Over the years, there has been a lot of discussion about the use of music on video memorials as it pertains to funeral homes. We have discussed this issue in-depth with multiple lawyers, ASCAP/BMI representatives and the NFDA. Music copyright protection can be tricky, and it changes more and more with the internet and downloading concerns.
The bottom line is:
There is no acceptable way to legally use copyrighted music in video memorials.
The Yellow Pages had an interesting article on the music license program provided by the NFDA. Here is an excerpt as it pertains to licensing violations:
Pepper (Christine Pepper, NFDA CEO) also notes that compliance to music licensing laws is something funeral service professionals should not take lightly. “The music licensing agencies have also informed us that they plan to step up their enforcement efforts at funeral homes,” adds Pepper. “Noncompliance fines can be as high as $30,000 per violation.”
Q: I have an ASCAP/BMI license I purchased through the NFDA or ICFA; does that cover music used in videos?
A: The NFDA or the ICFA provides ASCAP/BMI music licenses to funeral homes. This license covers music broadcast by the funeral home both live and pre-recorded.
“This license DOES NOT cover re-recording music into video/presentation tributes.” - Kim Klotz, NFDA.
Q: If the family bought the music for personal use off of something like Rhapsody or iTunes or actually purchased the entire CD, and the music will simply be matched up to the video produced, then is there a copyright violation? It's still for their personal listening pleasure.
A: This scenario sounds "ethical", it just isn't provided for legally. Even if you give away the videos for free, you still can't legally use someone else's copyrighted music. The problem with this is that you would be reproducing the work, altering it by presenting it along side differing video work and distributing it.
Q: How do I go about obtaining the right to use songs on videos that I will distribute to the family?
A: A clearance agency handles mechanical licenses. This is the basic permission to use the song in your work. The music publisher must be contacted directly to secure a synchronization license. This is the right to use a particular performance of the song "synchronized" to video material. If the music is in the public domain (such as many classical pieces), you must still obtain permissions from the organization that performed the piece, or the publisher who has the rights to that performance. Fees will depend on the planned use, number of copies anticipated, and the greed and/or fame of the copyright holder and will be relatively high. For many low-budget projects, it makes more sense to use royalty free music. (Reference: http://www.videouniversity.com/forums/gforum.cgi?post=132890;guest=4278894165)
Q: I am just a small funeral home; would the publishing companies really come after me?
A: The people who are most at risk are the ones that play music in front of an audience as part of their services. Publishing companies tend to go after obvious violations such as unauthorized use of music in advertising. Performing Rights Organizations also known as "PRO" go after MANY small businesses like Bars, Coffeehouses, and Restaurants etc...to pay for licenses to play controlled Music in a place of business. Funeral Homes have even been targets. (Reference: http://www.photo.net/bboard/q-and-a-fetch-msg?msg_id=009h3l&unified_p=1)
Q: We are currently producing videos for funerals.
We are producing three versions of these videos:
1. DVD quality version using royalty free music that is sold to the funeral home and then in turn given to the family.
2. Web quality version using royalty free music that is posted on the funeral home web site.
3. DVD quality version that is given to the funeral home free of charge to play at the visitation and service only.
My question is, on version 3 that is given free to the funeral home and is not given or sold to the family or posted online, can we use music that is requested by the family in lieu of the royalty free music? For example, a family has chosen a song they want played at the service (Alan Jackson) and they will be playing the video on the screen without music and have that music playing on the CD player. Can we put that music on the video instead as long as we are not reselling that version??
A: The test for copyright violation is not whether you sell or not sell royalty music, rather it turns on usage. You have a right to play music in private that you have legally purchased, e.g., CDs. But, you can't play that music in a public forum, whether you charge for the music or not. For example, if you purchase an Alan Jackson CD, you can listen to it at home, in your car and elsewhere in private. But, you can't play it over the office intercom or in your store or restaurant without permission. It just is not legal. If you are in the business of providing music, then you are more at risk, especially if any of the music copyright companies ever find out about your services. (Reference: Gemini Graphics’ Intellectual Property Lawyer)
Q: How do I avoid copyright violations when purchasing or creating memorial videos?
A: The best way to avoid issues is to purchase or create videos that only use royalty free music or music that the videographer can assure they have the rights to use. If they tell you they have obtained the rights, ask to see them in writing, because YOUR FUNERAL HOME is ultimately liable for any copyright violations.