.
In the meantime, I guess its about trying to create another world where media can used shared. If enough of us do it (there’s so much talent out there)…the commercial media will join our hip party. They’ll be the dorks in the ridiculous golf shirts.
I gotta take issue with missb’s take.
“I just can’t agree that posting a video with a snippet (or a chunk) of a song amounts to “making lots of copies” simply because it lives on the internet. It just lives there. It can’t be considered a copy if no one sees it (if a copyrighted song plays in the background of a video and no one sees it…does it exist?).”
Generally when you view a video posted on the web, your computer must first download a copy of the file. Just because it got saved in a temp directory most users don’t know is there does not mean the file was not copied.
And when did you ever see music? You hear it. If you heard it, it exists.
If you get the chance, listen to Gillian Welch’s song “Everything Is Free” for a musician’s take.
Yep I put my hand up and admit it I am guilty too – and that shame has just got me signed up to CCMixter http://ccmixter.org/media/people/theadamclarke
I sure hate it when art and personal expression conflicts with the law.
you don’t get total control:
http://blogumentary.typepad.com/chuck/2006/05/copyright_radic.html
Actually, Cheryl, I do see music. I’m awfully sorry you don’t .
One of my friends recently posted about podcast-safe music – you might find his post interesting, too – http://davidsrandomstuff.blogspot.com/2007/04/music-for-podcasts.html
Hey Jay,
Magnatune.com is another option for finding quality Creative Commons music.
They consider podcasts and videoblogs as non-commercial, and they have you license your work as Creative Commons Attribution-NonCommercial-ShareAlike.
Senior Jay,
some bands have been known to use a video a fan made
contact Chan Marshal ( i have no idea how)
she may love it and use it or just let it be,
who knows?
I do know your video is art to my eyes and ears and that can not be governd
it must be shared.
Placebo is a band that asks their fans to make videos of any of their songs. This was like 3 years ago.
They’ve used an amueturs take as their video before, even placed it on their DVD Dischography. Placebo is even having a lipsynch collaborative campagin for their next song release
over at http://www.motionbox.com/. Placebo has uploaded the lyrics and provided the instrumental track as well.
Here is a link to their band.
http://www.placeboworld.co.uk/
I still use other peoples music and probably will continue to as an artistic expression
and love for what i love and live for what i love for.
But that’s just me and i am okay with that. My 7 subscribers have yet to complain:)
If Johnny Law shows up I’ll speak with an open heart and conclusions will be drawn over tea & bisquits.
If you do redit the video I’m still going to want to watch it and am interested
in the subtextual intersections & differances.
Best Regards,
Burrito Baggins
I should comment. I do have my own practice with copyrighted stuff, I try to steer clear of it, but sometimes what we do calls for certain unavoidable snippets of culture. I have a piece of paper taped to the wall in front of my work station/computer. It states this:
4 Factors 4 Fair Use:
1) the purpose and character of your use- (is it transformative?)
2) the nature of the copyrighted work
3) the amount and substantiality of the portion taken
4) the effect of the use upon the potential market
When I use something deemed “not mine”, I try to make sure all of these factors are, in my mind, fulfilled. Fair Use is a huge foggy uncharted gray area, and it should be explored, and is in my opinion one of the places where content can actually be pushed. Forget sex and violence, that shit is so passe. Transformative is the key word to me, are you creating a new context for the work? I would say and I know this is a bold statement (I would argue your case in court Jay), that your use of Cat Power’s song was transformative. Go ahead and jump on all of the problems with that statement. You probably wouldn’t win on this one though.
Wreck and Salvage is trying to push Copyright and Fair Use a bit, and our name is our defense. If you publish it, it’s fair game for fair use, to be both wrecked and salvaged. Everything we do is commentary and criticism on the media we see and use along with the world we’re reflecting. Here is a decent example. Quirk and I collaborated on this video (using Spinxpress, ha!), it’s title Thomas Jefferson Vs. Hunter S. Thompson:
http://wreckandsalvage.com/promos/jefferson_vs_thompson.mov
We had it in our mind to use Maggie’s Farm from Bob Dylan. I wanted to use it, but didn’t want to infringe, so I reversed it, and it worked beautiful, and I don’t think this use infringes at all. But by trying to satisfy my own conception of the Four Factors of Fair Use, a perfect solution presented itself. It’s ok to use copyrighted stuff, it shouldn’t be considered taboo, we just have to be more knowledgeable on how we use it. Phew, I’m done.
I have plenty more to say too.
Oh, this is Erik Nelson, please use anything I make anyway you like, because it’s all really not mine either, or maybe better put, it’s all of ours.
One of my favorited twitters from Valdez:
“Wreck & Salvage denied from yet another site! Revver doesn’t think I own the rights to Freebyrd. Freebyrd belongs to all of us!!!!!!!!”
these are all good resources. I especially like Chuck’s link on his blog where he posts about using commercial music. As far as using CC music..it’s really a problem of discovery. We all know the commercial music we like, but how do you do a text search for music? I’ll find out.
I would also point folks to the Documentary Filmmakers’ Statement on Best Practices in Fair Use (downloadable at http://www.centerforsocialmedia.org/resources/fair_use/), which I use as my guide for following (and breaking) fair use rules. I actually find this a more useful guide than the Four Factors (even for non-documentary projects).
I’m not sure that the four factors applies so well anymore, or at least many filmmakers have lost arguments based on those four factors, especially the “amount and substantiality” section. I’m by no means an expert on copyright law, but I hear repeatedly that it really doesn’t matter how little a portion of copyrighted material you use, or its nature, it’s *how* it’s used that makes the difference. And, at least in documentary, a transformative use isn’t enough to have a solid legal argument–the copyrighted material has to directly support the argument constructed in the film by the filmmaker.
That said, this is a huge gray area and I’m all for pushing the boundaries and returning the culture of ideas to the commons. Freebyrd DOES belong to all of us!
Jay, thanks for putting a spotlight on this. I’ve brought this up many times before, and even made a point of calling out some of the big names in the videoblogging community who either didn’t put any value to what I said, or just shut me out completely. Maybe you can have some impact on this issue.
Jay and I hooked up a CC soundtrack (of my music) to this:
http://blog.gonze.com/2007/04/20/crazy_arms_lucas_cc_sa/