Can I Post Music on Vine or Instagram Videos?

Dear Rich: I am the administrator for my church's social media accounts. I would like to post short six-second Vine and fifteen-second Instagram videos of our musicians performing hymns and other copyrighted music. Should I look into buying a copyright license for these videos, or would it be considered fair use because of the short length of the videos? As for buying a license, forget about it (and see our previous entry to understand the futility of that effort). The music companies have made the task of obtaining a sync license impossible for mere mortals.
The good news: As far as we can tell neither Vine or Instagram has a copyright filter similar to the one at YouTube (though that may evolve one of these days). So, it doesn't appear that Vine or Instagram will flag your use of unlicensed material. Chances are also good that a six to fifteen second music clip will be excused as a fair use particularly if you're not infringing the sound recording copyright --  that is, you're not using a pre-recorded song as a soundtrack for your video. Finally, music publishers and/or record companies may not want to pursue this rabbit hole of potential infringement. So, although it may possibly be an infringement, we don't think you'll run into legal problems in the near future.

Can We Make Cover Song Video?

Dear Rich: I'm in a band, that's just starting. We write songs, which we intend to release soon. We were wondering, though, if it would be alright to make some videos of us singing other artist's songs first, and post them online (not to be sold, though), using them as a sort of advertisement. I've tried researching that, and it seems that technically it's illegal, but we don't understand why so many people have done that very thing, and later been rewarded with recording contracts, (i.e. Justin Bieber, Cody Simpson, Christina Grimmie and Greyson Chance). If it's illegal, why does it seem to work for so many people?  First, we're happy you formed a band. It's a great way to make friends (and enemies) and it teaches young people a lot about important stuff like personal hygiene. We're not familiar with most of the artists you mentioned but that's probably why they're successful. In any case, you're correct that it is a violation of copyright law to make a cover-song video without permission. People do it and "get away with it" because websites such as YouTube have worked out arrangements with many song owners. Instead of requiring that the video be taken down, the song owners allow the video to stay up as long as advertisements are displayed and/or run in conjunction with the video. The song owner keeps the money from the ad revenue. In addition, you may find it difficult to embed your cover video outside of YouTube, or as you'll see if you click our cover song above, you'll get a message forcing you to watch the video on YouTube thereby enabling the ads (we love what happens at :54 seconds). We wrote about this phenomenon (sometimes triggered by a system called Content ID) in a previous blog entry. You can also learn more about cover songs and videos by reading this article at CDBaby.

Can We Use Video of Deceased Musician?

Dear Rich: A musician friend recently gave a concert. (Let's call him the Musician.) He was a master of traditional folk music, so the tunes were either his distinctive arrangements of public domain music, or his original improvisations. The Musician was dying, this was his farewell concert, and he passed away about a month later. A friend of his (let's call her Ms. Go-Between) asked her friend to videotape the concert. No actual agreements were made with this fellow, and certainly nothing written. We assumed the Videographer was volunteering his services, as we all are. A group of us, friends of the Musician (including Ms. Go-Between), are actively fundraising to produce the Musician's legacy project: to bring out his unreleased recordings. Our online fundraising offers premiums for donations. When I started up this effort, Ms. Go-Between wanted to offer a DVD of the farewell concert as a premium. So we did that -- and it cannot be changed now as donors have started to claim these premiums. Ms. G-B also wants to use part of the video's audio recording on the future CDs. We're gearing up to do fulfillment of the premiums, in part using the DVD made by the Videographer, and now it gets sticky. It seems that he expects payment for each and every copy of the concert DVD we give away, Ms. G-B agreed. Videographer also claims full copyright on the DVD. It seems that at best there is a dual copyright on this video. One to the Musician's estate, as performer/creator of the material, and one to the Videographer who taped and produced the DVD -- is that right? If we pay him all or some of what he's asking, does he then fall into a work-for-hire category, and thus assign his copyright to the Musician's estate? If he does the right thing and gives it to us at cost (the original assumed agreement), does he then retain his copyright, and have some rights to the eventual music CDs, if his audio tape ends up being used in it? How much money is at stake here? If you are dealing with less than 100 orders, you might want to enlighten the videographer as to total sales of this disk (and that it is not expected to make him rich). You can agree to pay him a royalty based on the disks that are actually paid for by fans (thereby avoiding advancing funds on a speculative basis) You can also offer a lower royalty for rights to the audio recording because the videographer's claims are not as clear with that disk. Get the royalty agreement in writing and have the videographer assign all rights if possible. If the videographer won't assign copyright, get an exclusive license for all of the rights discussed above. A simple agreement describing this arrangement will be fine.
Unrealism. If the videographer is being unrealistic and won't agree to the terms described above, he should be made aware that he will be unable to distribute, stream, reproduce or otherwise exploit the video unless he obtains permission from whoever owns the rights to the musical compositions. That's because the video contains (1) an audio-visual copyright reflecting the videographer's authorship, and (2) a copyright in the original musical compositions, in this case owned by the musician's estate. Based on this second copyright -- as well as any claims that the musician's estate may have regarding right of publicity or similar claims -- the videographer can not duplicate, stream, or reproduce the video or audio without the permission of the respective copyright owners.In other words, he is not the sole copyright claimant to the video.
What about dispute resolution? You can also suggest that the parties proceed to mediation or arbitration at California Lawyers for the Arts. If that fails and you're certain that the videographer will never sue, you can always consider the risky strategy of distributing the disks without permission.
The music CD. Typically music CDs are considered to be "sound recordings" which copyright law defines as “works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work.” Since your audio CD is derived from sounds accompanying a motion picture, we're not sure what to make of its status. We believe that it would either be considered a derivative work (derived from the video) or would be analogous to a sound recording. If it were a typical sound recording it would be jointly owned by the musician's estate, any other musicians who performed on the work, and possibly the videographer for fixing the sounds. The trouble with the videographer making claims to the sound recording only is that we're not sure that simply placing a microphone on stage, or hooking a direct feed from the P.A. to video camera constitutes sufficient originality to qualify for sound recording authorship. We doubt it, but we don't have enough information to be certain.

Old Band Videos: No Releases

Dear Rich: We have extensive old video footage of bands (a lot of it is over 15 years old) that I have been dubbing and want to try and do something with online and try and make a little cash. The bands were aware we were filming and had the option to purchase the masters, but chose not to. Could these be considered our art as we shot them and physically possess them. Most of the bands are now defunct and it would probably be hard to track them down for a release form, as most of our dealings were verbal agreements. If we start to do new ones, I would get a release from the band, but even if they signed it, would we (video crew people) be able to upload and charge for others to view and or purchase them?  Just thinking about the legal hoops you will have to go through has made us turn up the caffeine drip. (We've set out the legal rules below.) May we suggest another  strategy? Forget everything we're about to say and just do what you want. Unless one of the former band members later became a lawyer (and it happens) or is willing to hire an attorney, chances are likely your posted videos will become just more flotsam on the sea of low level infringements that are either drowning or enhancing popular culture (the grand jury is still out on that one). In any case, based on the odds, you're likely to survive intact. If there is an objection you may have to take down the video (not unlikely), or you may even have to deal with a lawyer (possible, but unlikely). However, what is extremely unlikely is that DOJ helicopters will land on your front lawn, forcing you to retreat to your safe room with a shotgun. (And can anyone tell us what's to become of the copyright of the fabulous MegaUpload theme song?)
Right, you had a question. You probably own the copyright in the videos because you shot them. The band (or their publishing company) probably owns the copyright in the songs (unless they are cover songs). If you want to include copyrighted music in a video, you need what's called a sync license from whoever owns the song publishing. Getting releases would help as you plan to make money from the band's trademarks and the members' individual personas. (BTW, whoever owns or possesses the masters doesn't matter too much; what usually matters the most is who possesses the legal rights.) BTW2, we've answered similar questions before (just type "sync license" into the "Search Dear Rich" box on the right) ...  just sayin'.

Can I Expose Exxon in My Documentary?

Dear Rich: I am making an independent film about life on our ranch with ExxonMobil. I had a blog for a few years and youtube page. For three years, I filmed lots of Exxon activities on the land that is owned by my husband. About a six months into my blog writing, ExxonMobil sued me for tortious interference saying "my shenanigans raised their operating costs" because they had increased inspections from regulators. So, I am aware of how they can be big bullies with their lawyers. However, when I was not intimidated, they just backed off and I kept filming and writing. I never got any releases from Exxon workers or subcontractors but I have the permission of the land owner (my family). Of course, everything has Exxon stickers, etc. I even interview the people working there. Exxon's partners (El Paso Corp) sued me for tortious interference and exposing trade secrets on my blog. But, we made an agreed judgement where those claims were dismissed with prejudice. I am planning to make my movie free and put it on iTunes and the Internet. I have this idea that free speech is more protected than commercial speech. But, I don't know if that is true and where I got this idea. I also think that people are less likely to sue me if they think there is no money in sales to fight over. What do you think? We admire anyone who has something to say and doesn't let other people stop them from saying it. But we're also protective of anyone who calls themselves a Dear Rich reader, so we'll provide the legal rules with a caveat that you're already probably aware of --  free speech will protect your rights, but proving you have those rights may prove to be a burden. There is some recent good news for you. Last month, Texas passed its version of an anti-SLAPP law (as explained here). Anti-Slapp laws even the playing field by stopping lawsuits that are used to censor speech. That law could prove helpful if the claims brought against you are trivial or have no legal basis. Anyway, here are the legal rules.

• Copyright - Because you did all the filming, we don't see much of an issue with copyright. If you are quoting from Exxon's written materials, using their photos, or video, that's an infringement but we think you have a strong fair use claim. However, as we always note, fair use can only ultimately be excused by a court which means you're spending money on lawyers.
• Trademarks - We don't see much in the way of trademark issues. The reproduction of trademarks in an informational film about Exxon is permitted under first amendment principles and we discussed those issues here. These rules regarding informational uses would protect you against claims for trademark infringement and trademark dilution. Our only suggestion would be to avoid modifying the logos.
• Privacy/Publicity Rights - Because your film is a documentary (and it's not a commercial endeavor), you may be able get away without releases as you are skirting right of publicity issues. However, without a release, the people portrayed in your film can possibly argue the film violates their right to privacy, or alternatively, it defames them. These aren't likely claims if you make a fair factual film, but as you know, employees who are concerned about retaining employment may regret their statements or wish to recant them. In your defense, you may be able to claim that their permission is implied by the fact that they talked to you and were aware of who you were, and that the material was being filmed. (In the future, you should consider getting a video release. While the camera is rolling, explain what you're doing and what the video will be used for and ask for authorization to use the material in your film. We explain more of these releases in our Getting Permission book.)
• Trade Secrets - You're familiar with this one. When you disclose confidential business information that you acquired by an unlawful means, a company can claim that you stole their trade secrets. So, if someone has stolen trade secrets from Exxon and they give them to you and you publish them, you could be enjoined (stopped) from distributing them. As you know, this is a gray area encouraging litigation because only a court can ultimately sort out what qualifies as a trade secret. 
• Contract Claims - You're already familiar with tortious interference -- when you're accused of coming between two parties to a contract to undermine their dealings with each other -- another gray area of law in which a he said/she said battle can drag on in the courts. Your settlement agreements may also establish some contractual limitations on your future behavior (although it doesn't sound like it from your description).
• Defamation/Trade Libel -- If you include untrue statements that cause harm to Exxon's business reputation (or to any of their executives or employees), you may expose yourself to defamation claims.
• Likelihood of Being Sued When There are No Profits -- You asked if you were a likely target if you had no profits. Profits probably only matter when discussing copyright, trademark and contract claims. And Exxon may not care about your profits, anyway. They may be more concerned about stopping the film (getting an injunction). You could be personally liable for defamation, right of publicity or other tort claims. Some people who make documentary films attempt to shield their personal assets by creating an LLC or corporation to produce, own, and distribute the film.