Legality of using music on a website - part 749

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Archive 2009 · Legality of using music on a website - part 749

lisy78
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p.1 #1 · Legality of using music on a website - part 749

Ok, I relize this has been to some extent discussed before, though mostly based on the threads I looked at things got muddied up with slideshows for sale, etc.

I'm trying to wrap my mind around wether it really is enforceably illegal to use music on your website.

Try as I might I can't quite understand how SONY would and could successfully sue me for having music I legally purchased on CD playing on my web photography gallery, if they would not (and I suppose could not) sue me for having music I legally purchased on CD playing in my phisical photography gallery.

This is NOT about creating slideshows for sale for customers with copywrighted music on them. I can understand how that might appear to be "reselling" their product, but why is it ok to play a CD in a physical store, but not to play the same CD in an online store?

I've searched google in vain trying to find an example of a website being sued for PLAYING legally purchased music, and could not find a single instance. I also tried to specify photographer sued for music on website... and again... nothing.

Could someone please point me to where I can read about how it's ILLEGAL to play music on my site but LEGAL to play music in my store?

Of course if the deal is that it was never legal to play music in the store, then good luck... nearly EVERY freggin' store in America does that. If nobody's ever gotten sued I'm probably NOT going to be the first.

And yeah... if I DO get sued by some big muzac company THAT will be my defense: "Explain why it's ok for Joe Schmoe to play the CD in their physical store but I do the same on my online store and suddenly I'm some sort of underworld criminal."

Thanks!

Sep 20, 2009 at 05:03 AM

jeremy_clay
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p.1 #2 · Legality of using music on a website - part 749

I just ask.

Sep 20, 2009 at 05:08 AM

lisy78
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p.1 #3 · Legality of using music on a website - part 749

You ask who?

Sep 20, 2009 at 05:14 AM

sk5t
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p.1 #4 · Legality of using music on a website - part 749

BMI and ASCAP do shake down stores, bars, etc., that play recorded music. No free lunch...

Sep 20, 2009 at 05:26 AM

ksmahgrts
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p.1 #5 · Legality of using music on a website - part 749

you have to pay for music for the same reason that a musician would have to pay a usage fee to license an image you shot of him.

want it for your mommy's mantle? $50+
want it for a poster that will be plastered all over the city? $500+
want it for your CD cover that's being released nationwide? $5000+

when teenage girls see your hunky picture of their favorite boy band on that CD cover, they rush to get it. your work + their work = dollars in that musician's pocket. you deserve a chunk of that change.

likewise, you use that musicians work paired with your images to evoke an emotion that compels a client to book, thereby putting money in YOUR pocket... well. the musician deserves a chunk of that change.

http://www.ascap.com/index.aspx has some great resources to help you understand the process and regulations.

here's a sampling of the types of licenses: http://www.ascap.com/licensing/types.html

and here are brochures, explaining music copyright and licensing in layman's terms: http://www.ascap.com/licensing/brochures.html (the one called Using Copyrighted Music - under the Music in Business section is particularly helpful)

Sep 20, 2009 at 05:32 AM

ksmahgrts
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p.1 #6 · Legality of using music on a website - part 749

oh and here's the reg re: use in stores:

Exemption from payment for radio and TV music for eating and drinking establishments of less than 3,750 gross square feet, and for retail businesses of less than 2,000 square feet, plus additional equipment exemption for some larger establishments. Medium to larger establishments are still required to pay for music licenses.

Sep 20, 2009 at 05:33 AM

sboerup
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p.1 #7 · Legality of using music on a website - part 749

Legally enforceable? You betcha.

Are they going to spend $10k to send their big lawyers to sue you for $15k? Probably not.

I'm with jeremy, I just ask. So far I've been given permission from the artists.

Sep 20, 2009 at 05:39 AM

sk5t
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p.1 #8 · Legality of using music on a website - part 749

ksmahgrts wrote:
oh and here's the reg re: use in stores:

Exemption from payment for radio and TV music for eating and drinking establishments of less than 3,750 gross square feet, and for retail businesses of less than 2,000 square feet, plus additional equipment exemption for some larger establishments. Medium to larger establishments are still required to pay for music licenses.

That's only a small part of it. There's no exemption for playing tapes, CDs, iPod, etc., only radio and TV. Presumably a photog isn't going to tune to "Hot 99.1" in the studio...

Sep 20, 2009 at 06:00 AM

ksmahgrts
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p.1 #9 · Legality of using music on a website - part 749

sk5t wrote:
ksmahgrts wrote:
oh and here's the reg re: use in stores:

Exemption from payment for radio and TV music for eating and drinking establishments of less than 3,750 gross square feet, and for retail businesses of less than 2,000 square feet, plus additional equipment exemption for some larger establishments. Medium to larger establishments are still required to pay for music licenses.

That's only a small part of it. There's no exemption for playing tapes, CDs, iPod, etc., only radio and TV. Presumably a photog isn't going to tune to "Hot 99.1" in the studio...

of course that's only a part of it...

hence all the other links.

Sep 20, 2009 at 06:04 AM

pchaplo
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p.1 #10 · Legality of using music on a website - part 749

yes they can enforce it. if you buy a CD it is for personal use, not licensed for commercial use of the music.

...sort of like one of your wedding customers using one of you images for a perfume ad. they are not licensed to use the image that way.

likewise you are not licensed to use the music on the CD you bought as a soundtrack for your website ...or a video ...or a motion picture.

Sep 20, 2009 at 06:05 AM

sk5t
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p.1 #11 · Legality of using music on a website - part 749

ksmahgrts wrote:
of course that's only a part of it...

hence all the other links.

The OP specifically mentioned playing CDs in his shop, and how that is "okay." The exemption you posted does not apply to CDs, but not-lisy might have interpreted it as applicable on the basis of the square-footage guidelines and so on.

That said, I'd be interested to know if something like pandora or last.fm counts as radio play, as there are no commercials, and you can more closely get what you want, than dealing with terrestrial radio.

Sep 20, 2009 at 06:11 AM

monoatomic72
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p.1 #12 · Legality of using music on a website - part 749

Have you ever tried making one or more songs into a nice segue of your photos?

You can probably get away with fair use of a mashup of songs. Picking some that work well together, could help tell the story of the pictures.

For instance if you have a set of happy go lucky dancing people in a wedding, playing sad soft love music, it's a bit of a contrast. Playing faster upbeat music while showing pictures of the MOB crying, again, not so great.

I haven't seen if done before, but I think a nice mix of some good music, strong editing, and good timing could really put a photo gallery over the top. A nice soundtrack that complimented your photos instead of one static song playing throughout the album might work very well.

Sep 20, 2009 at 08:34 AM

jeremy_clay
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p.1 #13 · Legality of using music on a website - part 749

The artists. Spring Awakening granted me permission, another contact I spoke with said it woul be "..too much of a hassle" to obtain written permission, but he was sure they wouldn't care and to "..just go for it", etc.

Sep 20, 2009 at 02:09 PM

TRReichman
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p.1 #14 · Legality of using music on a website - part 749

The bottom line is that is isn't legal, even though in many cases its highly unlikely that you would get caught. Especially with playing music in your studio. Nevertheless copyright-karma isn't something I want to draw the ire of and I've legally licensed popular music for use on my site. One of these days, someone's going to rip off some of your images and make money off of them - do you want to feel that you deserved it?

We are agents in the copyright struggle, and we owe it to our industry to set a good example and enforce good copyright standards, not try to circumvent them. Be professional by being responsible.

- trr

Sep 20, 2009 at 04:15 PM

TRReichman
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p.1 #15 · Legality of using music on a website - part 749

p.s. - oh yeah, the "Joe Schmo" defence, where you claim that someone else was doing it so you should be able to also never works. Try that next time you try to get out of a speeding ticket.

Sep 20, 2009 at 04:24 PM

cordellwillis
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p.1 #16 · Legality of using music on a website - part 749

So far ksmahgrts is the only that provided something of substance for what is requested. This is like listening to your customers....provide what was asked for folks.

Anyone else want to give it a go

Sep 20, 2009 at 04:29 PM

flash
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p.1 #17 · Legality of using music on a website - part 749

+1 to ksmahgrts and TRReichman.

I'm surprised that any professional photographer would even consider stealing music, given how often images are stolen and used without permission.

Gordon

Sep 20, 2009 at 09:52 PM

lisy78
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p.1 #18 · Legality of using music on a website - part 749

TRReichman wrote:

p.s. - oh yeah, the "Joe Schmo" defence, where you claim that someone else was doing it so you should be able to also never works. Try that next time you try to get out of a speeding ticket.

I have to disagree.

This is actually one of the few (if not the only) areas of the law where the "Joe Schmo" defense can actually work.

If you know of infringement of your copyright AND DO NOT do everything you can to stop it, you are weakened in future cases. Therefore the argument "Photographic studios, shoe stores, gift card stores, etc. etc. etc. etc. have been playing music from CDs they legally bought for DECADES, it's unreasonable to presume that you were not aware of this, and I can't find single case where you actually sued them" may in fact be the only defense that gets you off the hook.

Sep 21, 2009 at 04:58 AM

ksmahgrts
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p.1 #19 · Legality of using music on a website - part 749

...and why would you not just be reasonable, ethical, and lawful to begin with?

Sep 21, 2009 at 05:03 AM

lisy78
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p.1 #20 · Legality of using music on a website - part 749

ksmahgrts wrote:
you have to pay for music for the same reason that a musician would have to pay a usage fee to license an image you shot of him.

want it for your mommy's mantle? $50+
want it for a poster that will be plastered all over the city? $500+
want it for your CD cover that's being released nationwide? $5000+

when teenage girls see your hunky picture of their favorite boy band on that CD cover, they rush to get it. your work + their work = dollars in that musician's pocket. you deserve a chunk of that change.

Grits,

thanks for the references, I will check them out.

As to the above... that's the kind of argument I keep seeing touted over and over and over, and quite frankly IMHO it's apples and oranges.

The problem with the mommy's mantle = $50 but plastered all over the city =$500 but nationwide CD distribution = $5000 is NOT really one of what the client did with the image, but rather REPRODUCTION.

I suspect that if someone took the 8x10 they bought for mommy's mantle, carefully cut it to the size of a cd box and placed it in a cd case, the photographer would NOT expect additional compensation.

In the same way, if I take some nice portraits of you and you buy a 20x30 print you pay me $XXX.00 for it. You can put it in your living room, or you can put it in your Restaurant lobby and I'm fine either way. It only becomes an issue if you think you're going to take that one print, make hundreds of copies and put them up in your 5,000 locations that we have an issue.

If I'm understanding this correctly, the bottom line is that it was never legal to begin with to install a stereo system in your store and play CDs you bought at BestBuy over the speakers, not that the rules are different for a web gallery vs. a physical art gallery.

Sep 21, 2009 at 05:06 AM

lisy78
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p.1 #21 · Legality of using music on a website - part 749

jeremy_clay wrote:
The artists. Spring Awakening granted me permission, another contact I spoke with said it woul be "..too much of a hassle" to obtain written permission, but he was sure they wouldn't care and to "..just go for it", etc.

I hate to say this but it's quite likely that under most recording contracts the artist doesn't even have the right to grant you permission to play it. I could be wrong here, but I would NOT be surprised if I were right.

As for me asking for permission... it's a bit complicated... the artist passed away when I was 6 years old and I've lost my Ouija board

Sep 21, 2009 at 05:09 AM

ksmahgrts
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p.1 #22 · Legality of using music on a website - part 749

lisy78 wrote:

If I'm understanding this correctly, the bottom line is that it was never legal to begin with to install a stereo system in your store and play CDs you bought at BestBuy over the speakers, not that the rules are different for a web gallery vs. a physical art gallery.

no. the rules actually are different for a web gallery v. storefront gallery. there are hundreds of different license scenarios. on hold music, public performance, DJ, etc etc etc

the problem is not where you play the music, but in what context. every ear that hears the music while exposed to your work is essentially a "reproduction" - the music enhances the viewing experience (or why else would you use it?) enhanced experience = bigger bucks.

i don't exactly understand your most recent post... but the links i shared will certainly provide clarification.

Sep 21, 2009 at 05:19 AM

lisy78
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p.1 #23 · Legality of using music on a website - part 749

flash wrote:
+1 to ksmahgrts and TRReichman.

I'm surprised that any professional photographer would even consider stealing music, given how often images are stolen and used without permission.

Gordon

How about we avoid using inflammatory words like "stealing" when they're not required.

FWIW stealing music is when you steal a physical CD from a store, or when you go somewhere shady and download music without paying for it.

Playing music from a CD you lawfully bought, on a stereo you lawfully bought, in your store where you lawfully pay rent... may be a lot of things, but I'm not sure you need to call it stealng.

I just took the CD that I'm using apart.. read every single line of text on the disc, on every bit of paper included with the disc (case, leaflet etc) ... and nowhere is there any mention that playing the CD in a public establishment violates anything. There's an express indication that unauthorized duplication is a violation of copyright law, but nothing about playing the CD in a store.

So my question is simply... how th heck is someone supposed to presume that it's in fact NOT OK to play the damn thing in their store?

And if you're supposed to guess... fine... for what else are you supposed to guess?

Can I have a magazine that I bought at a bookstore in the same waiting room where I play the CD music, for my customers to read? or am I supposed to go get a special license for that too? If not, how is a magazine that I'm basically letting tons of people read for free any different from a CD that I'm letting them hear for free.

The bottom line, dude, is that things aren't quite as Black and White as you may think they are... so again... let's ease up on the words.

And no, really... how the heck is someone supposed to guess that they can't play this CD in a store? Can I use regular Home Depot lightbulbs in my store? Or do I have to get some specially licensed ones from GE? Yeah... I'm being facetious... but seriously... how the heck is one supposed to know?

Thanks.

Sep 21, 2009 at 05:24 AM

ksmahgrts
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p.1 #24 · Legality of using music on a website - part 749

things are black and white. using someone's property - be it concrete or intellectual - without their permission, is, in fact, stealing. there's nothing inflammatory about that.

ignorance of the law does not give you the right to break the law. contempt for the law does not give you the right to break the law.

as a business owner it is your responsibility to educate yourself on the laws that impact your business. it's really as simple as that.

Sep 21, 2009 at 05:34 AM

lisy78
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p.1 #25 · Legality of using music on a website - part 749

ksmahgrts wrote:
...and why would you not just be reasonable, ethical, and lawful to begin with?

Let me address these one by one:

reasonable - I believe I'm being reasonable. If it's ok to play the CD in my store then it should be ok to play it on my online store. If it was never ok to play the CD in my store then I have two questions:

1. How the heck was I supposed to know? Nowhere on the CD or any of the paperwork that came with it does it say anything about playing it in a public establishment as a limitation

2. If I'm supposed to guess that sharing my music (in terms of letting them hear it) with customers is NOT ok, why is it ok to share my magazines with them in the waiting room?

Ethical - I suspect that if you asked 100 otherwise ethical, legal and upstanding citizens "I bought this CD at BestBuy and I'd like to play it on my stereo in my photography studio, is that cool?" you'd get an OVERWHELMING MAJORITY of YES answers... even accounting for those who feel it's yes but answer NO figuring that the mere fact that you're asking must mean that the answer is surprising. So I'm not sure that there's anything Unethical about my question

Lawful - Again... I will read the links you provided, but as far as I can tell it's not like the music companies have made it easy for me to see that it's unlawful (nothing written on the CD about it) ... morevoer again... ask 100 people on the street "I want to play a song on my website, what do I need to do to do it legally" ... I bet you'll get 100 "who the heck knows" ... in fact I'd bet that if you asked 100 random Music Industry employees you'd still get like 98% "heck if I know"

This is like a secret speed limit on the road tha has no sign telling you that THERE IS a speed limit... nobody knows WHAT the speed limit is, and if you get a ticket there's no mailing address to send your money to.

No, seriously.

Sep 21, 2009 at 05:36 AM


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