Legal Survival Guide

Lesson 16 of 27

Licensed and Copyrighted Music

 

Legal Survival Guide

Lesson 16 of 27

Licensed and Copyrighted Music

 

Lesson Info

Licensed and Copyrighted Music

A note about licensed music get it? No no um how do we use licensed music as creatives what do we use it for? Let's have a conversation internet let's have a conversation in studio audience how do we use license music? Why do we use license? Musician darius has slide show what else? Maybe you did like a video for a client and you added music to which where I guess would be the same as this client promo video ah lot of photographers now they're doing fusion photography will shoot some video actually combine it with their stills. How else do we use it what's the internet say anything flied shows shorts uh show reels photographers they're starting to do a lot of like short commercials, little digital shorts and things like that. Um and so obviously music is important to set texture and tone and feel to our images and we is photographers think that there's greater value I hate to say it, but we think there's greater value in using commercial already produced music rather than stock. Now le...

t's have a conversation about that. Um everybody think of your favorite song let's have a moment let's think of your favorite song okay, I've got mine now for every person that said that was your favorite song there's a person who associates a break up a divorce a car crash ah horrible moment in their life to that song so when you choose to pick that song to put it with your work remember that there's going to be a a fraction of your audience that's going to hate that song and it's going to associate it with something that was very negative in their life and so that's why a lot of photographers a lot of creatives like to use music that that lacks lyrics maybe they'll use ah song with an italian opera singer in the background or they'll use ah song that's um it doesn't have lyrics to it and in that way they can uh focus on the music they can use something that once heard before that moves along that's bright or somber or romantic but there's no real worry that somebody's gonna associate that song with a bad or unpleasant event in their life now that advice would have gone would have been well taken by the videographer that shot the tony roma wedding all right I don't know if you've heard about this but the tony romo married uh several years back and he gets he married candice crawford and uh people magazine said that their five minute wedding video uh made the uh hit the internet looking like a blockbuster movie rather than ah wedding footage and it went viral on youtube complement of cold place fix you as the music all right, so this how do you how do you think it felt to be that videographer he was pretty cool right? I bet his little likes on facebook we're blowing up he was worldwide until he got the letter from coldplay's lawyer okay now the video's gone and so are many wedding videos celebrating less famous couples the videographer who shot the promo crawford video was threatened with lawsuit for which he hadn't bought the rights he settled and agreed not to talk about it and chill has settled across the nice warm world of weddings now I talked to a debbie pp I last year I talked to ah photographer that knew this dallas videographer and he's like uh he he never expected it to happen um you know he didn't think that the thing's going to go viral or worldwide it was supposed to be private somebody else shared it you know he didn't intend for it to get out there in the wild and get published right but it certainly did and I think it did cost him quite a little bit of money so think about that that's just a example of one wedding videographer using one song for one wedding granted it was tony romo but the consequences are tremendous what do you think that photographer's reputation is like now? Ah lot of negative publicity so there are some solutions I did promise you ah summary of music licensing courtesy of uh roy ash and a triple scoop and if you go to apple dash studios dot com forward slash licensing dot pdf you will find a nice discussion of of licensing okay that's an apple dish studios dot com forward slash licensing and I think I think a lot of people including myself three years ago make the mistake of thinking that would say it is less intimidating that you can have coldplay playing on your website and it's ok but the rules still apply right and he said, oh yes yeah um it is a matter of fact there are entire departments of ascap bm I or the big licensing companies and they've got people to do nothing but sit around full time in troll the web and look for websites that are playing unlicensed music and you remember that dmca takedown notice that we talked about yesterday where you just sign the fancy letter and send it to the content provider and then all of a sudden your website is gone where your content is gone they do nothing but send out those letters to photographers and videographers content providers sucking your website off the web and that screws up your ceo it screws up your google ranking it screws up all kinds of stuff so it absolutely one hundred and ten percent applies to your web site and everybody's running music on their websites and, you know, there's two schools of thought on that I mean it could be very, very distracting if I'm there most people's attention span is about twenty seconds and it takes about that long for the music toe load to even begin to play on some of the flash based website. So you know, you might think about it just generally do I want music on my website? Lorenzo? So now if you have in there if you have music that is licensed and you have it on your website or whatnot there's a hell I get something at the bottom of the website saying that this music has been licensed by x, y z or whatever so that someone's not sending you a nasty gram or trying to take your side ofthe line that is a great, great question I use I love triple scoop and so triple scoops got some new licensing packages and it's a lot cheaper to use them, but that used to be you just by one of their songs for sixty bucks, and you could use it for any photographic purpose, not for corporate purposes but as a photographer you could, or even now you can even resell that work at a markup with their new licensing agreement to your clients. But I do let's say I did a wedding video and I used one of roy's songs that I really liked and I put it on there, which is, and they've got music by actual artists, okay? So I put it out on youtube. Well, next thing you know, I get this copyright infringement notice from youtube saying, hey, this song was made by so and so and you've got it on there and we're going to take you down or we're going to sometimes they'll say, we're going to start to run ads on your your youtube video because it's so it's, so and so song and you challenge that and you write back and you say, I bought this from triple scoop music and then they will e mail you back and they'll say, ok, thank you never mind that's how it works, so they're robots on youtube are searching for, uh, copyrighted music, and they're taking you down automatically facebook's doing the same thing now eso they're actually searching for the music is anybody used the shoes? Am I love this is am on the iphone where you know the music's playing on the radio if there's anybody over twenty five that's watching, I'll explain what this is the music's playing on the radio you hit the shoes, sam button, it recognises what the song is, and then I will tell you about the song and put the lyrics up right well, that's going on behind the scenes on all the server, so if you're using copyrighted music on your webber on your video or you're putting out there it's not if you're going to get caught it's when you're going to get caught I mean it could be very expensive let's talk about how expensive it can be my mama always told me craig there's consequences to your choices okay and if you haven't learned that at this point in your life let me know how that's working out for you and uh here's some examples walter smith this is a true story this has been several years ago and several of you have probably heard this but four but else I'll tell it again walter smith had um a licensed one of his pictures and the picture was of emit smith I think kneeling in the star of texas stadium if I recall and he had licensed them the right to use that uh I think it was for season tickets it was going to go on the tickets or something like that and there was a print run limit on the license agreement remember over here how many copies if it's for print how many copies there they're gonna be able to use? Uh so they had license so many copies what was a great picture so they took it and they used it all across their industry they sent it out in promo says they vastly exceeded the scope of his license and he asked to be paid for it so they uh they went back and forth for years and years trying to negotiate a settlement to this and it wasn't there wasn't any question but that they'd exceeded his license but the cowboys drug it out for three or four some years and ultimately they settled it and then after they settled it walter was a sports photographer and after they settled it they barred him from texas stadium so lorenzo if you're a sports photographer and you've achieved some prominence in dallas being barred from texas stadiums probably not going to be a step in the direction of advancing your career is it no no no no don't worry there's a happy ending there was an outcry among sports photographers nationally about how unfair that was that they'd steal from him and then put him out of business that they let him back in so walter to my knowledge is still ah professional sports photographer shooting this day but look his picture not only do you license it to him for x dollars on the first go around he got another two hundred seventy five thousand dollars for how many images folks one image one image and he had registered that image now if he had not registered that image what do you think this number might have looked like? You know, maybe not maybe they would make him uh I mean a court certainly could could order if possible the cowboys tio destroy you know any of the work that they put out there to go get it rounded up and burn it um but sometimes that's impossible here's another example uh kim reese is a photographer uh she created a photo back in two thousand seven it apparently was a lovely photo it was such a lovely photo that it inspired ms colucci uh her her company island treasures are to make a stained glass copy of the photo. All right, so here we have a photo that's fixed is a photograph we have somebody else that makes a stainless copy now we've taken it and we move mediums media from photo which is a visual work to stain glass another visual works so if we've transferred over to another type of art and that still is an infringement because it was a copy of an original work that had become fix so here merrily colucci and island treasures paid sixty grand to the kim race for the infringement. So sixty thousand dollars is not a bad price for a single photograph, is it? And why did she get sixty thousand? Because she registered it and there was no license now ah couple off mentions this is the uh the world that we we live in and we're going to advance this slide um just a quick question I would love that gm awesome sir. So one of our guests on the internet today wrote this and this is related to what we're talking about as well as the copyright registration yesterday uh this is about copyright law from yesterday about ten years ago I photographed a child in my studio the child grew up and became a star on reality shows on national tv programs they use my image without permission on the show from that session can I now go on register that image is is there anything I can do at this point? Yes and no how? Um normally we need to register the work within five years in order to get, uh the presumption that it's our original work okay, yes, we can still register it. I would suggest that she contact me off line and we could talk about that there's a couple of nuances to that the time frame bothers me a little bit but there might be a work around but that's exactly what bob and I were talking about yesterday you never know when that picture of that unknown child who is is just ah special part of you know, a mother's life for a father's life is somehow going to be have ah national prominence and that photograph is going to get stolen. We talked to you I think about bob senior pictures that perhaps he took of somebody who, uh let's say that that person there's tons of cases about uh photographic clients that commit crimes it's more likely that your clients are going to go commit a crime, then achieve prominence and there's ah very famous case of a child abuse case out of new york where a photographer I think was in a school uh and took photographs of a girl that was there that caught his eye on d n a brews I think somewhere on her body and he photographed it turned out that that child was injured or beaten or killed by her parents shortly thereafter and that one photograph was the key piece of evidence in the case and he licensed it very carefully to certain news agency's to use for very limited purposes and then once it got out there it got stolen seymour and I think he negotiated settlements with a bunch of other news outlets and it was just because he took one picture and registered it. So in the example of the question from the internet, you know that's why, if those pictures are registered quarterly or annually is unpublished works when you learn that your work is being infringed and chances are that reality tv show picked it up somebody else went and copied it five thousand times off the reality tv show website it's been in french across a wide platform and then people started thinking well, if it's all over the internet it must be okay if I use it too and then they keep taking it and taking it and taking it so to answer your question, jim, maybe we might be able to register it, get some protection, but we need to probably talk about that offline any other questions on that? Wait, do you have a question from frank german wanted to know are there some kind of example contracts for commercial licences to download? I want to license photos to an international company, but the company doesn't really understand the laysan length licensing process, and then a couple of other students are asking about what kind of fees? How do we figure out fees for licensing that there was a real art to figuring out how much you're going to charge for your product? And it depends ah hundred and ten percent on youse, because if if they're going to make a wide use of it, you're going to charge more if it's going to be ah one off, they're going to charge less think of a model let's say that I model for ah blue steel photography, I'm in high demand and bob wants to take pictures of me for his portfolio so let's say that I've got some prominence and bob just wants to shoot me for his portfolio and it's just for his personal personal use am I going to charge bob the same as I charge, you know kenneth cole, teo, use me for a ad that's going to go into a print magazine to be distributed nationally on black friday? No, I'm probably going to charge bob less. So when I licensed myself two bob in my my model release, I'm going to charge less when I licensed myself to the national agency for a national distribution. Uh, for a large print run, I'm going to charge muchmore so that's, what you have to think of, you know, don't ever worry so much about your client's ability to pay when deciding how much to license it for I think it's a mistake for us to presume that we know how much our clients are willing to pay for something. Um, you know, granted, there are some reasonable assumptions that we could make, but I think it it is important to remember that we never know how much somebody wants to pay for our work until we ask him, and they say yes or no, so I, that photo quote would be a great resource for, uh, how much to charge for your work as far as commercial licensing for international distribution. That's a tough question, because not all countries have joined are signatories to the berne convention, which give international copyright protection to our work, so we need to have a discussion about what countries the work was going to be distributed to if it's going to a country that doesn't recognize the berne convention, you're kind of out of luck, so maybe you'd say, you know, for international distribution, but not too, and we limit it to the the countries that I don't recognize the berne convention. But if he's got a problem like that that's when he wants to have a relationship with his lawyer, call him up on the phone because he's paid him the two hundred dollar retainer and they could have a conversation about it. And hopefully the lawyer will say, you know what? Don't worry about it. I've done this several times let's talk about what's going on with your personal situation, and we'll get the right form for you get it negotiated and drafted, etcetera. So that's how I'd handle that that's a great question. Great ous faras the first part of the question as faras example contracts way. Want to talk about your disk a little bit? Oh, sure. Yeah. I mean, I do have the the legal forms for photographers which are available that craig heidemann, dot com there'll be a slide for a little bit later. And we can we can get those two license agreements that we talked about earlier either I'm sorry the one license agreement or the transfer form it's available on there it's creative life special eighty nine dollars so if you're interested, check it out it craig heidemann dot com with two ends now if we do happen tio that used to be that one of the biggest infringers of photographer copyright was this little uh company from bentonville, arkansas called walmart and wal mart had these fantastic photo labs so it used to be a little history that we'd uh we'd shoot our rolls of film and we take him to a photo matter we take him to walmart and we put him in a little envelope and they'd send him away and in a couple of days our prince would come back and we'd have our pictures and then with the advent of digital photography we could just walk in and we could start scanning pictures so somebody could go have a wonderful senior picture done with myths zoe and they could get a wonderful print that she charged five hundred dollars for and mama could just love on it and she could take that tear stained picture that she just loves of her little susie and she could take it in the walmart and she could chunk it down on the scanner closed the lid, scan it, take her prints and distribute them to all of the other relatives that were too cheap to buy from zoey's package, right? And wal mart was facilitating the infringement of tens of thousands of photographs every single month. Well, the pp a came up with this secret shopper program and what they did wass they would have people members with a little time on their hands take photographs that they download from the secret shopper program, I believe, and they take him in and see if they could get walmart to print him, because wal mart was also printing anything. Um, so what they did was they would get the secret shoppers to prove that wal mart was infringing on these copyrights by making the copies, because who did what's, the copyright owner have the exclusive right to do reproduce? So if wal mart is reproducing, knowing that the person doesn't have the right to reproduce it, wal mart's right in there with him, and they were able to negotiate changes toe walmarts policy so that wal mart no longer does that, they've got certain special forms that you have to use here's, wal, mart's, new policy and try this if you've never if you've never done it, it's hilarious. If you go to wal mart and you ask them to print an image that's correctly and exposed that's in focus that has remotely any level of composition to it that is a professional photograph for which walmart will no longer print without you signing ah, copyright form that they'll give you saying I swear I'm the owner to this copyright they do believe that every photograph that is ah correctly exposed is now a professional photograph. Now I know this because I've got two children and my mother loves for me to give pictures of the children to her, so I'll e mail or a picture and she takes it to wal mart and I get wal mart won't print it. I'm like what do mean calm our own print it well, they say it's a professional photograph I said, well, no it's it's just a picture your son took of your granddaughter, they won't print it, so I've got to send my own mother ah copyright license because walmart takes the position that they don't want to get sued for. This is this has happened a dozen times if anybody else on the internet has had that happen to my walmart, tell me your story. I'd love to use it in some of my future presentations we'll keep an eye out ten I we talked about that earlier that is another great resource for seeing whether or not somebody has stolen one of your photos and ask captain b m I the music licensing sites they are out hot trot looking for infringers? They're looking for infringers all the time and when they find you, they send you ah very nicely worded letter asking for the license fee and ask captain b m I have standard license fees depending on the type of infringement and uh it's not unusual if you get a letter from ascap or be a my that they're going to ask you for five or ten or fifteen thousand dollars for your infringing use of the work and a lot of folks don't have that kind of cash teo to pay that indian's up, put them out of business now here's something else to think about nice, who enforces the copyright law it's criminal criminal penalties to willfully infringe upon somebody's copyright who enforces it? The immigrations and customs service ice and it is not unusual for you to go to a web site these days where you've worked for years with your search engine optimization and you've you've really worked hard to gain an online presence and you've got people checking into your block every day and you've got tons and dozens of where you got tons of followers and you've got a great online presence and then one day you get up and you take your coffee down to the computer and you long on your website and you see this this domain name has been seized by ice homeland security investigations pursuant to a seizure warrant issued by a united states district court under the authority of eighteen usc such and such willful copyright infringement is a federal crime that carries penalties uh for first time offenders up to five years in federal prison and a two hundred fifty thousand dollars fine forfeiture and restitution intentionally unknowingly trafficking in counterfeit goods is a federal crime that carries penalties for first time offenders and up to ten years in federal prison and a two million dollar fine forfeiture and restitution. Now what do you think that does to your brave and aria that's not going to help things? Is it that's not going to help things at all? So if you use a male is mallory said a lot of folks think they can use that copyrighted music on their website because it's not a commercial use even if it's a personal use it's copyrighted have we learned anything? If we don't know that it doesn't matter whether it's a personal use or a business use copyright is the exclusive right to reproduce, display, make derivative works from cell license transfer convey the work so if you have anything that's copyrighted on your website, it is not a question of uh if but when you may go down with your coffee to have the seizure notice put on there now look, this was wrapped godfathers dot com rap godfathers dot com I don't know if they're, uh, back up yet or not, but that was on their website, so make it your goal. Make it your goal not to have that graphic on your website. Yeah, I don't question about collage interest, other people who make composite works. Um, if they've say, taken a bunch of images out of magazine, re combined them and re photographed, it is that far enough away from the original copyright or where you're okay. So you were talking about a collective work where we're going to take a bunch of individual works, and we're gonna composite it up and make it kind of collect. Is it a collective work of separate images? We're going to make one image with a bunch of things in it, uh, problem, one image with a bunch of things in it. All right, all right. That's a good question. What do we learn yesterday? The copyright owner has the right to make this little thing called derivative works. Well, remember, we talked about a color so black and white. But what if we take that picture when we put it in another image that we take another picture and put it in another image? And we take another picture and put in another and it's calling, making a magazine except it's one image so we have to make sure that we have licenses and writes to make this new image. So in your example, is it one photographer that's created all the separate images who so we would have to negotiate license agreements with all of the other photographers to use their images. Now, here's the cool part. Once we do that and we make our new work, like, um, um, we can copyright the new work. We don't claim any copyright to the individual images, but because we had a license to use them, we can claim a copyright to the new work that contains other photographers. Images, innit? Uh, richard start event in, uh, texas makes a great living doing those kinds of composites. He, you know, I don't know if he used a stock, or if they're all his individual images that he puts in there, but those composites that he makes or new works, they could be derivative works from the, uh, copyright of works that he might include in there. So that is a great question, craig, a quick response from best little studio has been with us both days. They needed a quick print one time and went to wal mart and tried to have the image printed, and wal mart refused, said it was a professionally professional print and they needed a print release so I said fine you have the release I am the professional photographer I showed them my card showed them my cp s card everything they said you had no comeback with a release okay, this is this is the best take away of the day I die I love it when you know maur about wal mart policy than the actual wal mart employees does. So I'm going to tell you what you do in that situation wal mart back in their case of where they keep the prince I have some forms and you can also go to the wal mart photo website and download this form and take it with you when you go in but they'll ask you to put your order number in in your name and it's called a copyright declaration and you can take it in there with you when you go and as an added bonus because of all of the love I feel for my creative live brothers and sisters I have included that wal mart form on my forms diskettes free online you don't have to get the disc to get it but if you do happen to get the disc it's included on there and you can print it off of the disc and take it with you to walmart if you do happen to use them not recommending using wal mart is your primary lab I am a huge fan of miller's professional imaging, and I don't want them. Is my sponsor to think that I'm advocating that. We all move to wal mart for our prince services. I'm not at all, but sometimes you do have to run down the street and get something right away. And if you do, you can print that form out either from their website or ours, but they have an actual form. And then, when the person refuses to give her her prince, I'd ask to see the store manager. If I had my foreman hands and eyes that form directly to wal mart because, you know, people have been using directly toe warm people, been mentioning walgreens and other other places, you just kind of contact that proprietor. See what kind of forms they have you know and I don't know walgreens may have one target may have won I know walmart has their own form I would suggest that if you took in one of the license agreements here that it's not a license agreement is a declaration that I am the copyright owner they have two forms that wal mart has they have ah transfer a license agreement like I have that a photographer would sign to give a client the right to print and then the other one is a declaration form that says wal mart I swear to you I'm the owner and if you get sued I'll pay your attorney's fees because I'm the owner of the photograph that's what that form says fantastic well, I got to say our our crack c l regina just posted the pdf in the chat room of that wal mart copyright declaration. So thanks for gina again not recommending wal mart is your primary lab. Okay? So we are near the end of our discussion of of copyright and I will remind you that the bonus material includes ah starting your business checklist now we've gone through all of these things but it's nice to have a checklist to have all of the eleven steps that will ensure that you'll have a successful and complete organized business when you get to the end of the road. Any other questions about copyright any other questions about copyright craig, I wanted to know one thing. How do you best communicate to your clients that you adhere to licensing laws? You're giving them a licensing, you know, you're permitting them to use the images so many photographers ignore it so you might look like the stickler, how do you educate them? Did I tell the story about my high end client that I was delivering the videos for that really wanted three or four country songs used? I tell that story yet a real world example, great clients of mine, just wonderful people, the kind that you you wish you could have all year long, you really want to please them and, you know, creative, generally or people pleasers, we were here to try and make people happy. I mean, we're not trying to impose our will or our vision on, and we really want to make him happy, and so I have several packages that where you can add on either full video coverage or you can add on infusion coverage, I've got packages where I'll do ah montage of, you know, life, life story pictures for the reception and often have clients ask, well, I want this song for it twenty way this particular family really wanted me to use some particular songs that were of a particular significance for for the couple it really meant something to them and she explained to me why the songs were important and what happened when each song was being played and so it really made sense there's great context, why they wanted the song and now I mean, I know where this is going I know what I'm gonna have to toe to tell them and I'm just trying to think through how I'm going to do that, so the first thing I did was understand what they wanted I see how that would be very important I see why that's important to them I see blah, blah, blah I said, but even though we're not going to show this all over the world, this is kind of what we have to think about and so I started out by discussing the fact that even though those songs were really important to their kids, that might have bad connotations to everybody else. I talked about how words tend to distract from the the images and the storytelling I talked about, you know, the licensing and how I don't have the right to reproduce that and then I offered him alternatives so it's fine that people are willing to accept bad news, but they want to know well, what then they don't want you to just say no you want they they want you to say no, but you need to do this so I said you know what there is ah couple of there are a couple of great companies called triple scoop there's ah an emoto that we can use and we can go on there and we can listen to all of the music fine ones that you really like I can pick one for you we can find the style that's similar to the one that they want to use and we can we can go from there and I can use those images and then you can distribute it to your heart's content and then I also tell him that if we did use their songs and we poured to put it out on youtube where we were to put it out on facebook it gets taken down so they don't want to buy a product to put it in a place where they know that they're gonna put it on ly to have it taken down so we were able to use some great triple scoop music for their slide show that we showed it the reception they were immensely happy they published it all over the web it I don't know how many shares it god it was a tonne never got taken down on dh to my knowledge they've become my ideal client which is the customer of angelus which is going to go refer me tons of business over the years because I solved the problem explain to him why it was a problem and kind of moved on down the line from there. So that's a great question, mallory.

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Ready to turn your creative side project into a thriving business? Join Craig Heidemann for an introduction to the business and accounting principles every creative professional needs to know. 


In this class, Craig will take you step-by-step through the process of setting up, running, and growing a small business. You’ll learn how to use QuickBooks to manage your finances, including managing client contracts and invoices. Craig will also help you navigate the potentially-confusing tax, legal, and copyright issues surrounding small businesses. You’ll also learn how to contract and/or hire people to do the tasks you can’t do yourself. 

Whether you’re just starting out as a business owner or you’re a longtime entrepreneur ready for a refresher course, this course will give you a roadmap to business success.

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I'm literally fresh off the boat, as the saying goes, having moved back to the US after decades of living abroad. I have the photography down (in some measure due to the instructors and courses here at CL), but being new to the business of photography in this environment I was rudderless. This course helped answer all my initial questions and put me on the way to getting established in my region... and beyond! Craig makes legal issues almost fun with his jocular, engaging style. Thanks so much to Chase and the people at CL for knowing what courses real working photographers need.

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