by Tamera H. Bennett
Planning on a great time today at the Music Panel in conjunction with the Fort Worth Fearless Film Festival. I may add more links to the post after the presentation depending on any additional topics that are discussed.
Music Clearance:
- This worksheet/form will help the film/tv producer work through how the song and sound recordings are going to be used in the production and the basic information that should be included in the license request.
- Where should you search to find out the publisher/copyright owner of a song: BMI, ASCAP, SESAC, HFA Songfile, Copyright Office
- Don’t forget, if you use an existing recording you have to have permission from the owner of the sound recording. Start with the CD in your hand and trace ownership from there. You may also use a resource such as AllMusic, with the understanding that is not always correct.
Fair Use:
Remember, Fair Use is a defense, not a right under the law. This blog post regarding the use of “If I Wish Upon A Star” in the Family Guy tv show provides information on parody and Fair Use.
Public Domain:
In the United States the copyright term is generally life of the author plus 70 years for works created, registered or published on or after January 1, 1978. If the work was created and published or registered prior to January 1, 1978 and any necessary renewals were filed, the copyright term is for a total of 95 years from the year in which copyright was secured for the work.
The safest route is to make the assumption that no song you want to use is in the public domain, then work backwards with your dates. Click this link for a flow chart for calculating if a work is in the public domain.
Likeness/Crowd Releases:
You might also be interested in an Overview of Copyright Law from Registration to Termination.
3 responses so far ↓
marcorandazza // April 18, 2009 at 11:42 am |
I know that it might be splitting hairs, but some say that Fair Use should not be considered to be an affirmative defense at all — but rather that it simply is “not infringement.”
That seems to comport with 17 USC Sect. 107.
A former student of mine has a law review article coming out in the Florida Coastal Law Review in a few weeks that discusses this. I’d be interested in your take.
Shannon Jamieson // April 21, 2009 at 10:44 am |
When you think about it, don’t ALL defenses mean “not [insert crime/tort here]“? If you kill in self-defense, you still killed someone.. you just didn’t commit murder. (Poor analogy, I know… but hopefully it still gets the point across). So when a use falls under “fair use,” you still did use someone’s work without permission – but you didn’t meet the threshold for infringement. If it’s “not infringement,” you don’t need to wait until you’re sued to assert that. In contrast, fair use only come into play if you’re sued for infringement. I would be interested to read your student’s take on this; I find the concept of fair use to be one of the most interesting aspects of copyright.
ipandentertainmentlaw // April 21, 2009 at 4:07 pm |
Great comments from Mark and Shannon regarding “fair use.” My school of thought would lean toward Shannon’s comments. Fair Use is an affirmative defense. If it isn’t, a defense, then do we suddenly have lots of actions for declaratory judgment of non-infringement and the burden of proof is shifting???
Welcome any other thoughts or comments.
Gordon Firemark and I discuss fair use in a couple of different fact patterns in the Entertainment Law Update Podcast Episode 1. Check that out at http://www.entertainmentlawupdate.com