I have a new page here on New Music Strategies, which outlines some of the ways I can help musicians, and independent music businesses. Naturally, I’ve called it my Help page.
I was trying to think of a suitable picture to put at the top of that page, and I had a song stuck in my head. So I went to YouTube, found the video clip and embedded that straight in there.
But then I started to worry. Here I was using a song that was still under copyright on a page that is, for all intents and purposes, entirely commercial. In a way, I’m using the song a bit like a jingle. That can’t be right, can it?
Easier to ask forgiveness than permission
I gave this a good deal of thought, and I asked some very naive questions of a bunch of real experts.
Obviously, an embedded YouTube video has been uploaded by someone who has agreed to the terms and conditions of the site. They have undertaken that they have permission to do so.
The subsequent use of that clip – whether on a personal blog or a page specifically generated to drum up a bit of business (as mine clearly is), is apparently irrelevant to the story.
All the same, I’ve endeavoured to ask permission. And it’s not easy. The song in question is not ‘Help’ by the Beatles, as above. That’s just there to make a point (and I wonder how that got past EMI’s Digital Prevention Department).
The song I’m using is ‘I Can Help‘ by Billy Swan.
And it’s not even the original released recording, but a shorter, live acoustic version from a cable TV show in the late 1990s. Seemingly the video has been uploaded by that show’s production team.
So through the show’s website, I tracked down an email address, and sent a message asking if there was a way to get in touch with the composer and performers to secure their permission to use the song.
I’ve not heard anything back yet – and I am assured by people whose opinions I have no reason to doubt that it’s more than fine simply to go ahead – but of course, if the producers have or know of any reason not to use the song in that way, I’d be delighted to remove the link and offer my apologies.
There’s a serious point
However, this only serves to demonstrate the lack of clarity and the failure of contemporary rules to reflect, enable or inform contemporary practice.
Making the video available for embedding on YouTube theoretically gives me permission to go ahead and put that video wherever I like. And the onus is not, in this instance, on me to check to see whether it’s okay to do that.
And yet we live in a world where sites can be shut down, fined millions and its owners thrown in jail merely for providing links to places where other people have made content available. Apart from the fact that this seems entirely wrong and nonsensical – it’s just generally confusing.
And as a result, people are either reluctant to do anything at all with music – or they are radicalised into an active anti-copyright position and make a point of breaking even the rules they do understand.
And that’s a shame – because it means that none of this will ever really work properly for anyone (other than some Scandinavian lawyers). Especially if the rules on all of this stuff remain baffling, anti-consumer and geared towards prevention and lockdown rather than openness and usability.
I’ve said it before and I’ll say it again. Copyright is important – but it’s broken. It won’t be fixed until we throw away the old rules and start again from first principles. What, exactly, are we trying to achieve here and for whom?
There’s a less serious point
If you feel you’re a bit stuck in your music career, need a bit of advice with your music business, or need some help – and you think I may be able to assist – then take a look and see if my help page is of any use to you.
Look forward to hearing from you.
Anyone here actually know Billy Swan? It’d be great to get his take on this – and his clear opinion as to whether he’s cool with me using the song in this way – regardless of what the rules say one way or another.
That’s what matters more to me, to be honest.
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15 Comments
How about finding an appropriate image on one of the many stock image sites and licensing its use, thereby setting a good example?
Interesting points about the YouTube Video.
Firstly, I too agree that copyright is broken, however, this is my opinion based on the current outdated copyright laws and not my opinion based on how I think it should work :)
I believe you are perfectly within your rights to embed the video as YouTube encourages you to do it anyway. Also, if it is allowed to remain on YouTube you can assume that the mighty Google’s legal team are happy for it to exist on their servers.
As you have no way of second guessing the legal stance of YouTube on this particular video or the view of the copyright owner(s), I would suggest that you are justified in your action of embedding the video as you have trusted the YouTube platform. If a copyright infringement report does occur the video will be removed from YouTube and will also disappear from your page. I think this covers you on legal grounds.
I don’t think you are using it as a Jingle, you have not added anything to it and you are not saying it represents your brand, you are just displaying a related piece of content via a legal sharing platform.
Additionally, as far as I am aware YouTube still pays PRO’s a blanket license for the performance of any music. On this basis (in theory, although not in reality) the composer will get a tiny slice of that blanket license.
For these reasons, I think you should be fine to use it, however, if you do manage to alert Billy Swan of its YouTube appearance and he turns out to be against it, I guess you could remove it from your own site for moral reasons. As I said before, at this stage you have no way of knowing and would be guessing at best.
I must add a disclaimer and state I am not a lawyer but I am experienced in music licensing issues. Just my opinion for you and your readers :)
Regards
Lee Pritchard
Media Music Now
OK, here’s another idea. How about YOU take a picture or video YOURSELF (you know…be creative), or pay for stock photography, or use another source of actual (legal) free content. Then load it on YOUR website that promotes YOUR business (which, according to the “Help Page” premise is a paid consulting service that YOU are promoting). I mean, come on man, this whole website is a promotional tool for YOU and YOUR books or consulting or whatever. And there is ABSOLUTELY nothing wrong with that at all. Just don’t use the work of other people in an attempt to bring YOU money! I could understand it if you were a kid and your website is about your favorite band or skateboarding or whatever and you want to use that cool song or video to show your friends how cool you are and make your site interesting. But let’s face it, YOUR site is a commercial enterprise. And to try and walk the line like this is intellectually dishonest.
This is really interesting.
I write quite a lot, and what I write I give away for free. This is one of the foundations of New Music Strategies. There’s a picture on almost every post – either a snap I’ve taken myself; an image I’ve used under a CC licence via Flickr; or a paid stock photograph.
But when I use a different kind of creative work (a video containing a piece of music in this case), not only is there no clear way of doing so in a really obviously legitimate way, but the feedback is that I shouldn’t even bother.
My point is that I want to be able to pose the question – not to be told (or made to feel) that I shouldn’t be so rude as to ask.
I think this might be the bit that’s most broken: the complete obscuritanism over what’s fair on one hand, and how to go about legitimately seeking permission on the other.
And that problem is at its worst in the world of music.
Using a stock image is ‘setting a good example’ (to other bloggers, I assume) – but using a piece of music is ‘intellectually dishonest’. Sorry – I’m not buying it.
I want a better answer than ‘don’t try’… and ‘you should be okay’ doesn’t cut it either.
You closing sentence
“It’d be great to get his (Billy Swan’s) take on this – and his clear opinion as to whether he’s cool with me using the song in this way – regardless of what the rules say one way or another. That’s what matters more to me, to be honest.”
raises an interesting question.
If your 5 year copyright proposal were adopted, and Billy Swan had let his copyright lapse into the Public Domain, would you continue to use his work if he expressed a wish that you didn’t?
I’m not meaning to be obtuse. There seems to a be a tension between the artists feelings about the use of their work being the most important consideration for you, and, the removal of an artists feelings about the use of their work, should their rights in that work have lapsed into the PD, for whatever reason.
Is there a place for ethical , philosophical or aesthetic elements to rights assertion? Or is copyright in the new era to be constructed solely as a means to manage commercial exploitation of works?
In general practice the copyright holder has the right to grant or remove permission to third parties with regard to cover versions of their work. My personal feeling is that this is excessive, given that the copyright holders benefit from any exploitation of their copryrighted works. However, my personal feelings are in no way an appropriate measure for good practice in creative commerce.
The Beastie Boys sought to prevent Skrewdriver from covering ‘Fight For Your Right To Party” and converting it to ‘Fight For Your White Party’. They found the use of their material as a source for Right Wing political rhetoric distasteful, and, had all the power of the archaic copyright laws and music business to wield and yet failed to prevent the Skrewdriver version from being commercially released.
Which brings me back to the main point of your post, the dilemma faced by both the publisher and creator of any work which is published. Primarily, how do creator and publisher agree terms for publication and, secondly how does the context of the published use impact on the creator.
In conventional usage terms your use of I Can Help falls somewhere between review and jingle, your site is commercial, although the defining spirit of your work is culturally ethical. Perhaps, just as Creative Commons asserts the rights of the copyright owner along new lines , then there should be a relflexive expression on behalf of publishers. Effectively, I use CC/copyright works appropriately and, consequently, I am a Culturally Ethical publisher.
Wanting to utlise media content to enhance your primarily text based output is an acceptable want. Wishing to respect rights holders and to use material legitimately is ethical. That there is a need for a provision of publishable AV material to publishers in new media is clear and that debate of this type might catalyse such a provision is a hope that makes this a positive cultural exchange.
Aside from that though, it seems that you’re asking a rhetorical question which technology and contemporary information use are rendering ‘the law’ inadequate to answer.
Andrew
“And yet we live in a world where sites can be shut down, fined millions and its owners thrown in jail merely for providing links to places where other people have made content available”
Assume this refers to TPB verdict and wonder if there isn’t an important distinction to be made between sites that provide links to content that is there for download versus content that is streamed (though YT vids can be downloaded with the right software).
Also there appears to be a distinction here in that YT – as you note – appears to have permission from the copyright holder to host and stream their performance as per their TOS when a video is uploaded. Tracker sites (such as TPB for example) are linking to some material for which the same cannot be said to be true – that is users haven’t agreed that they own the rights to the material they are uploading (maybe there’s a new trick there for tracker sites?).
With particular reference to music there are a number of services that allow for legal embedded streaming of ‘approved’ copyrighted music including the recently beta-ised Soundcloud which looks to be the type of youtube-for-music app long missing from the online landscape.
As your post points out however the issue isn’t really whether or not you can legally embed video from YouTube – my understanding is that there is no legal ambiguity here at all – but that a lack of understanding of what copy-rights are for and the state of copyright legislation in many parts of the world results in lockdown, overly-cautious inaction or flagrant disregard on the part of users / content creators.
Ok – this is the state of play and has been for some time. Yes copyright law probably needs an overhaul to take into account the myriad ways content is being used that weren’t around 10 years ago.
However it’s not as simple as scrapping everything and going back to first principles and current copyright legislation has implications well beyond it’s application to music.
The important debates about copyright really aren’t the ones about YouTube videos and music but pharmaceuticals and other technologies that can be denied some of the world’s poorest countries who can’t afford to license the technology and may be open to punitive measures under trade agreements if they are found to be engaged in ‘piracy’.
So – what are you proposing? ;-)
@Dave:
This distinction is pretty meaningless if you look at what’s actually happening. In order to watch or listen to a “stream” online, your computer needs to download it. It just saves the file to a temporary files directly, so it ends up getting deleted automatically later. The only real difference between download and stream is whether you end up keeping the file, or saving it to a non-temporary files directory.
Plus, I would think that storing a stream would be akin to using a VCR to record a cable broadcast — widely recognized as fair use.
Well, even though there was no legal ambiguity in AOL’s purchase of Bebo, there were plenty of people claiming that Bebo was making money unfairly “off the backs of artists…” Though I strongly disagree, I wouldn’t be surprised if some artists would try to make a similar moral argument about embedding a video for commercial use, even if there’s no real legal ambiguity.
Copyright doesn’t apply to pharmaceuticals… I think you’re confusing copyright and patents?
sorry yes – patent law, meant IP not copyright
and VCR analogy is apt.
and I’m an idiot ;-)
I agree that music copyright needs to be demystified and made digestible for the general public (if we are ever to develop any kind of EZ License for varying types of use – a cross between Creative Commons and stock photo libraries seems like an excellent starting point)… which is, I think, the main point of your article.
I’m confused by the fact that on one hand – your point is “how do I do this legally?” and you illustrate how ridiculously difficult it can be for a (relative) novice to license music*, yet on the other you are seemingly defending the position of a torrent tracker who profits from providing easy access to illegal downloads of music, film, computer games and other copyrighted material.
I find it difficult to believe that anyone who understands that musicians are entitled to make money off their work (at least until rent, food, and recording studios are also free) if they choose to do so, would defend TPB or be a drama queen about the horrible fate suffered by a few profiteers, “merely for providing links to places where other people have made content available”. I think you left a key word out there – “ILLEGALLY made content available” would be more of the truth.
Definition of the word “pirate” anyone? How about just a few synonyms: “rob” and “plunder”. Why do you think they chose The Pirate Bay for a name?
Thanks for the thought-provoking article.
S.
* I’m sure if you contact your local copyright society or the publishers of “I Can Help” they will be happy to negotiate a license fee with you.
No ideas to offer about the ideal solution to these complicated copyright issues in the digital age I’m afraid, but the video is BTW a nice one in the goolies for people who say things like “The Beatles? – they were crap they were..”
The laws regarding physical property are taught to small children. Normal adults are expected to instinctively understand them; adults who do not understand them are regarded as “abnormal” in some way.
The laws regarding intellectual property cannot be taught to small children. They cannot be understood by normal adults without a great deal of specialized training – i.e., Lawyers. They are also contradicted by the experience of everyday life in the 21st century, where copying machines have become a key element in our lives.
Good luck! :-)
Not about embedding video – but on a related note, a bedroom developer was named in a copyright lawsuit recently just because he used an API.
http://www.techcrunch.com/2009/02/25/music-labels-reach-a-new-low-sue-developer-for-using-seeqpod-api/
funny.
i dated billy’s daughter planet about 13 years ago.
my brother dated sierra.
we used to sing “if your sister needs a daughter…i can help”:D
billy had a guest house by the pool where he would retreat every afternoon and scratch out song ideas. “i can help” bought that house. there were a handful of houses in that neighborhood that were paid for by song. maybe these days songs as breadwinners are becoming obsolete, but the internet is essentially a hi-fi interactive television or telephone and if you were producing a commercial or telemarketing campaign for your business in 1981, you wouldn’t for a moment consider using something that hadn’t gotten clearance beforehand. right?
these are unusual innovations were coping with aren’t they?
i really value your insight andrew, and i look forward to hearing what comes of this.
planet is coming to my studio next week to cut a track for billy’s birthday. a beach boys song. she probably won’t be asking brian’s permission!
music isn’t some ephemeral thing. we are!
regards,
aaron