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Posted by PTravel on 12/09/06 19:24
"Colin B" <Colin B@cb.org> wrote in message news:457b00c3$1@clear.net.nz...
> Well, we are indeed fortunate to have a copyright expert here to advise us
> all. For both the examples I gave above, can you please tell me whether I
> have breached copyright holders' rights if I upload both these videos to
> Youtube without seeking any approvals and could thus be sued by the rights
> owners? This is a serious question based on real facts, I'm not trying to
> fool anyone, believe me!
We do have a copyright expert here, though I don't give legal advice to
non-clients. I will, however, discuss hypotheticals, such as the two you've
provided here.
With respect to the music students playing Mozart, music composed by Mozart
is, of course, well beyond the term of coyright and is therefore in the
public domain. However, new arrangements of public domain music can be
protected by copyright. If the piece the students was playing was a public
domain arrangement, no copyright issues are raised by your hypothetical.
With respect to permission from the students, if they were playing in
public, e.g. on the street or in a park bandshell, they would have no
expectation of privacy, and no permission is needed PROVIDED that they are
not shown in a way that would constitute false-light defamation AND you're
not making commercial use of the video -- different jurisdictions have
different rules with respect to commercial appropriation of likeness. If
they were not in public, i.e. somewhere where they had an expectation of
privacy, you'd probably need to get their permission.
With respect to the video of your daughter, the music playing in the
background would come within incidental reproduction doctrine. This is,
unfortunately, an unsettled area of law -- few courts have ruled on it, and
the rulings have been contradictory. Though the law is far from clear, it
is probable (meaning more likely than not), that you will not infringe IF
the music selection isn't used in its entirety and isn't used as a
soundtrack for the clip. However, different jurisdictions have interpretted
incidental reproduction differently, and the safest course is to not use
protected expression without permission, even if incidental to a video
recording.
The problem, as I see it, is that, with the development of new technology
over the last decade or two, it has become very easy to copy and distribute
protected intellectual property and, as a result, casual infringement has
become common. The fact that it's easy to do, or that it isn't deliberate,
is not now, nor has ever been a defense to infringement liability.
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