Re: FLASH: WOW - creative

[Shahid Quadri]

>Amazing site, clever idea with the tennis game as a wait anim, I

>wanted to continue playing it even though the loading had finished.

>

>I also have a loop of Stardust on my webpage, even if someone from

>the record label would complain, I assume they would tell me to take

>it off, and only if I don't then they would take court measures, correct?

>

>Anyone know anything more about what happens when one uses

>copyrighted sound loops from music?


I work at a record company, in the web department -- not legal, so I'm no

expert, but this is my understanding: when you use a sound clip without

clearing it, you are infringing on two things: the copyright (the

composition embodied by the sound recording - i.e. the actual notes and

melodies that make up a song), and the master [recording] right (the actual

sound recording of those notes and melodies).


So in the case of the two people with Stardust clips on their site, they

are both infringing on the copyright, and possibly different master rights

-- if the respective versions being used were recorded by different

artists. So one would have to contend with whomever owns the copyright

(this could be a publishing company - which are often subdivisions of

record companies, or exist as companies in their own right, but they

shouldn't be confused with record companies proper) and whoever owns the

master recording rights (usually record companies and sometimes -- usually

in the case of unsigned independent artists--the artists themselves). This

is a little confusing.


For example, if I was to create a Midi file of Stardust and put that up on

my site, I would be infringing on copyright but not master recording

rights. In fact, everytime you sing Happy Birthday the music publisher

should be getting some royalties. However some music becomes legally

designated as existing in the public domain, despite previous copyright

ownership;  something like Happy Birthday would likely fall into this

category if it was ever challenged in court by the copyright owner. Most

contemporary music would not fall into this category, however. When you buy

a cd you own a copy of the master and you can make as many copies for your

own personal use to play on your computer as MP3's or in your car cassette

deck because of something (in the US) called the "fair use" clause (but

distributing to your friends and family is a civil offence, and

distributing to your friends and family for profit is a criminal offense --

don't quote me on this, this is US law I'm trying to remember). This also

allows people to reproduce music or other copyrighted material for

non-commercial, usually educational, purposes. You might be able to get

away with using clips on the Internet based on this clause.


The web is still a nebulous area though. It doesn't clearly fit into the

rules that govern radio or television broadcast and the existing licensing

systems meant to ensure artist rights/record company royalties (this gets

even more nebulous when you consider the differences between US and

Canadian (the company I work for is an independent Canadian label) laws,

let alone international). Also in traditional broadcast law you can use x

seconds of a song without getting clearance (Canadian law, I don't how this

works in the US) in certain contexts. What the contexts are, I can't

remember, and whether they apply to the net is a whole other question mark.


I don't think anyone would go to court over the use of a clip on a personal

site, unless they were extremely obstinate or making lots of money because

of it. You would probably get a polite letter asking you to remove it, then

a not so polite one, and then contacted by legal affairs etc. Using a clip

on a commercial site, say for a flash web-mercial, is different; you would

likely have to license the rights to this through the record company and/or

publishing company.


If someone came to the company I work at and said they were using a clip in

a non-commercial context for a flash project, it would be looked at on a

case by case basis (keep in mind that this is an independent label, not a

major label who have more rigid rules about people using their copyright

without paying). The company along with the artist would decide if they

wanted to be associated with the material using the clip (it would only get

to this stage if the company beleived there was a significant amount of

traffic at this site). This is more about controlling identity than

copyright infringment. Certainly for the label's lesser known artists, this

could be seen as a promotional vehichle and the creator of the illicit clip

would be given the company's blessing. However, if the material was

offensive or if the clip creator was trying to represent themselves as

officially attached to the artist in question, the clip creator would

definitely be contacted by the legal department. Also in the case of some

of the label's bigger artists, there might be less flexibility because

these artists want to control their representation and are not that hungry

for just any kind of promotion. And in some cases, they can legally contest

a use of their likeness, let alone, their actual music or image. Again,

this is only a concern in commercial stuff.


Yeah, so that's way more than I expected to write. I hope it helps.


ps. don't quote me. I'm a web guy not a lawyer ;)

--


  ,..

;   _

shahidnettwerk [dot] com

		Shahid Quadri

 c oo		604.654.2929 			Web Developer

    \		http://www.nettweb.com		Nettwerk Productions

   -

 


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