Facing the music.

(Disclaimer: I am not a copyright lawyer – I don’t even play one on TV. This article is not meant to take the place of professional legal advice.)

Music. It’s a key creative ingredient in video biographies. Music can establish pacing, create moods and evoke historical eras. But there’s another aspect of music use video biographers need to heed: the legal side. Why?

Let’s look at a couple of hypothetical situations.

A. The storyteller you’ve just interviewed described herself as a devoted fan of Nat King Cole. Based on that, you decide to feature the song, “Unforgettable,” as the music track for the opening and closing of her video biography and to use other Nat King Cole songs as background music throughout the program. You buy a few CDs or download the songs you need, and set to work.

B. Your legacy video subject is a musician. He talks about how early Bebop influenced his musical style. You demonstrate the influence by playing a few bars from a Charlie Parker tune, then segue to your storyteller playing his own saxophone composition.

So, are these legal uses of copyrighted music? If not, what risks do you take by using it?

The answer to question one depends on how you interpret the fair use provisions in copyright law. Fair use allows you to use copyrighted material, without licensing it, in your documentaries and personal video biographies under certain conditions. Those conditions are outlined in a great guide, entitled “Documentary Filmmakers’ Statement of Best Practices in Fair Use.” A pdf download of the guide is available at the Web site of the Center for Social Media & Social Impact. The link to the best practices guide is on this page. I urge you to visit the site, download the guide and acquaint yourself with fair use.

According to the guide, there are two key questions courts consider in copyright cases:

1. Did the unlicensed use “transform” the material taken from the copyrighted work by using it for a different purpose than the original, or did it just repeat the work for the same intent and value as the original?

2. Was the amount and nature of material taken appropriate in light of the nature of the copyrighted work and of the use?

Judging by these two questions, I’d consider example A to be a blatant violation of copyright law. Importing a copyrighted piece of music into your video without licensing it and using it to underscore your video doesn’t transform the music at all. You’re simply just repeating it. Example B is probably another story. Here you’re using a short excerpt of copyrighted music in an appropriate way – to illustrate a point. Much different.

So what do you do if you really want to use copyrighted music in your next legacy video? The answer: You need to license it. That means going to a music publisher or a rights agency, telling them how you want to use the music and finding out what it’ll cost to get permission. Sounds simple, but it isn’t. Most music publishers aren’t interested in dealing with those of us creating videos for limited distribution. They don’t see profit in it. And if they do respond to your inquiry, you can very likely expect the cost to bust your budget. By the way, the kind of license you’ll need is a music synchronization license. Unlike the right to just listen to a song that you buy, a synchronization license gives you the right to synchronize that music with visuals in a film or video.

Other options? I can vouch for stock music. There are lots of companies offering music specifically designed for use in film and video. Depending on the company you choose, you may pay an annual licensing fee or a per use fee. Or, if you choose to buy royalty-free music, you’ll pay just once – to purchase the song – and then retain the rights to use it in any number of productions. The stock music library I license has a wide variety of music that gives me the creative options I need – and I never have to worry about rights, since the synchronization rights are included in the licensing agreement. Clean and neat – no muss and no fuss.

You may also choose to build your own music tracks by purchasing software that enables you to layer rhythm and melody samples. Or you might search craigslist (try “creative” under the “services” category) for a budding musician willing to let you use his/her tracks for free or low cost in return for acknowledgement in the video and perhaps a copy the musician can add to his/her portfolio.

So what do you risk when you use unlicensed music? The copyright holders can sue you, of course. But so far I haven’t read about many lawsuits directed at folks creating video biographies or wedding and event videos, even though some of them make extensive use of popular music. That’s not to say that someday publishers won’t wake up and realize that all our small companies taken together represent a potentially tidy profit for them. If and when that day comes, I don’t plan on being a test case in court.

Aside from protecting myself legally, the other reason I don’t use unlicensed music falls under the ethical/moral category. Folks who create music deserve to profit from their creations. I feel it would be wrong for me to generate income from the use of their work without reimbursing them. And since the current system makes such reimbursement difficult and expensive, I take an alternative route: stock music.

The bottom line for me when it comes to music: Unless it qualifies as fair use, I never use a cut I haven’t licensed or gotten permission to use. For me, doing otherwise would be illegal, unethical and unprofessional.