Use Unlicensed Music in Wedding Films at Your Peril

Quantum leaps have been made in both the quality and popularity of wedding films over the past 10 years. The advances are a result of technology improvements in post-production editing systems and the introduction of low profile cameras that rival the production quality of movie sets. Most recently, the availability of relatively low cost DSLR cameras has added a cinematic element to event film productions that previously was not available.

Event filmmakers have begun creating works of art that capture the emotions of the wedding day. So it is no surprise that wedding films are often set to music selected to create the desired mood. Historically, event filmmakers have not given much thought to obtaining permission to use a popular song in a wedding film, and some have even operated under the erroneous belief that purchasing the song on a CD or iTunes will avoid a copyright violation. Event filmmakers have now begun paying more attention to copyright issues as rights holders have stepped up enforcement activity directed to unlicensed use of music on the internet.

One notable example is the film of Tony Romo’s wedding that was streamed on the Internet by Austin event filmmaker Joe Simon in 2011. Although the film was only up for one day before it was taken down, that was long enough for a record label to notice that Simon had used a Coldplay song without a license. The record label sent Simon a cease and desist letter and demanded $150,000 for the unlicensed use of the song in violation of copyright law. Simon ultimately settled the claim for an undisclosed five figure sum.

The attention given to Simon’s film caused event filmmaker internet forums to erupt with discussions about the routine use of popular songs without a license. Many that had previously used popular songs in wedding videos without permission have stopped the practice, or at least are no longer streaming the wedding films on the Internet. Some are still using unlicensed music, and in some cases, admitting to the knowing improper use in event filmmaker forums.

Many event filmmakers complain about the inability to obtain a license to popular music for a reasonable fee. This has been a problem as the cost and time to contact a copyright owner to obtain a one-time license for a song is not feasible for a wedding film or other film intended primarily for personal use. However, the inability to obtain a license does not justify the willful infringement of the copyright in a song.

The vacuum in the market that has been created by the growth of the event filmmaking industry has, however, resulted in the birth of niche licensing companies that have negotiated deals with copyright owners that allow the licensing company to offer synch and streaming licenses for a substantial inventory of songs. For example, The Music Bed, located in Fort Worth, has numerous songs available at fees ranging between $49 and $399 for uses ranging from wedding films to corporate promotional videos. Song Freedom also offers a similar service at a cost of $34.99 per song for personal event video and photography. The licenses provided allow streaming in perpetuity and a limited number of DVDs or Blu-Rays. However, it is important to read the fine print of the license granted to be sure that the desired uses are permitted under the license.

Elizabeth Allen of Copper Penny Films in McKinney is an event filmmaker who has elected to use only licensed songs in her films. She notes, “While the number of popular songs offered by companies such as The Music Bed and Song Freedom is growing, I will often spend a significant amount of time listening to less popular music to find a song that fits the film. Although a bride may request a mainstream song, that song is not always the best fit, and I have found that the use of an indie song can help tell the story better than popular music that may take attention away from the film. But I still must explain to the bride why I can’t use the song she requested when other filmmakers are willing to risk using popular music without permission.”

In conclusion, the use of unlicensed music is not worth the risk of statutory damages of up to $150,000 and up to five years imprisonment. License companies will continue to fill their inventories with songs that can be licensed for a nominal fee. Event filmmakers should take advantage of the songs offered to avoid the risk of copyright infringement and to encourage the licensing companies to obtain more songs in their inventories.

World of Warcraft Meets the Digital Millenium Copyright Act

The Digital Millennium Copyright Act (DMCA) was enacted by Congress in 1998 in part to prevent the circumvention of technological measures designed to prevent either access to or copying of a copyrighted work.  With certain exceptions, the DMCA made it a crime to circumvent such measures and outlawed the manufacture, sale, or distribution of devices used to illegally copy software.

Examples of such anti-piracy prevention measures include technology that prevents an unauthorized copy of a DVD from being played and software that limits the number of times a computer program can be installed.  Because the law is relatively new and because technology is constantly changing, the scope and application of the DMCA remains an evolving frontier.

On January 28, the DMCA was applied to circumvention software used in connection with the largest and most successful multi-player online game in the world, the World of Warcraft computer game (WoW).  WoW players control their characters in a virtual universe.  The players can explore the landscape, fight monsters, perform quests, build skills, and interact with other players and computer-generated characters.  While playing, the players may acquire in-game assets, experience, and power.

Blizzard created and now operates WoW and owns all copyrights related to the game.  Introduced in late 2004, WoW currently has approximately 11,500,000 players, generating over $1.5 billion in annual revenues.

To play WoW, a user obtains the game client software and loads it onto his or her computer hard drive.  When the game is played, the client software accesses Blizzard’s game server software through an online account for which the user pays a monthly fee.

In June 2005, MDY began selling Glider to WoW users, generating revenues of over $3.5 million to date.  Glider is a type of computer program known as a “bot” that plays WoW while a user is away from his or her computer.  This enables the user to advance more quickly within WoW.

To an outsider, the use of Glider may not appear to have a significant effect on WoW.  However, because WoW is a carefully balanced competitive environment in which players compete against each other to advance, the use of Glider upsets this balance by enabling its users to obtain more than their fair share of game assets.  This diminishes the value of the assets acquired fairly by other users.  As a result, Blizzard received numerous complaints about the use of bots from customers.

To combat bots, Blizzard developed a technical measure known as Warden to prevent the use of bots by WoW players.  Initially, the software prevented the use of Glider to play WoW.  However, MDY made changes to Glider designed to avoid detection by Warden.  Thus, Blizzard filed claims, among others, of violation of the DMCA.

In MDY Industries, LLC v. Blizzard Entertainment, Inc., the Arizona District Court held that the DMCA applied to Glider.  In reaching this decision, the court examined the aspects of the WoW software that Warden was designed to protect.  The literal code could be freely copied without connecting to the server where Warden resided.

Likewise, the non-literal elements which constituted the majority of the game client software–multimedia content such as environmental graphics, sound effects, music, player avatars, etc.–are stored on the user’s hard drive and can be accessed without connecting to the server.  Consequently, the court found that the DMCA did not apply to the literal code and the individual non-literal elements because Warden did not prevent access to these features of the program.

However, the court’s analysis did not end there.  Although the individual non-literal illustrations and sounds created by the game client software can be viewed in isolation and even in limited combinations, they cannot be viewed dynamically in the WoW game unless the user connects to the Blizzard server.  Upon connecting to the server, the user can experience the dynamic components–real-time travel through different worlds, hearing the sounds of those worlds, encountering their inhabitants and monsters, and encountering other players.

None of these dynamic features can be accessed on a user’s hard drive.  To connect to a server and access the dynamic features, Glider must bypass the circumvention protections provided by Warden.  Consequently, the court found that the DMCA applied with respect to the dynamic nonliteral elements of the game.

MDY argued that the dynamic nonliteral elements cannot be copyrighted because 1) they are not “fixed” in a tangible medium as is required by the Copyright Act and 2) the users control the dynamic elements of the game, not Blizzard.  The Court rejected these argument citing a number of cases for the proposition that audio-visual displays of computer games are subject to copyright protection even though a player’s actions determine, in part, what is diplayed on the computer screen.  Atari Games Corp. v. Oman, 888 F.2d 878, 884-85 (D.C. Cir. 1989); Midway Mfg. Co. v. Arctic Int’l, Inc., 704 F.2d 1009, 1011-12 (7th Cir. 1983); Williams Elec., Inc. v. Arctic Int’l, Inc., 685 F.2d 870, 874 (3d Cir. 1982); Stern Elecs., Inc. v. Kaufman, 669 F.2d 852, 855-56 (2d Cir. 1982).

Another of MDY’s arguments that was rejected by the court in a previous decision is that copying software into the RAM memory of a computer is not a violation of any copyright owned by Blizzard because that is a use that is permitted by the Copyright Act.  An amicus brief was also filed in the case by Public Knowledge supporting MDY’s position in this regard.  Under 17 USC § 117, it is not a copyright infringement to make a new copy or adaptation of a computer program where making that copy is “an essential step in the utilization of the computer program in conjunction with a machine and that is used in no other manner.”  The court rejected MDY’s argument based on the Ninth Circuit’s previous decision in MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993), holding that copying to RAM memory of a computer is a copyright infringement.

MDY has expressed its intent to appeal the trial court’s decision and ask the Ninth Circuit to overturn the MAI Systems decision.  It will be interesting to see how the Ninth Circuit deals with the MAI Systems precedent in this case.  This could be an important appeal as evidenced by the varied opinions regarding the effect of the trial court’s decision.  As an example of the varied opinions, see the Broken Toys blog on this case.