If you've produced a few tribute, legacy, or memorial videos by now, you know what your clients want: lots of pictures and videos accompanied by their favorite music. Music is the soundtrack of their lives, and they want to hear their soundtrack to match the various periods in their lives, be it the Beatles, Herbie Hancock, or Ella Fitzgerald.
In the privacy of your own home, or that of you're client, that's not a big deal. But if you're making real money for your services, working for a major corporation, showing the Tribute at Carnegie Hall, or-- putting it online, there will be the possibility of major problems. This may wake up the copyright "police", and Dad's Favorite 50's tune may have to find it's way to the cut-out pile.
What I want to deal with here is the online use of copyrighted music, which dominates many tribute videos.
The Dirty Little Secret of the Home Market Producer
It's easy to find public domain footage to help start off a period section of a tribute or wedding or retirement video, but almost impossible to set the tone for an era with copyright-free period music. Over the years, Congress has extended copyright protections to the point that those protections will outlive the lives of authors and performers. Radio stations pay an agreed on statutory rate for using pop music, even as the very use promotes that same musc. TV uses pop songs, but they sometimes disappear when the DVD or streaming versions are released, simply because home market rates are higher than broadcast rates.
When my brother Dennis and I started our Tribute business in the nineties, we involved a composer to build us a suite a music we could use for the tributes we produced. We knew about copyright, and wanted to set a higher standard with our emotional orchestral music to set scenes, as opposed to "Small Town" by Mellencamp, "Jersey Girl" by Springsteen, or "These are Days" by 10,000 Maniacs (notwithstanding the fact that these are all excellent choices).
Well, that didn't last long. If a client producing a 50th birthday video for Uncle Don wanted to use Don's favorite Sinatra tune, well, dammit, that was the client's choice, and the client is always right-- if you want to get paid.
In the short run, it was a risk we had to take-- after all the audience for these tribute videos may be only 5, 10, or even just 100 people. But then this online thing came along, and tribute and wedding video producers were eager to put their work online, both for promotional reasons and as a nice add-on for their clients. After all, 90-year-old Aunt Judy in Seattle might not be able to make it to the engagement party in Maine.
Enter YouTube, Exit the Wild West
In the early days of the Internet, on-line video was difficult. It involved proprietary compression schemes to get around the slow bandwidth rates. Chances are the producer would compress the video, post it, and require the viewer to download the right codec (like Flash or Windows Media, RealMedia or Quicktime) to play it backed. Kludgy, but it worked, if you could put up with video no larger than an eighth of a screen.
Then along came YouTube. YouTube did not arrive fully grown. It had its limitations, and was happy if you were uploadingm no matter what the content. But as YouTube grew, things slowly changed, and when it was purchased by Google, well look out. The quality and playback capability slowly improved, and the gold rush was on.
YouTube had competitors, with the two remaining today for consumers being DailyMotion (free) and Vimeo (subscription for the producer). We'll leave Twitch out of this for the moment).
By the md-2000's, all of these platforms were aware of copyright and warned uploaders about the legalities of same. But in the last decade, all of them had installed sophisticated algorithms to detect primarily audio copyright infringement, and agreements with various large corporate owners to automatically stake claims to copyright upon upload. Yes, that fast.
The Current State of the WatchDoggery
These sample videos include copywritten music. In the case of the business videos, all music is paid for because it was carefully selected "Library Music" for which we paid for the right to use in the video. In the case of the tributes, it was a mux of library music and pop tunes. Recently, after seeing how YouTube reacted to this music, I decided to look ito DailyMotion's and Vimeo's reaction as well. Here are the results:
YouTube has the most thorough tools to seek out copyright issues, but is also somewhat lenient (at a potential cost to you).
YouTube's arrangement with copyright holders allows the owner of the copyright to determine the penalty for using their music. In many cases, they will allow it, as long as they can monetize your video instead of you. (Monetization-- getting a cut of the ad revenue generated by your video only kicks in when you have 1000 subscribers.) So the penalty is that your video cannot be monetized and is instead monetized by the copyright holder or holders. HOWEVER, some copyright holders with a more stringent view will block your video from being shown in the markets for which it has the copyright (in most cases, the United States). This cuts out your primary viewers so you might as well take the video down. This happened for me in a Tribute Video for a client in which a romantic section used Clapton's "Wonderful Tonight". It was the couple's favorite song.
YouTube gives you the option of automatically substituting the offending song with music you choose from their free library. This is good, if generic, music and will allow your video to be shown. It's a decision you'll have to make: Does the meaing of the section disappear without the copyrighted material, or will the pictures running over the new music suffice?
Clearly Daily Motion is an "All or Nothing at All" situation. If they find ANYTHING offending, the simply kill the video. They don't let you know what songs have been flagged, and have no means of automatic substitution. It's up to you to make the substitutions in your video editor and try again.
Despite clear copyright warnings, Vimeo, which charges $12 / month for its service, did not automatically flag videos which YouTube and DailyMotion bounced. Whether they simply expect you to act in good faith, or whether they do manual reviews or rely on viewers to report infringement is unknown, at least to me. The above video, for which I had to use substitutions in order to make it available on YouTube, is residing on Vimeo in its original form.
I have read (but not tested) that live streams are far more lenient on copyright issues, but once you post those live streams as regular videos, they do get flagged.
Facebook does have a stringent copyright policy but is somewhat lazy in the way it enforces it. When I attempted to upload one of the above videos, it called out a single instance of song rejection, told me to make a substitution manually, and resubmit. I did, and then it found another single instance of an offending song. This went on one-by-one until I realized it was never going to end, and didn't end up posting the video.
This article does attempt to offer real legal advice. It is only anecdotal in nature and your mileage may vary. It does not condone or recommend copyright infringement in any form.