Use Unlicensed Music in Wedding Films at Your Peril
by Vincent Allen
Quantum leaps have been made in both the quality and popularity of wedding films over the past 10 years. The advances are a result of technology improvements in post-production editing systems and the introduction of low profile cameras that rival the production quality of movie sets. Most recently, the availability of relatively low cost DSLR cameras has added a cinematic element to event film productions that previously was not available.
Event filmmakers have begun creating works of art that capture the emotions of the wedding day. So it is no surprise that wedding films are often set to music selected to create the desired mood. Historically, event filmmakers have not given much thought to obtaining permission to use a popular song in a wedding film, and some have even operated under the erroneous belief that purchasing the song on a CD or iTunes will avoid a copyright violation. Event filmmakers have now begun paying more attention to copyright issues as rights holders have stepped up enforcement activity directed to unlicensed use of music on the internet.
One notable example is the film of Tony Romo’s wedding that was streamed on the Internet by Austin event filmmaker Joe Simon in 2011. Although the film was only up for one day before it was taken down, that was long enough for a record label to notice that Simon had used a Coldplay song without a license. The record label sent Simon a cease and desist letter and demanded $150,000 for the unlicensed use of the song in violation of copyright law. Simon ultimately settled the claim for an undisclosed five figure sum.
The attention given to Simon’s film caused event filmmaker internet forums to erupt with discussions about the routine use of popular songs without a license. Many that had previously used popular songs in wedding videos without permission have stopped the practice, or at least are no longer streaming the wedding films on the Internet. Some are still using unlicensed music, and in some cases, admitting to the knowing improper use in event filmmaker forums.
Many event filmmakers complain about the inability to obtain a license to popular music for a reasonable fee. This has been a problem as the cost and time to contact a copyright owner to obtain a one-time license for a song is not feasible for a wedding film or other film intended primarily for personal use. However, the inability to obtain a license does not justify the willful infringement of the copyright in a song.
The vacuum in the market that has been created by the growth of the event filmmaking industry has, however, resulted in the birth of niche licensing companies that have negotiated deals with copyright owners that allow the licensing company to offer synch and streaming licenses for a substantial inventory of songs. For example, The Music Bed, located in Fort Worth, has numerous songs available at fees ranging between $49 and $399 for uses ranging from wedding films to corporate promotional videos. Song Freedom also offers a similar service at a cost of $34.99 per song for personal event video and photography. The licenses provided allow streaming in perpetuity and a limited number of DVDs or Blu-Rays. However, it is important to read the fine print of the license granted to be sure that the desired uses are permitted under the license.
Elizabeth Allen of Copper Penny Films in McKinney is an event filmmaker who has elected to use only licensed songs in her films. She notes, “While the number of popular songs offered by companies such as The Music Bed and Song Freedom is growing, I will often spend a significant amount of time listening to less popular music to find a song that fits the film. Although a bride may request a mainstream song, that song is not always the best fit, and I have found that the use of an indie song can help tell the story better than popular music that may take attention away from the film. But I still must explain to the bride why I can’t use the song she requested when other filmmakers are willing to risk using popular music without permission.”
In conclusion, the use of unlicensed music is not worth the risk of statutory damages of up to $150,000 and up to five years imprisonment. License companies will continue to fill their inventories with songs that can be licensed for a nominal fee. Event filmmakers should take advantage of the songs offered to avoid the risk of copyright infringement and to encourage the licensing companies to obtain more songs in their inventories.
Vincent Allen is a past chair of the Publications Committee and is a partner at Carstens & Cahoon, LLP where he focuses his practice on intellectual property law. He can be reached at email@example.com.