Photographers Stealing Music - Unfair Competition

Recently, I have noticed a sharp increase in the number of photographers who are violating copyright by using unlicensed music on their websites and in their slideshows. Even some very prominent photographers are using popular recordings, with no indication whatsoever that they have properly licensed the music.

I believe this seriously harms our industry -- when our clients see photographers flagrantly violating music copyrights, how can they take us seriously when we ask them to respect our photographic copyrights?

In addition, stealing music gives an unfair advantage to the thieves -- how can I, using unknown but licensed music, compete with somebody using a well-known piece of music that stirs a deep emotional reaction in the viewer/listener?

I'm beginning to find myself in the unpleasant situation where I must either just accept unfair competition, or else become some sort of little policeman, turning in brother photographers to music publishers and copyright holders in an attempt to keep a level playing field. I really don't want to do this, but at some point, if we can't find a way to police ourselves, what is the alternative?

For a good description of the issues surrounding use of music on websites and in slideshows, check out this attorney's site:

http://www.ivanhoffman.com/music.html

How are we going to deal with this growing problem?

Have you looked into the price of liscencing a piece of well known music for use on your website?

It is certainly not beyond the means of a well known professional to afford a clip of music or even a whole tune, and if that's the case what does "with no indication whatsoever that they have properly licensed the music." mean?

what indication should there be? If they've licensed it that's between them and the artist/record label, they don't need to display it publicly.

Get a talented band you're friends with to perform a cover of a tune you want, buy the rights to use that cover of the song. Recently we purchased rights to cover songs and it cost 10 cents per disk printed for very famous songs from very famous artists, and that was for selling the album! You're not selling the music, so the cost should be relatively low.

I agree about the problem of people breaking any form of copyright for any reason, but I think it's just as unethical to take advantage of royalty free music is bad for musicians in the same way that royalty free stock photography is bad for our industry.

http://www.riaa.com/reportpiracy.php

--
http://www.almariphoto.net

k_strecker said:

Have you looked into the price of liscencing a piece of well known
music for use on your website?

It is certainly not beyond the means of a well known professional to
afford a clip of music or even a whole tune, and if that's the case
what does "with no indication whatsoever that they have properly
licensed the music." mean?

Click to expand...

OK -- it's "possible" but far from likely.

1st, you need to obtain reproduction or mechanical rights to burn the recording onto DVD, or store it on your website's server. This can only be obtained from the recording's owner, and few if any record companies are set up to deal with minor issues like using a song for a photographer's slideshow.

2nd, you need to get the right to perform the work publicly. This is relatively easy to get from ASCAP or BMI.

3rd, you need to get synchronization rights to put the song in a performance synchronized to pictures. Again, there is no clearinghouse set up for these kinds of licenses -- you must negotiate directly with the owner of the copyright, and this is extremely difficult to do, even if you can afford the fees.

4th, you probably need a master use license from the recording company -- again, individually negotiated.

While POSSIBLE to obtain these things for some songs, the legal fees alone could surpass what the average wedding photographer makes in a year. It's just not realistic.

As far as how we know -- fair point. Every time I go to the movies or watch TV, the songs are listed and license is acknowledged in the credits. I do the same on my own slideshows when I use llcensed music I have purchased the rights to use. Whether or not this is a legal requirement, I don't know -- but it should be.

In this time of heightened awareness of copyright issues, I think we all need to make sure we cross our t's and dot our i's. The alternative is widespread fingerpointing and turning in photographers -- which will result in a lot of bad feelings, retaliations, etc.

Thanks for posting the link.

Personally, I'm not ready to start pushing that button - YET - I'd like to see the photographic community attempt some sort of self-policing. But if that doesn't happen, I don't think there is any other alternative.

We have some hard years economically coming up for the photo business. Any photographer who does not protect his business with due diligence does so at the risk of his or her livelihood.

Best,
Paul

What makes you need legal fees in order to obtain licensing?

We called the artists managers, found out who owned what, called them, bought the license. done. Mechanical rights only in this case. But advertising agencies don't need lawyers to purchase rights to our photographs. The rest of that process is no more involved than incorporating your company as an LLC or obtaining a business license.

The other thing, is what research is there that says the music is doing all that much to benefit the studio that's using it on their site?

There seems to be much more advice out there telling people to stop using music on their website. If your photos need a soundtrack to have emotional impact, I don't think you'll have to be worrying about the threat of that competition.

k_strecker said:

What makes you need legal fees in order to obtain licensing?

We called the artists managers, found out who owned what, called
them, bought the license. done. Mechanical rights only in this case.

Click to expand...

Well, you need more than mechanical rights to use music in a slideshow. You need synchronization rights.

k_strecker said:

But advertising agencies don't need lawyers to purchase rights to our
photographs. The rest of that process is no more involved than
incorporating your company as an LLC or obtaining a business license.

Click to expand...

It certainly can be that easy -- particularly if you use music represented by a company like Triple Scoop Music, that specializes in this kind of licensing. But for must popular music, it's not that simple.

As far as your analogy to incorporating your company or obtaining a business license -- that's a lot of work for the average number of songs a photographer uses in a single year. I'm not sure I'm up to doing the work needed to get an LLC thirty times in a year!

k_strecker said:

The other thing, is what research is there that says the music is
doing all that much to benefit the studio that's using it on their
site?

Click to expand...

A fair point -- and to each his own. But are you really suggesting that the answer to copyright infringement is to just stop using copyrighted materials altogether?

k_strecker said:

There seems to be much more advice out there telling people to stop
using music on their website. If your photos need a soundtrack to
have emotional impact, I don't think you'll have to be worrying about
the threat of that competition.

Click to expand...

Right. But just because YOU don't see the value of something doesn't give you the right to suggest that everyone who DOES see the value of it is automatically inferior, does it? Many, many displays of photographs by highly respected photographers employ the simultaneous use of music, and surely you know that. So what's your point, exactly?

We all make choices in our business marketing -- do we NEED a Livebooks website or could we build one ourselves? Do we need to shoot with a full-frame camera, or can we get by another year with that 40D? Do we need to attend seminars and trade shows, or can we get by without them?

In the end, we all make different choices -- but I'm not sure choosing to ignore a competitor's flagrant copyright violations is a wise choice, no matter how you frame your rationale for ignoring it.

k_strecker said:

Have you looked into the price of liscencing a piece of well known
music for use on your website?

It is certainly not beyond the means of a well known professional to
afford a clip of music or even a whole tune, and if that's the case
what does "with no indication whatsoever that they have properly
licensed the music." mean?

what indication should there be? If they've licensed it that's
between them and the artist/record label, they don't need to display
it publicly.

Click to expand...

I don't know if it's required or not, but the standard "used with permission" notice could've prevented this thread.

Many people who license do not bother posting the legalese to state they
have it. Some of it's ignorance, some laziness. I am not aware of a legal
requirement to use the phrase "used with permission".

However, the bottom line is that once you have a licensing arrangement with
the proper entity, they are aware of your website, because you told them.
Hence, saying so in public is a bit pendantic.

Where they would get irritated is if you told them and then they find out you
are using the material for something else not covered by the license.

I don't have a ready answer for what Paul Grupp brought up, as things are
changing so fast it's not funny. You have the fair use crowd lobbying against
the "all Your Base Are Belong to Us" crowd led by Orrin Hatch and Disney.
The RIAA would like to tie things up so badly that you are paying each time
you hear a work in perpetuity. Title 17 allows for fair use, which is not
necessarily free use. The solution will be somewhere in the middle.

I just make it point to stay away from ASCAP and BMI material, as I have had
to deal with these clowns back many years ago, when they considered it
gravy money to harrass DJ's over retail purchases for perfomance rights. I

really don't care how popular a song is - if I want to use it, I'll go right to the
artist to get permission. If it's too expensive, I'll tell them so, and thanks
anyway. You'd be surprised how willing some are to work with people.

Robert J. Gonzalez said:

k_strecker said:

Have you looked into the price of liscencing a piece of well known
music for use on your website?

It is certainly not beyond the means of a well known professional to
afford a clip of music or even a whole tune, and if that's the case
what does "with no indication whatsoever that they have properly
licensed the music." mean?

what indication should there be? If they've licensed it that's
between them and the artist/record label, they don't need to display
it publicly.

Click to expand...

I don't know if it's required or not, but the standard "used with
permission" notice could've prevented this thread.

Click to expand...

Genix said:

I really don't care how popular a song is - if I want to use it, I'll
go right to the
artist to get permission. If it's too expensive, I'll tell them so,
and thanks
anyway. You'd be surprised how willing some are to work with people.

Click to expand...

That's the bottom line. Honestly, they'd really like to license the music to you, get it some more exposure, and get some money in return. That's their job after all, and getting something legally is better than getting nothing and having people use it anyway.

Website slideshows and DVD slideshows are two different things.

In the UK, getting licences for popular music for DVD slideshows is easy and cheap. You need one of these:
http://www.apv.org.uk/pdf/PPL_Application_Form_2007v2.pdf
and one of these:
http://www.prsformusic.com/musicforproducts/LM/Pages/LM.aspx

Total cost: under ten pounds.

Website licensing is a more expensive proposition, so there it is generally more realistic to go the RF route (much as I dislke it as a concept).

Ben

--
http://www.photographybybenlovejoy.com

Here in the US, not so simple.

I know exactly what you mean Paul. The new guy in the next town from us uses any and every tune he wants to in his CD sales. (for HS seniors) We have many requests to do the same and cannot compete with him unless we violate federal laws and put ourselves on the line. I would like to turn him in but I don't want to lower myself to that level. We just explain to our clients how he is breaking the law and could lose his business over it. I'd like my kids to eat with a roof over their heads for a while longer.

"Recently we purchased rights to cover songs and it cost 10 cents per disk printed for very famous songs from very famous artists, and that was for selling the album"

The use you've described is subject to a compulsory license, with a statutory rate for royalties (rather than having to negotiate with the copyright owner):

http://www.law.cornell.edu/uscode/17/usc_sec_17_00000115----000-.html

And I think the statutory rate is 9.1 cents per ?

255.3(m)

http://www.loc.gov/cgi-bin/formprocessor/copyright/cfr.pl?urlmiddle=1.0.2.7.11.0.178.3&part=255&section=3&prev=2&next=4

The recording industry's rates are outrageous..by doing that they force the other side of the fence..if it wasn't so expensive they would get more license registrations..just like the movie industry and software industry. The cost of the product is so high, especially in this bad economy, it is cheaper to just do it and worry about the consequences later. Can you believe the cost of CS3 or CS4? No wonder there is so much piracy in programs for photographers. I don't do slide shows so I'm not guilty, I just am pointing out that the cost of the licensing is so bad they have no one to blame but themselves for forcing photographers to do it.

The only people I turn in are photographers who do not get a business license to pay their taxes just like I do.

k_strecker said:

Get a talented band you're friends with to perform a cover of a tune
you want, buy the rights to use that cover of the song. Recently we
purchased rights to cover songs and it cost 10 cents per disk printed
for very famous songs from very famous artists, and that was for
selling the album! You're not selling the music, so the cost should
be relatively low.

Click to expand...

Mechanical or Syncronization license?

Mechanical is fairly easy, though the Harry Fox Agency. As Paul says, though, we need Syncronization license to use it for slide shows, and for web sites, we need Digital Licensing:

http://www.harryfox.com/public/licenseeServicesDigital.jsp

In my experience, Syncronization license is much more difficult to obtain. There's no price break for use of a song for a single client's slide show.

Cover bands need to license the work, too, when they record it (Mechanical). As soon as you take that recording and sync it to some images in a slideshow, you've over extended their rights. Getting a sync license from someone who's only gotten a mechanical license is going to invalidate your license in court, as the license grantor doesn't have the right to give you that license.

But hey, don't take my word for it. Go see a lawyer. Expect to pay a premium price for good advice, but if you think you're getting sync licensing to any tune you want for ten-cents a use, you're either fooling yourself, or you've found the holy grail for those of us putting slide shows together.

Paul - I try to keep a clean house, but I'm not so sure about it that I'm willing to draw attention to myself by putting myself on the RIAA Radar, even as a whistleblower. If that's what you think you need to do in order to be competative, though, I'd have to respect you for your decision.
--

• Arved

'Highlights next to shadows to create detail, depth, dimension and added color saturation.' - David Ziser

There is no compulsory license for sync rights.

Incidentally, I think that poster is correct on the rate because the statutory rate for the compulsory license should have gone up last January above the then 9.1 cents...

You really need to follow the website back to its roots and read the reality!

For the first one, "apv dot org", read the following on their home page:

"1. Commercial music (from any source)

Rights to use the composition/song need to be cleared with the music publisher.
Rights to use the Recording need to be cleared WITH THE RECORD COMPANY.

Clearing rights can be a painful process as rights may be retained by composers/artists or many other interested parties."

What "apv" and "PPL" license are 7000 selections from their own library of music. These are NOT hits or top 40 or anything. They are a glorified variation of royalty free music, but for a fee.

For the second agency, "prsformusic": a school orchestra or church choir or church orchestra or any other band or orchestra can license the sheet music to do their OWN PERFORMANCE and have it recorded to DVD or CD for distribution or sale.

NEITHER ONE OF THESE IS A LICENSE FOR WEBSITE USE OR SLIDESHOW OR VIDEO SYNCHRONIZATION of existing music from a recording label!

A very large group of world wide professional wedding photographers tried to do this a couple years ago with the music recording industry. It was just about a done deal until one of the artists represented by just one of the recording companies said "h3ll no, I don't want MY music associated with a wedding slide show." End of negotiations, end of story.

I have brought this subject up on pro wedding forums before. Some pro photographers are running illegally. Some actually have gotten permission from a particular performer or group to use well-know music on their slideshows. It is usually through a personal connection to a particular performer or group. Not a business decision through the front office.

In my case I use mostly royalty free music. However, I have gained some limited rights, i.e one time use or for one year, for some namebrand well-known wedding tunes by writing the performer directly and asking permission.

Funny -- I've heard the same justification from people who steal photography.

The thing I think is most pathetic -- everybody wants to protect their own stuff -- but they can easily rationalize stealing other people's stuff.

For me, this discussion has been a perfect lesson in why the world is so screwed up.

Nope -- I'm not going there. It's not my job to play little policeman.

I had hoped for a more rational response -- but everywhere I've asked this question of other photographers, the responses range from "bah -- I have more important stuff to worry about," to "ah -- those musicians and their recording companies are just too greedy, so it's ok to steal from them."

Pretty disappointing, to hear this from fellow members of a profession that depends on income from artistic expression, just like musicians.

Time for me to move on to other things -- but I have to say, I'm disappointed.