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Prog
Advanced Contributer
United Kingdom
21166 Posts |
 Posted - 05/05/2012 : 10:12:25
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| If, hypothetically, a tribute act were to record a song by a band (let's say R.E.M. for argument's sake) but with different lyrics, and this song was to potentially be used by a business for advertising purposes, what, if any, would be the possible legal ramifications? |
Funktion Junction, coming soon to a holiday park near you - http://www.funktionjunctionband.com |
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drummerant
Advanced Contributer
United Kingdom
1348 Posts |
Posted - 05/05/2012 : 10:32:08
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| hmm, I would have thought so because of the song? Change the pitch of it? I think they done that with a transplants song for Head and Shoulders or some shampoo advert |
www.fvfdrums.co.uk |
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Yard
Advanced Contributer
Uzbekistan
5231 Posts |
Posted - 05/05/2012 : 10:34:28
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I would seek proper advice before you do anything!
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Shut it and whack the poxy things!
www.vintagedrumyard.co.uk
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OriginalAnimal
Advanced Contributer
United Kingdom
19298 Posts |
Posted - 05/05/2012 : 10:36:26
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| I'm with Yard! |
I have no time to practice, I'm gigging. Leicester Drum Sniffers Anonymous. #17 of the 582 & 17 0f the 798 World Record Holders.
Jobeky, 2Box Drumit 5, Premier, Highwood/DM drums Paul Brook Snare, Matt Nolan cymbals, Silverstone Drum (seats) Thrones. Los Cabos drumsticks
Re Cycling drums is the future. |
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Prog
Advanced Contributer
United Kingdom
21166 Posts |
Posted - 05/05/2012 : 10:39:17
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| Thanks. We will be doing so but I'm aware that there are some people on here who know copyright law inside out, upside down and back to front. |
Funktion Junction, coming soon to a holiday park near you - http://www.funktionjunctionband.com |
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empress ballroom
Advanced Contributer
984 Posts |
Posted - 05/05/2012 : 11:05:38
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| Google My Sweet Lord vs The Chiffons |
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New Boy
Advanced Contributer
United Kingdom
5147 Posts |
Posted - 05/05/2012 : 11:24:15
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| Dibs is a former Solicitor so may be able to assist. It's a specialist topic on its own though I'd wager. |
Free the Tempus one - The missing thread lives on!
(Carrera, Highwood, Amedia,Paiste).
http://www.saraban.co.uk/ |
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dibs
Advanced Contributer
United Kingdom
855 Posts |
Posted - 05/05/2012 : 11:48:43
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| It is indeed a very specialised topic. However, in broad terms I can advise that if the artist in question is of US domicile then their works would be protected by US copyright law. In general, where a copyrighted work is sampled, or used in a mash up situation the permission of the copyright owner is required to the proposed use of their work. There is an exemption wherein permission would not be required and this is called "fair use". The test to satisfy "fair use" is fairly complex and whilst guidance is offered in several supreme court decisions it is a question which tends to be answered on the facts of each case...usually in the context of legal proceedings. In general it is much more difficult to establish "fair use" where the new material is being used commercially. In the context of what you have posted I should imagine you will need to get the permission of the original copyright owner (and pay royalties of course). |
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Prog
Advanced Contributer
United Kingdom
21166 Posts |
Posted - 05/05/2012 : 12:58:42
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Thanks, dibs. That's pretty much what I'd assumed would be the case.
Would it be the band or the company that uses the song who would be in trouble? |
Funktion Junction, coming soon to a holiday park near you - http://www.funktionjunctionband.com |
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moosetication
Advanced Contributer
United Kingdom
12061 Posts |
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dibs
Advanced Contributer
United Kingdom
855 Posts |
Posted - 05/05/2012 : 13:27:28
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quote:
Originally posted by moosetication
Both, potentially. One for recording it for commercial use, one for using it.
This. But the company using would pass liability on to the band (by way of third party proceedings if litigation was commenced against them) as they will have a defence that they assumed you had the proper consents in place. In contracting with you for your services it will be at least an implied term (if not made explicit in the contract) that you had the appropriate rights to the music being "sold". |
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Prog
Advanced Contributer
United Kingdom
21166 Posts |
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Hugs
Advanced Contributer
United Kingdom
1276 Posts |
Posted - 05/05/2012 : 16:46:23
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quote:
Originally posted by dibs
It is indeed a very specialised topic. However, in broad terms I can advise that if the artist in question is of US domicile then their works would be protected by US copyright law.
That's not strictly true, if the infringement is in the UK then it will be UK copyright law that applies. Under the Bern convention, the UK recognizes copyright in works created by citizens of other signatories, which includes the US, on the same terms as for UK citizens.
As said, the whole copyright situation is complex and professional advice should be sort. Most songs are protected by more than one copyright. There will be copyright in the music, a separate copyright in the lyrics and possibly a further copyright in any particular arrangement. When a song is recorded then a further copyright can be generated.
In short, if you use REM's music (and arrangement) then you will most likely infringe copyright. The composer may also have moral rights which enables them to prevent derogatory use of the music.
To infringe copyright there must be a "significant taking", it does not have to be an exact copy so simply changing the pitch is unlikely to avoid infringement.
Hope this helps but please do not rely on these comments.
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drummerant
Advanced Contributer
United Kingdom
1348 Posts |
Posted - 05/05/2012 : 17:12:25
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| Can you not just state that the music is not your own? Like people do on youtube? |
www.fvfdrums.co.uk |
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dibs
Advanced Contributer
United Kingdom
855 Posts |
Posted - 05/05/2012 : 18:11:14
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quote:
Originally posted by Hugs
quote:
Originally posted by dibs
It is indeed a very specialised topic. However, in broad terms I can advise that if the artist in question is of US domicile then their works would be protected by US copyright law.
That's not strictly true, if the infringement is in the UK then it will be UK copyright law that applies. Under the Bern convention, the UK recognizes copyright in works created by citizens of other signatories, which includes the US, on the same terms as for UK citizens.
As said, the whole copyright situation is complex and professional advice should be sort. Most songs are protected by more than one copyright. There will be copyright in the music, a separate copyright in the lyrics and possibly a further copyright in any particular arrangement. When a song is recorded then a further copyright can be generated.
In short, if you use REM's music (and arrangement) then you will most likely infringe copyright. The composer may also have moral rights which enables them to prevent derogatory use of the music.
To infringe copyright there must be a "significant taking", it does not have to be an exact copy so simply changing the pitch is unlikely to avoid infringement.
Hope this helps but please do not rely on these comments.
I'd dispute your comment regarding conflict of laws, though don't wish to make a federal case out of it since it's academic, but since the 1994 case of Subafilms, Ltd. v. MGM-Pathe Communications Co several courts have declined to follow the Ninth Circuit’s decision, and have increasingly led to US courts allowing the extraterritorial application of domestic copyright law.
Another case of one set of rules for America and another for the rest of the world. |
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Hugs
Advanced Contributer
United Kingdom
1276 Posts |
Posted - 05/05/2012 : 20:10:38
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quote:
Originally posted by dibs
quote:
Originally posted by Hugs
quote:
Originally posted by dibs
It is indeed a very specialised topic. However, in broad terms I can advise that if the artist in question is of US domicile then their works would be protected by US copyright law.
That's not strictly true, if the infringement is in the UK then it will be UK copyright law that applies. Under the Bern convention, the UK recognizes copyright in works created by citizens of other signatories, which includes the US, on the same terms as for UK citizens.
As said, the whole copyright situation is complex and professional advice should be sort. Most songs are protected by more than one copyright. There will be copyright in the music, a separate copyright in the lyrics and possibly a further copyright in any particular arrangement. When a song is recorded then a further copyright can be generated.
In short, if you use REM's music (and arrangement) then you will most likely infringe copyright. The composer may also have moral rights which enables them to prevent derogatory use of the music.
To infringe copyright there must be a "significant taking", it does not have to be an exact copy so simply changing the pitch is unlikely to avoid infringement.
Hope this helps but please do not rely on these comments.
I'd dispute your comment regarding conflict of laws, though don't wish to make a federal case out of it since it's academic, but since the 1994 case of Subafilms, Ltd. v. MGM-Pathe Communications Co several courts have declined to follow the Ninth Circuit’s decision, and have increasingly led to US courts allowing the extraterritorial application of domestic copyright law.
Another case of one set of rules for America and another for the rest of the world.
I don't claim to be an expert in this area but the ability to claim jurisdiction in the US is far from clear, assuming that the proposed acts were to take place in the UK. It seems to me that it is much more likely that UK copyright law would be enforced if it came to it. Of course if the hypothetical work ends up on the internet then all bets are off.
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moosetication
Advanced Contributer
United Kingdom
12061 Posts |
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rollingthunder
Advanced Contributer
United Kingdom
1842 Posts |
Posted - 06/05/2012 : 08:14:23
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You need to take specialist legal advice. We recorded a Ray Davies song for a TV series and the paperwork when completed was the size of a phone book. It was further complicated by the possibility that the series would be shown worldwide, which it subsequently was. Its a minefield and must be done properly.
Be very careful. Big bands/record companies spend a lot of money on their legal departments and they are ruthless when it comes to protecting their clients interests and will only deal with other legal bodies, not individuals like ourselves.
And be prepared to wait. It can take a long time.
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Dave The Drummer
Advanced Contributer
United Kingdom
9111 Posts |
Posted - 14/05/2012 : 20:58:08
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quote:
Originally posted by drummerant
Can you not just state that the music is not your own? Like people do on youtube?
cf. Moose.
The YouTube people aren't selling it via YouTube.
They get away with it using the fair use defence i.e. they're not making any money off it.
If they start to sell it via their own sites then they're looking for the copyright infringement ban hammer to come down on them.
If they just put it on their site then no problem but if it's something very popular and they get traffic/advertising/other sales because they are using it to attract visitors then there may be a problem also.
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