MY DAUGHTER AND MUSIC COPYRIGHT!

Feb 13, 2012   //   by adelia   //   Blog  //  No Comments

So why has my eight-month-old daughter Chloe potentially infringed copyright?

Well, we were watching music television the other night and ‘Flat Beat’ by Mr Oizo came on. Chloe thought this was magic and started dancing to it. I grabbed my little stills camera and recorded the moment for prosperity. However, I’d missed the start but still had four minutes of video that seemed too long to watch (unless you are her father!). Therefore I edited the whole thing down to just over a minute over the original soundtrack. So the question is; have we stolen the music and therefore infringed copyright? Before we go any further here it is for your viewing pleasure:

 

Music copyright is potentially a legal minefield – especially as there are circumstances in which you can use other peoples work. It’s called ‘fair use’ and is designed to ensure that copyright law does not stifle free speech and incidental use of copyright work.

So, have I stolen the music? Well, the UK copyright service do a very good and thankfully very short fact sheet which explains the in’s and out’s of copyright. Read through this and it does appear that I have infringed copyright…

But what about fair use? These are three possible defences:

  • the music was incidental
  • the music was used or the purposes of news reporting
  • the music was used in parody

Well, the music was incidental to the film – it was Chloe’s performance that was being depicted – but then surely part of the enjoyment of the performance is down to the music (unless you can’t stand the music!). In fact, it could easily be argued that the music made up a large percentage of the video and was a major part of the production.

This wasn’t a piece of journalistic work – although it could be argued that it was a depiction of something that spontaneously happened and as such represented a real event. The story of that event was purely edited for time in the video as per any television news package. This was not a set up, and for myself, my family and (some) of my friends, this was an important story to tell!

It could be argued that the video is a work of parody. The original use of the music was to advertise Levi jeans. They used a hand puppet called Flat Eric, who danced in a repetitive motion just as Chloe did…

Finally, it is an excerpt of the copyrighted work not the whole. If you can establish that you are only using a minor part of a work it may be decided that it is not an infringement of the whole. However, there is no percentage or agreed amount that you can use and it would therefore be down to the court to decide whether an important part of the original work had been used without permission. In this case, since ‘Flat Beat’ is one bar of music repeated for five minutes with little variation, you would have to use much less than a bar to not be using a major percentage of the original work! Clearly that is not the case with Chloe’s film…

Really, whether or not copyright has been infringed, is not as important as whether the copyright holder feels aggrieved enough to take you into the civil courts. Despite, what would appear to be an infringement of copyright, when taken on balance, is it serious enough to warrant the time and expense of taking an individual to court who its unlikely will not be afford to pay enough damages to make the whole exercise worthwhile? Sometimes it can be to make an important point – in Chloe’s case I don’t think it is worth anyone’s time, effort and money in this particular context.

Don’t for a minute think I don’t take copyright seriously. If someone stole Adelia Television’s work and held it up to be their own I would be miffed! However, if they used it in a positive way and credited us I would be very happy! Recently, I wanted to contact a creative agency to see if they had any video work. On checking for their contact details on their website I found they had posted one of my videos on their twitter feed which appeared on the homepage. However, it was credited to Adelia Television with a link back to our website and could only be seen as a positive inference! Did I take them to court? Nope – I was ecstatic!

However, if you are a greasy, money grabbing, PRS executive getting excited about extorting a large sum of money from Adelia Television – please be aware that we either buy licensed production music or write all our own music for our clients and we would rather take Chloe’s video off YouTube than pay exorbitant sums of money in licensing…

Issues over copyright tend not to arise with the original creator of the work. It is the licensing agencies that have got over zealous in their collection of money since physical sales of music went into terminal decline. Ridiculous stories are rife – my hairdresser was told he had to pay several hundred pounds a year to have the radio on – he was told he was conducting a public performance of the copyright work on the radio station! He has so far ignored the threatening letters and phone calls – I’ve advised him that PRS are not so foolish to take him to court as if he wins they would have set a precedent that would harm an important income stream. However, I am extremely concerned by the threatening nature of these phone calls and I know of large, public organisations that have spent tens of thousands of public money on ridiculous and tenuous licenses in similar contexts.

I think people should stand up to this type of bullying – so I hereby nail my colours to the mast – and wait to see if anyone wants to take me to court over my video, of my daughter…

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