On Fri, 16 Aug 2002 13:38:29 -0500, in rec.video.production you wrote:
["Paul Tauger" ]

>. . . to the question, "Is it infringement if my video contains music played
>by the band at a wedding?"
>
>Unfortunately, the answer isn't exactly definitive (and somebody owes me a
>beer! ;) ).
>
>First, a disclaimer:
>
>NONE OF YOU ARE MY CLIENTS. I AM NOT YOUR ATTORNEY. THIS IS NOT LEGAL
>ADVICE. I AM DISCUSSING AN ABSTRACT PRINCIPLE OF LAW THAT IS OF GENERAL
>INTEREST. NOTHING IN THIS POST IS A LEGAL OPINION. DON'T RELY ON ANYTHING
>I'VE WRITTEN. CONSULT YOUR OWN ATTORNEY IF YOU HAVE A QUESTION ABOUT
>POTENTIAL LIABILITY.
>
>Okay, with that said, (and please, read and heed!):
>
>The particular legal doctrine at issue here is called "Incidental
>Reproduction." Incidental reproduction occurs when, as the name implies,
>copyright-protected material is reproduced as an incident to another
>activity, for example, in a motion picture, an actor is shown reading a Time
>magazine or, as is of interest to everyone here, when a wedding videographer
>tapes the couple's "first dance" and, in doing so, records the music played
>by the band or DJ.
>
>When Congress codified the equitable doctrine of fair use, it gave some
>examples (which are not part of the statute, but are part of the legislative
>history, which is considered "persuasive" when construing the statute) when
>the fair use defense would apply. These examples included: "incidental and
>fortuitous reproduction, in a newsreel or broadcast, of a work located in
>the scene of an event being recorded.' " 1975 Senate Report 61-62; 1976
>House Report 65, U.S.Code Cong. & Admin.News 1976, p. 5678.
>
>Unfortunately, there aren't a whole lot of decisions which deal with this
>subject, and they aren't consistent.
>
>I've found two cases, Italian Book Corp. v. American Broadcasting Co., 458
>F.Supp. 65 (S.D.N.Y. 1978) and US v. ASCAP, 1993 WL 187863 (S.D.N.Y. 1993),
>that come close to being on point. Italian Book involved a plaintiff
>songwriter who sued a television crew that videotaped a parade at which
>plaintiff's song was played. The Italian Book court held the parade
>videotape to fall within the "incidental and fortuitous" fair use exception.
>The ASCAP case which, apparently, dealt with royalty allocation and
>collection by ASCAP, includes a reference to another unpublished decision in
>the same matter in which a magistrate judge held that fair uses, which
>included "ambient music incidentally picked up during news and sports
>broadcast" should trigger either a full-program ASCAP fee, and should not be
>included in ASCAP's incidental-fee category.
>
>However, at least one court has rejected Italian Book, denying fair use when
>an entire song was broadcast, not as a news event, but as live coverage of a
>festival. See Schumann v. Albuquerque Corp., 664 F.Supp. 473, 477 (D.N.M.
>1987).
>
>Nimmer, a legal treatise on copyright which can be cited as persuasive
>authority in American courts, characterizes application of fair use doctrine
>in this context as "spotty." Also, bear in mind that Italian Book is a NY
>district court case, and isn't binding anywhere. ASCAP is also a New York
>district court case, but it is an unpublished decision, which renders it
>even less persuasive. Schumann is a New Mexico district court case and it,
>too, is not controlling authority anywhere.
>
>So, where does that leave us?
>
>Well, unfortunately, with very little guidance from the courts. Wedding
>videos are funny things -- on the one hand, they can be considered analogous
>to news, in that they report an actual event. On the other hand, the public
>interest in allowing greater lattitude to news organizations isn't present
>(or, at least, not to the same degree) for wedding videos. It's simply
>impossible to predict which way any given court might go -- the focus might
>be on the commercial, non-news aspect of a wedding video, resulting in
>infringement liability, or it might find the fact of limited distribution
>and impact on the commercial market for the underlying work does, in fact,
>constitute fair use.
>
>Remember that fair use is an _equitable_ doctrine which is a _defense_ to
>infringement. The "equitable" part means that it is a fact-specific
>doctrine; different courts may come to different conclusions based on
>seemingly minor factual variations. The "defense" part means, you won't
>know whether you're liable or not until you're actually sued and a court
>rules.
>
>If I were advising a client, I'd probably recommend the following:
>
>1. Get an express, i.e. written, non-infringement opinion from an attorney.
>A proper non-infringement opinion from competent counsel is, for all intents
>and purposes, prima facie evidence that infringement was _non-intentional_.
>This is important, both in terms of limiting liability if you are sued, and
>for number 2, below.
>
>2. Get a policy of general liability business insurance which includes an
>"advertising injury" provision that is sufficiently broad as to provide
>coverage for an infringement action predicated upon inadvertent inclusion of
>copyright-protected material in the video. Note, though, that whether or
>not a given policy will protect someone in such instance is, in itself, a
>difficult question to answer, and the answer should be provided by an
>attorney (or, better still, by the insurance agent, _in writing_). Number
>1, above, is important because these insurance policies only protect against
>_negligent_ infringements; intentional infringement are outside the scope of
>coverage.
>
>3. It would seem from the case law that, the less use made of the protected
>original, the more likely it is to be found fair use incidental
>reproduction. Therefore, it's probably a good idea to avoid using entire
>songs. I can think of other ramifications as well. For example, if you do
>an L- or J-cut, the "incidental music" would be functioning more as a
>soundtrack than as an incidently and fortuitously recorded background to a
>specific event, so I'd limit use of "incidental" music to the actual event
>it accompanies.
>
>I can't (and won't) tell anyone in this group what they should do. It is
>important to realize that this particular factual pattern, i.e. incidental
>reproduction of music in a wedding video, is far from settled at law; I'm
>not sure anyone can give a dispositive answer at this point. My personal
>inclination is that incidental music in a wedding video probably should be
>considered a "fair use." However, I don't sit on any appellate courts, so
>my personal inclination doesn't count for much. That is, however, the
>defense that I would raise if one of my clients were sued in this context.
>
>Finally, remember that what I've written here is the product of about 10
>minutes of very hasty research. I would NEVER counsel a client based on
>such a skimpy review of the law. This is a complex question that requires
>more than just a passing review before an informed opinion can be provided.
>
>Now, who's buying me that beer?


Ooops . . . typo correction:

The ASCAP case which, apparently, dealt with royalty allocation and
collection by ASCAP, includes a reference to another unpublished decision in
the same matter in which a magistrate judge held that fair uses, which
included "ambient music incidentally picked up during news and sports
broadcast" should NOT trigger full-program ASCAP fee, and should not be
> included in ASCAP's incidental-fee category.

In other words, ASCAP shouldn't be able to collect licensing fees for such
uses, which come within fair use.