More Licensing Issues

[Quad Aces]

I think you hit the nail on the head.

What is more important? The artistic endeavor? The "perfect show design"? History? Competition? Archives?

Then we could get into whether or not we should be encouraging people to GO TO SHOWS to ensure they get to see the most complete product

Problem is, not everyone is capable of going to see even a single show in a given season no matter how much they are encouraged to do so. They buy the CDs/DVDs/BRDs/FN as their only means to see the shows that season - well, that is until the CDs/DVDs/BRDs/FN started getting chopped to pieces...

[Pete Freedman]

I just searched for "Empire State of Mind 2011" on YouTube, and got the following results (abridged for simplicity):

...

On the front page of results there are 30+ videos of Madison Scouts.

...

Now this is what I call evidence.

On a side note, I noticed in one of the links in Jeff Reams WGI post that both Jay Bocook (Cadets) and Richard Saucedo (Blue Stars for 2013) are listed in the Hal Leonard section as work that is available under their license for an arranged fee. Gee, I wonder if they'll notice if we steal from them...

[JimF-LowBari]

Now this is what I call evidence.

On a side note, I noticed in one of the links in Jeff Reams WGI post that both Jay Bocook (Cadets) and Richard Saucedo (Blue Stars for 2013) are listed in the Hal Leonard section as work that is available under their license for an arranged fee. Gee, I wonder if they'll notice if we steal from them...

If I get a order to appear in court summons after the DCA DVDs are realeased I'll let you know.

Kidding, as my group has been doing a Bocook chart for a few years now..... (Patriotic Medley)

Edited November 8, 2012 by JimF-LowBari

[Pete Freedman]

Let me defend glory here to the extent that it is true that lawyers as a rule tend to advise erring on the side of caution, and sometimes the needs of the business/organization require risk. And sometimes the actual risk turns out to be trivially small, in contrast to what the lawyer claimed.

I read a book by Moses Avalon (can't remember the title, he has more than one) in which he has a conversation with an entertainment lawyer about the advice they generally give to rock bands, that they should have a lawyer and that they should trademark their name. This is expensive, but the reasoning is usually that a label may not want to make a deal with them if there turns out to be a trademark conflict.

Avalon's question was whether the lawyer could think of any case where the label refused to sign for that reason, or one in which the new band after signing had to change its name because of a conflict. The answer was no, because it's trivial for the big labels to outspend any small band in court. The combination of a few thousand bucks incentive and the threat of expensive further legal action always works in practice, and so the label would never refuse to sign a band for such a trivial reason.

So nearly every band is getting bad advice from nearly every entertainment lawyer. Glory's concern has precedent, so to speak.

[glory]

And all I'm asking for is evidence of 1, 2, and 3. If you are expressing certainty about something, you are expected to provide evidence. Does that concept ring a bell anywhere?

1. They won't notice. They might notice. Why do you believe that however they find out about compositions (presumably someone reports the use) won't happen in the case of a Charlie Brown clip? What is it about the clip that you think makes it uninteresting to those who rat out violators? More to the point, what is it about these clips that makes you so certain they won't? There are people on DCP who hate these clips so much they might be tempted to inform every rights holder of clips used even early in the season. If DCI actually followed your advice, I would be sorely tempted to do so, as would many others. We/they could form a group that identifies all the clips, finds the rights holders, and sends out boilerplate emails saying that DCI appears to intend to create synched video products for sale to fans of the activity worldwide. Still think they won't notice? Fortunately, DCI won't follow your advice.

2. They won't care. As pointed out several times by others, they must care if they want to be able to enforce the copyright in the future. You consistently fail to respond to this point. If they let DCI abuse their copyright even after someone informs them, they might lose a case against a bigger fish, and lose the rights permanently. In the Peanuts case, that might effectively include the rights to all clips from that movie, not just those the Cadets used.

3. They are unlikely to win. Their chances of prevailing over a marching band appear to be very good, according to stories on this thread. The law does not appear to care who the violator is. If you have actual evidence otherwise, please state it.

Now, they could do a limited form of what you are saying: just ignore everything until they get a C&D, then do what they do now. Two variables: they would save all the money they spend on these rights currently, along with the effort involved. They might have more deletions in the videos, or less. If it's less then that might be a way to go. But if it's more, and potentially much more, then it's a bad approach. But they would need highly qualified legal advice before doing this.

I prefer the approach of forcing all corps to acquire the sync rights before using them in a show intended to be sold as video. Problem solved.

Here's where I'm coming from regarding "won't notice, won't care, won't win." And it's really quite simple (keeping in mind you're asking me to prove the negative).

First, the burden is on the copyright holder to discover the clip in question. This is drum corps. It's not radio television or movies. It's not even YouTube. Speaking of which, if they happened to be wanting to enforce their copyright against unfair use on YouTube, they'd already be busy. All they'd have to do is type "Charlie Brown Christmas" into the YouTube search to find several multi-minute videos from the show. Some have been up for years. Some have millions of views. In fact, there's one version that's upside down specifically to circumvent copyright takedown notice (it states explicitly that's why it's flipped!).

I realize I am making an assumption, but I think it's safe to assume that no one from the Charlie Brown world will be watching our DVD. Even if they do, what will they find? Not the minutes of video on YouTube that have been watched by millions. They only would find a few seconds of audio - and that not even in a Charlie Brown context. They'd find a few second of audio among many Christmas references - if they found it at all.

Now I can't prove they won't sue any more than I can't prove they couldn't find it. But what if they did? Some people mistakenly think copyright is an absolute. It's not. There are zillions of examples of fair use of copyrighted material (think about quotes in books or magazines or in music for that matter) that go entirely unchallenged. Everyone forgets about those.

Anyway, what if the Charlie Brown folks challenged the marching band anyway. The burden would be on them to prove infringement. They'd have to contend first with the more-than-salient fact that this misguided marching band took only the audio portion. That alone would undermine any claim the Charlie Brown folks could bring that the infringement of their copyright wasn't fair because it diminishes the value of their property. Yes, that's one of the fair use tests. In addition, they'd have to contend with another fair use test - was the amount taken appropriate and was it used in an appropriate fashion. And of course the Charlie Brown folks would have to contend with their own practice they allow easy free access to much more than DCI did.

Regrettably, I think the best case the Charlie Brown folks could make would be focus their complaint specifically on the marching band situation. They could argue that any use by any marching band detracts from the value of any intellectual property in the public eye. They might even leverage the nasty comments on DCP to prove such an assertion. Oh, the shame.

HH

[Jeff Ream]

These links seem to show that WGI takes licensing seriously. They have to have rights in place in order to perform. However, I didn't notice sync rights specifically mentioned. (But I might have missed it)

<off-topic>

I did notice the link to their fan network site:

http://wgi.thefannet....org/index.cfm?

Which has their 2012 Championships Highlights in the grid at the bottom. Awesome stuff.

</off-topic>

WGI doesn't #### around, and DCI is getting to that point as well

[glory]

...2. "They" most certainly will care. What makes you think they won't? Copyrighted material needs to be protected, even against "minor" infringements...

I want to address this one point separately. Because this is where this situation veers off into mistaken thinking and thus practice.

Copyright is intended to confer on the creators of content the exclusive right to benefit from its creation and thus to encourage the creation of more content. That right has always been balanced against the larger right of free speech and free expression. Neither overrides the other.

This is why authors have long been able to quote one another. And it's why the law has deemed fair even wider exceptions to copyright for public interest matters like news and commentary or for parody. These have occassionally been contested. But no court has ever held that copyright implies absolute and total control over the content.

What's seems to be confusing (and paralyzing) some today is newer media. For some reason, some people - many of them lawyers for the major TV, film and music producers - would have us believe that video is different. Why would that be? Why should it be different for anyone to quote print in the print context than video in the video context? The answer is: It shouldn't. Fair is fair.

HH

Edited November 8, 2012 by glory

[Jeff Ream]

I think you hit the nail on the head.

What is more important? The artistic endeavor? The "perfect show design"? History? Competition? Archives?

Then we could get into whether or not we should be encouraging people to GO TO SHOWS to ensure they get to see the most complete product

and only then finals, because #### changes all year.....to a site that many don't like as is

[Jeff Ream]

Here's where I'm coming from regarding "won't notice, won't care, won't win." And it's really quite simple (keeping in mind you're asking me to prove the negative).

First, the burden is on the copyright holder to discover the clip in question. This is drum corps. It's not radio television or movies. It's not even YouTube. Speaking of which, if they happened to be wanting to enforce their copyright against unfair use on YouTube, they'd already be busy. All they'd have to do is type "Charlie Brown Christmas" into the YouTube search to find several multi-minute videos from the show. Some have been up for years. Some have millions of views. In fact, there's one version that's upside down specifically to circumvent copyright takedown notice (it states explicitly that's why it's flipped!).

I realize I am making an assumption, but I think it's safe to assume that no one from the Charlie Brown world will be watching our DVD. Even if they do, what will they find? Not the minutes of video on YouTube that have been watched by millions. They only would find a few seconds of audio - and that not even in a Charlie Brown context. They'd find a few second of audio among many Christmas references - if they found it at all.

Now I can't prove they won't sue any more than I can't prove they couldn't find it. But what if they did? Some people mistakenly think copyright is an absolute. It's not. There are zillions of examples of fair use of copyrighted material (think about quotes in books or magazines or in music for that matter) that go entirely unchallenged. Everyone forgets about those.

Anyway, what if the Charlie Brown folks challenged the marching band anyway. The burden would be on them to prove infringement. They'd have to contend first with the more-than-salient fact that this misguided marching band took only the audio portion. That alone would undermine any claim the Charlie Brown folks could bring that the infringement of their copyright wasn't fair because it diminishes the value of their property. Yes, that's one of the fair use tests. In addition, they'd have to contend with another fair use test - was the amount taken appropriate and was it used in an appropriate fashion. And of course the Charlie Brown folks would have to contend with their own practice they allow easy free access to much more than DCI did.

Regrettably, I think the best case the Charlie Brown folks could make would be focus their complaint specifically on the marching band situation. They could argue that any use by any marching band detracts from the value of any intellectual property in the public eye. They might even leverage the nasty comments on DCP to prove such an assertion. Oh, the shame.

HH

and haul DCI and/or the Cadets into alengthy court battle neither can afford. DCI is trying to keep DCI together, and the Cadets are trying to break it up, both of which require cash

[glory]

Another perspective on the copyright "controversy" is how this is an issue only as regards video.

No one is challenging the right to perform these alleged infringers of copyright. No even is challenging the right to take money in the process of performing them. Nor to record the audio or to take money for that. The only issue is video. How half-pregnant is that?

So the copyright is intact for live performance. Intact for audio. It applies even though you take money for each. But video crosses the line? It's all the more idiotic in the Charlie Brown context where no video was taken - only audio. The audio is okay. But the audio from the video on the video isn't? I'll say it again: Good grief.

HH

PS: Don't lecture me on sync license and millenium video act. I get it. It's stupid. That's my point.