Recording Audio at parade with dance teams passing while dancing to Copyrighted Music

Louisiana,

I recorded some "live video" with "audio" and also separately some "live Audio" ONLY during the Mardi Gras parades in New Orleans 2012. Sometime dance teams would pass by with music playing such as "Britney Spears" etc. Crowds are cheering etc along with all the other sound of crowds on the streets.

Its clear that the purpose of the audio is to capture the essence of Mardi Gras crowds etc and not to resell copyrighted material of a artist that is being played by the passing dance teams.

I just started putting my stock video footage and audio online to see if I can make a few bucks. I have not put any with the dance teams playing national artist like "Britney Spears" etc.

Is it legal to sell live street sounds only with music in the background by a national artist? Same question for Video with the audio.

If I remember correctly, if a "Coke" sign or something like that is in view and is not the main focus of the shot, and you in no way disparage "Coke" etc, then its legal. I'm just not sure about my situation.

Thank you in advance for any legal advice.What is the name of your state (only U.S. law)?What is the name of your state (only U.S. law)?

Whether your sale of the video of the Mardi Gras parade, or your sale of the audio recording of the songs played during the parade, would lead to an infringement action is a question mark. It depends on several factors, including the amount of the music recorded in the video and the litigiousness of the copyright holder.

My feeling is that the video should not create any legal difficuties for you, if only small snippets of the copyrighted songs and music are used. The audio alone may cause a copyright holder to issue a cease and desist. But these are my guesses, and these guesses come without having heard or seen what you filmed and recorded.

Although this is a defense to copyright infringement and NOT permission to USE copyrighted material, a court could/would look at your use of the copyrighted music in your video as "de minimis" - the infringement could be looked at as insubstantial, and an inconsequential use of the copyrighted material. This is what is the case generally in situations such as your "Coke sign" example. The momentary, fleeting use of copyrighted material in a video is not a "fair use" of copyrighted material but rather a "de minimis" use, unlikely to cause harm to the copyright holder.

The audio alone is iffier. You are basing your sales of the audio on the copyrighted music (albeit with crowd noises in the background). This could potentially cut into the profits of the copyright holder, infringe on their rights, and, because the quality of the sound would not be great, could be objectionable. The audio version of your film could potentially be compared to the audio of a live performance, where shouts, whistles and applause are heard.

The best advice I can give you is to show your video and have your audio listened to by a professional in your area. Commercial uses of another's copyrighted material will always be more legally risky than would be the case if your audio/video were used only for your own personal enjoyment.

Good luck.

Remember, "It's the same as stealing." Or so they say. As quincy so aptly points out--it's not.

Ha. I was wondering when the forum member who most hates the copyright laws would show up.

The use as described here by DJPG could get DJPG sued for infringement, regardless of what a court COULD eventually find, because there is a use of copyrighted material without permission of the copyright holder. See Sandoval v New Line Cinema Corp, 2 147 F.3d 215 (2d Cir 1998) for an example.

That is why my caveat. It is potentially infringement. It depends on ALL of the facts whether this infringement is actionable and could cause DJPG any legal woes. Most people don't want to be sued. At least, I assume they don't.

So even these "technical" violations of the law (as some prefer to call them) are still violations of the law. It is up to each individual to determine for themselves how much legal risk they are willing to take (and that goes for speeding, drinking alcohol while underage, smoking marijuana, shop lifting, scanning books for personal use, whatever).

IP rant:
At least the world is waking up to the ridiculous lengths of the law.

No one is safe. After getting spanked by trying to take over the internet to assure the profitability of their business model, NOW it's all about child pornography.

At least the world (or a small portion of it anyway) is perhaps waking up to the fact that there IS such a thing as copyright infringement and that using copyrighted material without permission can be far costlier for them than seeking permission for use beforehand or simply purchasing a copyrighted work outright.

The law, however, is what it is. If changes are to be made to the law, it is up to those who object to the law to go through legal channels to change it.

Calling copyright holders scammers and crooks and trolls, or breaking the law in protest of the copyright law, does not seem to me to be a very effective way to change the copyright laws (although, I suppose, it did help to have individuals like Rosa Parks around to focus public attention on unfair laws and get them changed ).

There is no copyright infringement in showing the video or audio from the event. Although there may have been music playing in the background, that does not infringe upon the copyright of the work because the OP was not the proximate cause of the audio.

The question is: Did the OP cause the copyrighted materials to be introduced into the final production of the recordings? and Is the music the focus of the recording? If either answer is yes, then an infringment may have occurred.

In this case the answer is no and no (according to the OP's version of events). The OP was recording live media in a public environment and had no control over what music, sounds or other stimuli was produced. The recording falls under a documentary. On the second question, the music is not the focus of the recordings, but the atmosphere.

In the case that 'quincy' cited, the answer is yes and no. The production company did cause the copyrighted materials to be introduced by dressing the set which caused the lawsuit. The material however was not the focus of the recording. It was eventually tossed because of the limited exposure of the material anyway.

IF a person goes to a concert and records the concert for posting the answer is no and yes. The person didn't cause the music to be played, but it is the focus of the recording which results in the infringement.

quincy said:

At least the world (or a small portion of it anyway) is perhaps waking up to the fact that there IS such a thing as copyright infringement and that using copyrighted material without permission can be far costlier for them than seeking permission for use beforehand or simply purchasing a copyrighted work outright.

The law, however, is what it is. If changes are to be made to the law, it is up to those who object to the law to go through legal channels to change it.

Calling copyright holders scammers and crooks and trolls, or breaking the law in protest of the copyright law, does not seem to me to be a very effective way to change the copyright laws (although, I suppose, it did help to have individuals like Rosa Parks around to focus public attention on unfair laws and get them changed ).

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You didn't just compare intellectual property laws to the civil rights movement, did you?

I disagree with you antrc170 to the extent that we have no idea what was filmed, how much or what music was used, or whether a court would find this a fair use or a de minimis use of copyrighted material. And it ultimately would take a court to determine this in the event the copyright holder of the music challenges DJPG's use.

There is no way any of us here can make any sort of definitive statement.

Whether the video and audio would attract the attention of a copyright holder is an unknown. What the result of DJPG's use and sale of the video and audio version of the parade can or will be are simply guesses on both your part and mine. There are legal risks when copyrighted material is used in any commercial fashion.

I suspect that the video would be fine and the audio on its own not so fine based entirely on the little amount of information provided here and based on a knowledge of several similar case decisions.

I would love to say that there is no problem here and everything is perfectly legal and, sure, what the heck, go ahead and sell the audio version of the parade and go ahead and sell the video. I am not certain, however, because I have not seen the video or heard the audio and from this distance there is no way to have that certainty.

And, yes, Zigner, I did. Pretty pathetic, huh?

quincy said:

And, yes, Zigner, I did. Pretty pathetic, huh?

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heh - just making sure my eyes weren't playing tricks on me

I disagree with you antrc170 to the extent that WE have no idea what was filmed, how much or what music was used, or whether a COURT would find this a fair use or a de minimis use of copyrighted material. And it ultimately WOULD take a COURT to determine this in the event the copyright holder of the music challenges DJPG's use.

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Remember this when they tell you it is the same as stealing.

The law, however, is what it is. If changes are to be made to the law, it is up to those who object to the law to go through legal channels to change it.

Calling copyright holders scammers and crooks and trolls, or breaking the law in protest of the copyright law, does not seem to me to be a very effective way to change the copyright laws (although, I suppose, it did help to have individuals like Rosa Parks around to focus public attention on unfair laws and get them changed ).

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Go to Social Science Research Network (SSRN) Home Page and type in "copyright" for articles describing the problems with the law. I'm sure there are some there supporting the current structure too. (Although you might have to go a couple pages in.)

quincy said:

I disagree with you antrc170 to the extent that WE have no idea what was filmed, how much or what music was used, or whether a COURT would find this a fair use or a de minimis use of copyrighted material.

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I have no argument with that. My position is based on what the OP posted as being the factual information of the event. If the information we recieved is different from what was presented, then absolutely the answer would could change. Based on the info provided I don't see any infringement because the OP didn't introduce it and it wasn't the focus of the recording (de minimis).

tranquility, better than the SSRN articles to support your statement that copyright infringement is not "stealing," you can read Dowling v United States, 473 US 207, 1985, where the Supreme Court stated that illegally making copies of a copyrighted work is not theft, conversion or fraud.

Copyright holders (and some/most courts) still consider it, or refer to it, as theft, though.

antrc270, I actually understood that you were basing your post on the little amount of information disclosed in the original post. But, even with the little amount of information provided and based solely on that, it cannot be said definitively that the video or audio is not infringing. In fact, I sort of suspect the audio would be.

For some cases to review, should anyone really care enough to review them, are the following:

Grand Upright Music Ltd v Warner Brothers Records Inc, 780 F.Supp 182 (SDNY 1991), where it was decided that "sampling" of music requires licensing from the copyright holder. The Court, as a note, said that "the defendants...would have this court believe that stealing is rampant in the music business and, for that reason, their conduct should be excused." (bolding mine, quote added for tranq's benefit )

Bridgeport Music Inc v Dimension Films, 230 F.Supp 2d, where the Court of Appeals rejected a "de minimus" defense to the sampling of music. The Court said: "Get a license or do not sample."

Campbell v Acuff-Rose Music, Inc, where the Supreme Court said that for commercial uses, the duplication of a work in its entirety was not a fair use as it would or could cause market harm to the copyright holder.

Ringgold v Black Entertainment Television Inc, 126 F.3d 70 (2d Cir 1997), where the Court rejected BET's "de minimus" defense and found them infringing on Ringgold's copyrights. This case was referred to in the Sandoval case I cited earlier.

In addition to using "de minimus" as a defense to copyright infringement, there are also four "fair use" factors a court looks at - the purpose and character of the use, the nature of both the original and new work, the amount and substantiality of the portion taken, and the effect of use on the market for the copyrighted work.

In the described situation here, if the video only captures the incidental sounds of music, there will probably be no problem (and this is true of any documentary film - but filmmakers often must edit out "too much" of any copyrighted music playing in the background to avoid suit). The audio, on the other hand, may not be viewed as street sounds with the music as background, but instead could be seen as competing in sales with the original copyrighted works. It would have to be heard to get a clearer idea.

Unfortunately, there is no bright line test for determining whether a use will be judged a "de minimus use" or a "fair use." There are guidelines and case law to refer to. Defenses to infringement will be judged on a case-by-case basis and it is up to the defendant to prove his/her defense.

That is why a review PRIOR to use of any copyrighted material is wise and advised, or getting permission to use the material from the copyright holder. It would be the rare person who wants to wind up in court as a defendant in any action.