Exact length of music clip Andy -J- ??

[slimbob]

Hi Andy

How are you?

I hope all is going well?

I contacted you a while back about the use of short sections of movie soundtracks to be inserted in my videos.

You gave me great advice as usual about substantial/ insubstantial use of copyright material.

Andy I am about to shoot my first 1-hour video, which will be broken down into lots of short 2 - 7 minute sections.

I thought it would be sensible to double-check two things with you Andy before I proceed. .

Concern 1

I want to use a short section approx (5 seconds) of Brahms famous lullaby music to coincide with a character who is asleep. I understand that as Brahms passed away in 1897 that all his music will be in the public domain so I am hoping it will be o.k. However where is a good place to find a safe to use recording as I imagine the orchestra might hold the copyright on the recording??

I am hoping as I am only using 5-7 seconds it should not be an issue either way??

Would this thinking hold true with all classical music in the public domain? As long as I am only using very short incomplete sections of the overall work?

Concern 2

The second and the more concerning is about using a very small bit from the Rocky motion picture soundtrack about 5-7 seconds maximum. It is to coincide with character shadow boxing, as the music is strongly associated to boxing.

With regards soundtrack clips that are not in the public domain Andy is there a rule of thumb to follow (ie) like you are safe to use a specific % of the overall track length or movie length?

So if the Rocky track is 3 minutes long and I am using 5-7 seconds I am using less than 5% of the work? If using the length of the movie then it would represent a tiny %!

I must point out I am only using the 5-7 second rocky section once it is not being repeated in any way in the video .


It would be great to have a rough guideline that I can use and adhere to for future videos of a similar nature.

I just don’t want to come unstuck here.

My videos are to be uploaded on you tube and then embedded on my website.
I will not be selling them but might make money from the site where they are housed (i.e.) selling advertising space on the site and affiliate marketing etc.

So there could be a small indirect commercial component to the videos??

Thanks a million Andy

All the best and I hope you are having a great weekend.

Rob

[AndyJ]

Hi Rob,
Good to hear from you again.
As you have correctly identified, the problem with using classical music which itself is in the public domain, is the likelihood that a modern recording of it will still be in copyright. Copyright in a sound recording lasts for 50 years from the year it was first made (or the year it was released to the public if that is later), so ideally you should look for a recording made before 1961 and you should be OK. If you have music on CD, check to see when the original recording (ie the master tape) was made, because re-issuing a recording in a different format (eg CD rather than cassette, vinyl or shellac) does not re-start the clock. However many of these re-issues claim to be digitally re-mastered, so that might constitute a derivative work which would re-start the clock. I am not aware of any test case which clarifies the law on this.
Concern number 2 is tricky. The question of what is substantial has been decided in many different ways by the courts. The percentage time method you mention would certainly by one way. But equally if the 5 seconds you use somehow encapsulates something of the essence of the music of the Rocky movie (and not the movie itself which is a separate work), that might be classed as substantial in quality terms. I have seen it argued that the five notes which the spaceship initially plays in Close Encouters of the Third Kind constitutes a copyrightable tune. This is on the basis that anyone who has seen the film will instantly recall it on hearing the notes. Personally I think this analysis slightly misses the point about what constitutes the essence of a work. And we should not forget that the people likely to take umbrage are not some long dead composer but a Hollywood studio who have both the resources and the motivation to protect their intellectual property even on the most tenuous of grounds (see the dispute between George Lucas and Andrew Ainsworth over the copyright in a storm trooper's helmet as an example).
Regretably I can't give you a firm rule of thumb to work from. In my personal opinion I don't think the clip would constitute infringement, but frankly my opinion is not worth any more than that of the first person you meet in the street.
Sorry not be more helpful.
Andy

[slimbob]

Hi Andy

Thanks very much for the advice.

Copyright really is a grey and complicated thing!!!

Out of interest with regards finding public domain recordings of classical music etc I have been looking on Wiki Creative Commons but do you know of any other great sources online for finding copyright free classical music recorded before 1960 etc?

By the way Andy I found a guy with a video on You Tube playing Brahms Lullaby on his harp. Really good and perfect for my video. As the music he is playing is in the public domain and he has played it then I imagine he has some copyright ownership linked to it? I used (KeepVid) to extract just the sound of the video into a mp3 recording. His total track length is about 2 minutes and I will use about 5-7 seconds.

As he has allowed people to share and embed his video from you tube on blogs and websites I take it using it is acceptable????

Or would I need to contact him?

I think the chances of anyone picking up on this are extremely remote would you agree?

If this approach is sound then if I found a sound effect on a You Tube video like a machine gun for example could I extract just the sound and do the same thing as with the harp sound from the Brahms Lullaby video mentioned above?

This would be great, as I need a boxing round bell ring and have found one on You Tube

Or is this another potential problem??

Thanks as always Andy for your great guidance and help.

All the best

Rob

[AndyJ]

Hi Rob,
Harp music. Theorectically the harpist has a performance right in his performance and the fact that someone has posted it on Youtube does not necessarily mean he has put his perfromance in the public domain (ie that he has waived his copyright). Not all the users of Youtube are quite as careful as you about the legal details! Clearly if you can contact the musician and get his permission, that would be best. If he is an amateur he might be flattered that someone bothered to ask.
Sound effect. I think you are on pretty safe ground using a sound effect. Although theoretically someone may have 'performed' the making of the sound (in the style of banging two coconut shells together to make the sound of horses' hooves), I doubt if a court would take a claim of infringement seriously! The maker of the sound effect would need to prove that it was his sound effect that you used.

[slimbob]

Thanks Andy

That is great news!!!

I really do appreciate all your help with this.

All the best.

Rob

[RedRobin]

I know this is an old thread but if a filmaker creating their own video uses a song or short clips of a song and the chosen song is linked to PRS or such an organisation which collects royalties, does the filmaker still need to apply to the song's copyright holder/s for permission?

My thoughts are that by registering their original song with PRS (or similar), the copyright holder is in effect permitting a licence in return for receiving royalties.

In the context of this thread, couldn't the video maker 'slimbob' widen his scope of choice by selecting such music?

Also, there are agencies which give licences for the use of songs which they have been permitted to.

[AndyJ]

Hi Robin,
As I think you probably know there are two separate elements involved here (the recording and the underlying song) but there three separate copyright collecting societies involved, namely PRS (previously known as the Performing Rights Society), MCPS (the Mechanical Copyright Collecting Society) and PPL (Phonographic Performance Limited). Fortunately PRS and MCPS operate together as PRS for Music. Here is an explanation taken from the PPL website:

Do I need a licence from both PPL and PRS for Music?
PPL and PRS for Music are two separate independent companies and in most instances a licence is required from both organisations for you to legally play recorded music in public. While both organisations licence the use of music and collect royalties for the music industry, each represents different rights holders and have separate licences, terms and conditions.

PPL collects and distributes money for the use of recorded music on behalf of record companies and performers. PRS for Music collects and distributes money for the use of the musical composition and lyrics on behalf of authors, songwriters, composers and publishers.

As that extract says, they collect licence fees for the respective rights owners, so yes, if someone has a relevant licence from them for a work which is within their repertoire then you don't need to contact the writer of the song, the performer or the record company for permission.
However to take the example of the harpist SlimBob mentioned, it is quite possible that he was not registered with any of the societies and so his personal permission would be required to use his performance.

Incidentally, Robin, in the context of your main thread, this little snippet from the PPL site may be of interest regarding the playing of (legal) music to your friends in your own home:

A PPL licence is required when recorded music, including radio and TV, is played in public. There is no statutory definition of 'playing in public' (also sometimes referred to as 'public performance') but the UK courts have given guidance on its meaning and ruled that it is any playing of music outside of a domestic setting – so, for example, playing recorded music at a workplace, public event or in the course of any business activities is considered to be 'playing in public'. In contrast, any recorded music being played as part of domestic home life or when there is an audience entirely comprised of friends and/or family (such as at a private family party) does not require a PPL licence.

Note that this does not condone the playing of an infringing copy but clearly the same definition of public performance would apply if that was what was being listened to.