- May 19, 2005 @ 12:22pmcampsoup1988 says:I am planing on making a music video again war. I plan on using a relased anti-war song, as a whole, giving credit to the musicaian. I also plan on using many picture from public websites that shows consquences of war. I plan to put the final product on my website with free acess to it. The only thing I did plan to take credit for the presentation of the final product of puting the pictures, satistics, and the music together. Would this be infrenging on any copyrights?
- May 20, 2005 @ 6:02amAFry says:Unless you are sued and a judge makes a determination in your case, there is no way that someone can give you a yes or no answer. That's just the way copyright law is.
Having said that, I believe that your what you want to do would be considered fair use, which is legal. Before I explain why, I want to give you some warnings.
1. Music companies like to sue people or at least threaten to sue. They aren't always right, but they have a lot of money that can be used to bully people.
2. What you are describing sounds to me like a short music video just like the ones on MTV. This is different from a documentary video that contains the song. If your finished product looks like a video that could be played on MTV, you are more likely to be threatened with a law suit.
3. Professional photographers sell their photos. Photos on public web sites are not necessarily public photos. Photographers who risk their lives by traveling to war zones will probably not like their photos being used without permission. That doesn't mean what you want to do is illegal, just that they might not like it. They might choose to sue or threaten to sue.
I don't think you are going to have any problem using factual material like statistics, so I'm not going to explain why. The next post will deal with using the song. The post following that will deal with the photos.
- May 20, 2005 @ 6:57amAFry says:Fair use must be determined on a case-by-case basis using the four factors. You must make your own determination, but here are the four factors and my determination:
1. Character of use: commercial or educational. You aren't selling your video, but if you are using the video to advertise a product on your web site, such as anti-war t-shirts, your use could be considered commercial. As long as you are selling nothing, I'd say that your use is educational or informative. This factor probably works in your favor.
2. Nature of work: creative or factual. Clearly creative. This factor works against you.
3. Amount used. You are using the whole thing. This factor works against you.
4. The effect of your use on the market value. Almost everyone agrees that this is the most important factor.
First, a lot depends on what song is being used. More recognizable songs are more likely to work against you.
Sound quality should also be considered. If someone wanted a copy of that song, would that person be satisfied with the version that will be on your site? If the average person would be satisfied, then you might have a problem.
Personally, I believe that your proposed use would not affect the market value at all. I suspect that you want to use a song that is recognizable to the average American, but I don't think people will steal it from you. I think most Americans who want the song either already have it, will buy a CD, will legally download it, or steal it from a site dedicated to providing that service.
I think this argument would be persuasive to a judge, but I don't think you have a chance of persuading the music company's lawyers. You might be able to strengthen your case by providing a link to a legal source for purchasing the song.
You could also seek permission from the copyright holder. I do not recommend this approach in this case. I believe that the music companies will almost always refuse such a request. Those that do grant permission will probably require an unreasonable fee.
- May 20, 2005 @ 7:26amAFry says:Now for the photos:
1. Character of use. Same as before. Probably in your favor.
2. Nature of work. Probably less creative than before. However, I probably wouldn't consider any photo taken by a professional photographer as factual, especially if the photos contain humans. It depends on the photos. I'd assume that this factor works against you.
3. Amount used. The whole thing. This factor works against you.
4. Effect on market value. I am not an expert on the market for photos. However, a photo that appears on the cover of Time is almost always unmarketable as a cover photo for Newsweek. On the other hand, the fact that a photo is on the cover of Time may increase the market for books by the photographer.
Personally, I don't think your proposed use affects the market at all. However, I believe that professional photographers are extremely sensitive to use without permission. I also believe that the market for photos is much trickier than the market for songs or articles, and I am sure that the professional photographers understand that market much better than you or I.
Without knowing what photos you want to use, I would tend to assume that your proposed use is fair.
You could also seek permission. Your chances of success depend on the photographer. Big-time photographers, who you might not recognize by name, are more likely to refuse or require a fee. However, I suspect that the fee would be a reasonable one. Small-time photographers are more likely to give permission and may even be ecstatic that you want to use their photos. Personally, I probably would not ask for permission.
I'll wrap things up in the next post.
- May 20, 2005 @ 7:31amAFry says:Overall, I believe that your use is fair. However, a judge may determine otherwise. More importantly, the litigous nature of the music industry, and possibly the professional photographers, means that your use will not be free from risk. Personally, I think the worst that could happen is that you would have to remove your video from your web site. But that's me. You need to make your own determination using the four factors and assess your own tolerance for risk.
- May 20, 2005 @ 12:00pmcampsoup1988 says:1. I now plan to go back and try to ask the photogrphers permision (I did save their sites) (I did not think of them as being copyrighted when I first started gathering my resources)
2. I do cite my satistics
3. the songs I plan to use is Edwin Starr's "War!" (I beleived it was released 1965) and Barry McGuire's "Eve of Destruction" (I beleived it was released in 1970)
4. I have nothing on my site that is for sale and I do not plan on selling anything
- May 23, 2005 @ 2:33pmdan says:Using most any portion of these songs is pretty clearly infringing. If a listener can come to your site to hear the song anytime s/he pleases, then s/he doesn't need to buy the song. There is indeed a negative efect on the market. Trust me, you will recieve a notice to take it down. About the only good thing I can about the RIAA is that they are likely to do that before actually suing.
- May 24, 2005 @ 5:36amcampsoup1988 says:I think I should mention that my site does not get traffic. I have had my site running for over a year and I only got a dozen hits or so (all from people I know) I cant seem to get google to add my page to their lists.
- May 24, 2005 @ 8:42amAFry says:
Using most any portion of these songs is pretty clearly infringing. If a listener can come to your site to hear the song anytime s/he pleases, then s/he doesn't need to buy the song. There is indeed a negative effect on the market.I'm sorry, but I have to disagree with these statements. First, I think the portion matters. You can listen to approximately 25 seconds of "War!", including the part everyone knows, on the official Motown site: http://classic.motown.com/product.aspx?ob=disc&src=art&pid=588. If Motown believes that the clip decreases the market value of the CD it promotes, why would Motown make it available? The portion doesn't equal the whole. Second, I don't believe that the availability of a free version of the entire song necessarily has any impact on market value. When considering the impact on market value, market size and market location should be considered. Market Size: A single illegal use is negilible in a market that consists of thousands of people. However, a single illegal use is critical in a market that consists of three people. Market Location: Consider black market watches. The last time I was in New York's Battery Park, several people offered me black market watches. The last time I was in a cornfield, no one offered me anything. Someone who wants a watch isn't going to go looking in a cornfield. Someone looking for a copy of "War!" isn't going to go looking at campsoup1988's web site, even if it appears on Google. Someone looking for a copy of "War!" is going to go to a store, a music web site, or a web site that facilitates illegal downloads. I agree that the RIAA will believe that almost any use is infringement. I also agree that a judge might determine that infringement has occured. However, I don't believe that campsoup1988's proposed use is "clearly infringing."
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