Copyright dilemma?

[graemeh]

I've just had a young Uni student come in to Master a rap album he's put together at home using all sorts of samples ripped off from TV Radio and CDs. He's added his own beats and bass and piano etc.
Some of the tracks rely heavily on these very recognisable samples, and he's obviously sweated blood for over 3 years honing his masterwork.
He's got photos and artwork and liner notes etc etc.
So I very carefully asked him what he was going to do with the finished Master. He said he was only going to make a couple of hundred copies(!) and also give a few away.
I asked if he had permission to use all these pieces, and if not had he considered that he might be infringing Copyright Law - did he realize it was illegal?
Yes he "sort of knew" but WHO WOULD EVER FIND OUT?
So I told him as kindly as I could that sorry but I couldn't complete his job because as a person working in the Music Industry I could not condone Copyright Infringement in any shape or form. On my high horse in a subtle way.
And he said he understood, from my point of view...
Now here's the rub - if he hadn't been truthful, if he'd told me he was only "doing it for the girlfiend" I would have just done the job and not thought any more about it.
What do you folks do in this sort of situation?
Do I just shut my mouth when something has a tiny whiff about it (I've got a family to feed!)?
I just re-read the Copyright section on the Arts/Law website and I know it's not legal...
http://www.artslaw.com.au/
BUT WHO WOULD EVER FIND OUT?

[ZiggY!!]

I for one find mashups and the sort to be legitimate creative works. Some are very very well done, so much so that recognisable parts have been dragged so far out of their original context that its impressive. As for the situation, I say it depends if the work appears to be more of a creative attempt to express an idea rather than someone just trying to bask in the glory of anothers own work. How arty-farty did that sound!

I have no problem letting someone have their own say, musically or otherwise... as long as they know they do it at their own risk.

[wez]

if you do that sort of work regularly you need to consider having your clients sign something that says they are the copyright owner or have permission from the copyright owner, and that they will indemnify you from any prosecution arising from the use of... etc etc. i've never had any complaints, and it takes 30 seconds to read and is in plain english. and it's not just samples, it's cover versions that you also need to worry about. chances are you've mastered cover versions in the past without knowing they weren't written by the artist. or the artist only wrote 50%, etc.

now why should the humble mastering guy - or anyone really in the technical, as opposed to 'production' chain - worry about this, since they have nothing to do with the content of the record. but it has happened in the US and in these letigious times we live in, it's worth covering your back as best you can.

and congrats on your stance, good for you.

[graemeh]

Thanks wez, why didn't I think of that?

That'll make us all happy and we all get to carry on as before...

I'll get my lawyers pen out.

[Kris]

Covers are completely legal as long as you report them to APRA. Once a song has been published anyone can record their own version without the copyright holder's consent. Royalties are to be payed in advance on each pressing and APRA distributes the loot. Printing the lyrics is different though, you need permission.

Samples need clearance. Period. In the USA there is the Harry Fox Agency that takes care of that sort of thing.

[mfdu]

yeah wez - put the ball back in the clients court. if they sign a doc stating that they own or have permission to use, then you've got an added level of protection.

a client having their creative expression is all well and good, but you don't want to ignore the legal facts.

c
mfdu

[astrovic]

I agree with what Wez proposes and have drafted that in agreements myself.

But I just want to highlight that whilst this approach is the best protection, it's not bullet proof.

It is at least arguable that where copyright is breached by a recording anyone involved in the recording process is guilty of breaching copyright. The law doesn't care whether you knew you were breaching it or not, nor whether you're the artist, the producer, the tracking engineer, the mix engineer or the mastering engineer. At best, the Courts will come down hardest on those that have the most involvement and the most to gain (i.e the artist, producer etc), but that doesn't absolve anyone from liability.

Second, if someone (or more relevantly, their lawyers) thinks their copyright has been breached, and want compensation, they won't come after those that are the most at fault, they'll come after those with the deepest pockets. There's always a good chance that that person won't be the artist. This creates an exposure to risk.

How to reduce that risk? As Wez said, include a clause in your contract that states that the hirer represents and warrants to you that either it owns all copyright in the works, or has obtained a proper and valid licence to use the copyrighted works from the rightful owner. This gives a certain level of protection from suit, as you might be able to convince a court to accept that you're not responsible for any blame (but it doens't necessarily get you all the way home). Second the contract should include an indemnity from the hirer to you by which the hirer indemnifies for all loss, damage, costs (including defence costs) and any other exposure you can think of that arises by reason of any breach of copyright. This indemnity means that if you are sued, you can sue the hirer under the indemnity. If you are ordered to pay compensation, you can seek compensation in turn from the hirer. But if the hirer has no money, you're left high and dry and you're indemnity is worthless.

But what if, like in this situation, you know that the works include copyrighted material, and you just know that permission hasn't been granted? Especially if the hirer admits this to you? Well, your risk is higher as your knowledge of breach is known, and you've gone ahead in full knowledge of the breach. That won't be pretty if it ends up in Court.

If I was a judge, I'd have a lot of trouble pinging a masterer for copyright infringement. It would go against the grain. But, I've seen low-level employees go to jail for doing what they were told to do by their bosses, who walked away scott free, so anything in this world is possible.

As another thought - can you get insurance against this sort of risk? Probably not...

[Kris]

I think the only insurance you can have is your conscience. Sounds like you're safe.

[graemeh]

Thanks to all of you for your input - much appreciated, and particularly to astrovic (there was a comic around when I was a kid, about astroboy - do you have a lightning bolt on your shirt?) who I know is a lawyer.

Using bits of your post, astrovic, without permission ;) I knocked up a bit of an arse-saving legal document in case this sort of thing happens again and I'm a bit unsure of the legalities.

Would you mind if I ran it past you here?

[graemeh]

Sorry astrovic - just realised that request was out of order!

Please disregard - but thanks for your suggestions.

Doh![/i]

[astrovic]

Why would it be out of order? I get a lot out of this forum and like to contribute as well, and I'm certainly stronger on the legal stuff than the mxing stuff. I was actually thinking of drafting something up myself and posting it, but these things never work as a "one clause fits all" - you need to make sure it fits in with the rest of the document.

More than happy for you to pm it to me if you want my 2c.

[wez]

i think it comes down to how legalistic you're prepared to get v. the chances of it actually happening. the point is that you've made an effort.

this is what i get my clients to sign. as i said no one has ever baulked at it.



"Declaration of Authority, Responsibility & Indemnity

I ............................................. (full name) hereby declare that I am authorised to act on the artist

[heathen]

For an unknown artist to use heavy sampling in thier arrangements, paying for and/or gaining permission to use every sample before recording can be extremely tedious and prohibitivly expensive if there is no money coming in, these days I think it is ok to sample as long as you seriously intend to and DO gain permission before handing out or selling any copies of the finished work.

Also record labels will do the lisenceing work for an artist if they become signed, so handing out demos to labels which handle lisence agreements is probably ok as that will show intention to gain permission.

Having a sampled song mastered is actually quite important in my mind as you want the owner of the original work to like the track and hear its full potential so they know where it is at and let them know you are serious about the track. They may still be really pissed off and never give permission, but they cant really start legal action if you comply with thier wishes and destroy all copies of recorded work.

So yeah it might be handy to have an artist sign a waiver stating the intention of the artist to gain permission if you feel endangered, just in case, but how is a mastering or mixing engineer supposed to know every song ever produced, it's impossible. So all responsibility does fall onto the user of the sample to gain permission from the owner.

Making a deal with the owner of the original work can really only be done once the concept of a new song (based on a sample from a copyrighted work) is completed otherwise its just an idea.

Thats my twisted view on it.

[astrovic]

[quote="wez"]"Declaration of Authority, Responsibility & Indemnity

I ............................................. (full name) hereby declare that I am authorised to act on the artist

[wez]

i used to have a rule - never post while drinking. but it seems to be the only time when my opinionated side comes out these days. most of the time i don't give a f@#$.

as you were.

[rick]

if i think somebody is breaking copyright, as in the above case or more often then not when they want to use a sample from somebody elses cd in between tracks ( you would be surprised how often this comes up ) ,
we have a simple policy
copyright breach is a deal breaker at turtlerock.

so we will not actually finish the job , or stop the job and lecture the client untill they see it our way.

nobody has ever actually had to walk out with out any masters but i have not allowed dozens of cases of "stealing"
to be processed in our studio over the years.

i understand legal documents cover people , but i dont sign anything i dont understand and anybody who does not understand copyright by the time it gets to mastering well i figurethey need a
a lesson in
"please pay us, so we can pay them, so they can pay you "
err thats the copyright concept for dummies

wez do all you clients sign that thing no questions asked..? just one guy in the room or everybody ..?
i am surprised you feel exposed enough to warrant it ?
all i get anybody to sign is the cheque !

[heathen]

[quote="rick"]
we have a simple policy
copyright breach is a deal breaker at turtlerock.

so we will not actually finish the job , or stop the job and lecture the client untill they see it our way.

nobody has ever actually had to walk out with out any masters but i have not allowed dozens of cases of "stealing"
to be processed in our studio over the years.
[/quote]


Hey Rick, if the intention is 100% there to get permission, even before permission is granted would you still complete the job? Or would you be asking for documentation? If the user agrees to destroy the master should permission (after mastering) NOT be granted, would you still complete the job kowing this if you knew the artist was honest? Or would this warrant a refusal to work on the material.

What is your opinion on this scenario?

This really is an industry based on trust between parties at some point of any job.

[wez]

wez do all you clients sign that thing no questions asked..? just one guy in the room or everybody ..?
i am surprised you feel exposed enough to warrant it ?

no-ones ever batted an eyelid. you'll notice that it also covers areas other than copyright, so it's just part of the paperwork that keeps clients busy while i set up the session. is but the work of a moment.

i don't lie awake worrying about it but admittedly i did introduce it after a) being sued by my next door neighbour for slipping on the wet footpath in front of my house. i kid you not. and b) after talking to americans.

the complete wording of the form states that the person signing it is the authorised decision maker. and after watching a 7-piece band have committee meetings over the length of the gaps between each track, i try to enforce a two-person limit for sessions. it's flexible and one day when i get my own place it might change, but for now it saves a hell of a lot of time.

like i've said it's as legalistic as i can be bothered going. you think it's overkill, and i hope it is too. put it this way, i wouldn't cancel the session if i ran out of forms and the printer was broken. but then that would probably be the day my next door neighbour and her american relatives came in to master their new EP.

;-)

[JulienG]

... being sued by my next door neighbour for slipping on the wet footpath in front of my house. i kid you not.

Please tell me the Judge laughed it off.

[wez]

neighbour now drives a nice new car.

[tonymite]

[quote="wez"]neighbour now drives a nice new car.[/quote]

:O

[smash]

I work in video production, and honestly, the whole copyright issue is still really tough to understand, and is still misunderstood by many many people.

The amount of people I meet who still believe the you are only infringing copyright if you "copy more than 10%" astounds me.

I know someone who has licensed (not purchased) stock images from a site on the net, and has simply applied some Photoshop filters, and is selling them as original works.
The original license wasn't even for distribution, it was previewing. He thinks he is fine.

The amount of companies who ignore copyright when their videos are for web release only, is frightening.

On the flip side, I have had times when I have worked on a corporate video for release on the web, and the client has wanted to include either music or vision that we did not hold the copyright for. After the client reluctantly agrees to pay any licensing fee (Client: but it's only for the Internet?) it is essentially impossible to find out who to pay. And this is after numerous calls to various authorities, no one actually seems to have a clear policy or understanding of copyright as it pertains to the web.

There really needs to be a one stop shop to pay for licensing, it's tough enough explaining to people why they need to pay fees to APRA/AMCOS as well as the PPCA. Plus, if you work in video, there are all sorts of other licensing fees too.

I honestly think it's beyond most peoples understaning, so they ignore it, and the people who try and "do he right thing" are seen as overly expensive and complicated at best, and ripping off your clients at worst.

[musikwerks]

I know this is slightly different to the original post but thought it worth noting anyway...

We have a reality TV series that is being sold to the USA at the moment. We use library production music from a couple of companies. Two of the companies we have purchased a worldwide blanket license to use whatever we like, wherever we like, but the 3rd company we don't have that arrangement with, we just payed for AUS/NZ broadcast rights. Unfortunately, no one thought we would sell the show overseas so on Series two we had a problem. We had paid for Aus/NZ rights through APRA which was a very reasonable $600 or so dollars per one hour show. But to expand that to the world would cost $4k per episode. Still, not a bad price for worldwide rights to over 50 tracks per show. But times that by 8 episodes and it becomes a possible deal breaker.

Anyway, as it turns out, APRA did us a deal and we got USA rights for a good price. Their reasoning being that the library will still make money from actual broadcast royalties when the show is played, payable by the network in the US and, what I thought was pretty cool on APRA's behalf, was that they said they would rather we kept Australian made music in the show. (The other two libraries are UK based). As it was, we were looking at taking those tracks out. So everybody won at the end of the day and the sale was able to go ahead.

What I am seeing more and more is that yes, you need to license any music you use but the rights holders are very open to doing deals. They know that each time their work gets aired, that's a payment to them... so they're willing to forgo or reduce the initial buy-in price in favour of residuals that could well earn them money decades down the line via syndication. It's actually a very easy process to go through. Our contact at APRA is a really nice guy and is great to work with. Plus he really likes our show so that helps too I'm sure!

When it comes to corporate video production, no pay, no play. The client has to pay or they don't get the music. It's included in all budget correspondence and is not negotiable. Simple as that.

Smash, PPCA is for retailers, like Gyms, Cafe's etc, places that play background music. APRA are the people you should be dealing with.

For anyone needing licensing advice, APRA have comprehensive info here:

http://www.apra-amcos.com.au/musicconsu ... needs.aspx