Music copyright

[hmiproductions]

Hello,

I have started a DVD slideshow business where I take pictures and put them to music. I have been searching for a clear answer on copyright laws. The question that I found an answer to was, "What must a person do to get copyright permission to put music on a DVD?" I got an answer from a company that specializes in contacting the appropriate people to get the copyright permission from. After a lengthy explaination, I was told that I had an option of giving the customer the liability for the music copyright. I asked what that might entail, but they were unable to give me legal advice on a legal document to use releasing my company from liability. Could anyone help me out with this question, or will I need to contact a Music Lawyer?

Thank you in advance for any attention that is given to this query.

Sincerely,

HMI PRODUCTIONS

 

[divgradcurl]

"What must a person do to get copyright permission to put music on a DVD?"

You can go through that service, or do it yourself. You will need two licenses for each piece of music you want to use -- one for the "musical work" (the song), and one for the "sound recording" (the recorded version of that song). You can obtain a license for the musical work from the Harry Fox Agency (a clearinghouse) -- the musical works licenses are compulsory, which means they have to sell you one if you ask, and the prices are fixed.

To obtain a license for a sound recording, you will need to approach the individual record companies and negotiate for a license. These licenses are NOT compulsory, and the record company is free to sell you one or not, and may charge whatever they want for the license if they do decide to sell you one.

After a lengthy explaination, I was told that I had an option of giving the customer the liability for the music copyright.

That is incorrect information. You may ask the customers to indemnify you for any infringement liability -- in other words, ask the customers to bear the risk of paying for your legal fees and any settlement costs or judgements obtained against you -- but you cannot shift liability for copyright infringement. You are the one doing the copying and/or reproduction of the copyrighted works, so you would be liable for the infringement. A copyright holder could choose to sue you for direct infringement and sue the customer for vicarious or contributory liability, but there is no contractual way to shift the liability to another. All you can do is shift the burden of paying for the infringement -- you will still be the one who gets sued, the copyright holder can collect from you, and then it would be up to you to go after the customer to collect on your indemnification (although, mnore likely, your lawyer would implead the customer into the infringment case, but that doesn't change the liability issues).

In other words, all you can do is ask the customers to insure you in case you get sued for copyright infringement.

This is the same thing as if a customer asked you to pick up a car for them in some other location and drive it home for them. You don't have a driver's license, so you ask them to sign something that says they will accept the ticket if you get stopped for driving without a license. You can't do this -- the cops are not going to issue the license to the car owner, because YOU are the one breaking the law of driving without a license. Now, you could have had the customer sign a contract that says they would pay your fine and any court costs -- nothing really wrong with that -- but you cannot shift the LIABILITY for the act. This isn't an exact analogy, but should be close enough to be illustrative.

Actually, there may be one way to shift actual liability -- you could become an EMPLOYEE of the "customer." As an employee, you would likely be shielded from direct liability if you were acting within the scope of your employment. But you would have to be a real employee to do this, so it's probably not a reasonble way to achieve this goal.

By all means, go and see a lawyer to try and figure out how to minimize your liability or draft an indemnity contract for your customers, but know going in that you will not be able to easily shift liability to your customers.