Wedding Photographers Face the (Copyrighted) Music

by David Walker

A wedding photographer's run-in with a rock band for unauthorized use of a popular song on a client's wedding video has cast a spotlight on a practice that makes photographers squirm: their violation of other artists' copyrights.

ABC news reported that a video from the wedding of Dallas Cowboys quarterback Tony Romo and TV journalist/beauty queen Candice Crawford suddenly disappeared from YouTube after going viral. According to ABC, the video featured Coldplay's song "Fix You" as theme music. The photographer--Joe Simon of Austin, Texas--reportedly settled for an undisclosed amount to avoid a lawsuit for unauthorized use of the music.

But Simon is by no means the only photographer to synchronize copyrighted music to a wedding video or slide show without permission. With no easy or affordable way to clear rights with copyright owners, and only a small risk of getting caught (unless the video goes viral), a lot of wedding photographers are breaking copyright law.

"Photographers are using main stream music more and more and it's a pretty polarizing conversation," says wedding photographer David Jay. "Some photographers really feel passionately about it and think of it as 'stealing' while some artists want to pay but can't and others see it as one artist helping another artist  promote what they do."

"It's an issue [wedding photographers] have been concerned about. It came up in a workshop we taught in 2007, and the conversation is accelerating," says photographer Andrew Niesen. He says many photographers want to be in good standing with other copyright holders.

"A lot of photographers are using music out of license due to ignorance. They don't know how to pursue a license," says Rachel LaCour Niesen, who is Andrew Niesen's wife and business partner.

Jay says wedding photographers simply find music licensing too difficult.

"It's nearly impossible and I've never heard of a wedding photographer successfully being able to license a mainstream song for synchronized use," he says. "I've spent a long time trying to make it possible. Photographers want to pay a reasonable fee to use the music so when they can't they'll just do it anyway."

The problem, Jay explains, is that you have to get a license from three or four different people, including the lyricist, the composer, and the recording artist and/or their record company. While rights licensing organizations such as ASCAP and BMI make it easy to license music for broadcast, they don't offer synchronization licenses for "small" users like wedding photographers.

"For something little like that, they wouldn't give you the time of day," says Nancy Wolff, an intellectual property attorney with Cowan, DeBaets, Abrahams & Sheppard in New York.

Trade associations for wedding photographers are silent on the matter. Professional Photographers of America and the Wedding Photojournalist Association did not respond to requests for comment.

Niesen and Lacour have tried to solve the licensing problem on their own by paying about $1,000 per year to ASCAP and BMI for licenses the photographers describe as "experimental." The licenses allow them to use any songs in the ASCAP and BMI repertoires, under certain conditions and limits.

"That gives you access to 90 percent of the songs out there," Andrew Niesen says. But they have to keep track of (and report) the downloads of each song, to make sure they don't exceed the play limit.

"We worked pretty hard to figure out what to do," he continues. "I think we're pretty well covered, but I always worry about whether we're correctly licensed with this thing. I know I'm doing more than a lot of photographers who grab a song and use it."

Another service Niesen and Lacour use is Triple Scoop Music, a licensing service representing up-and-coming artists that many other wedding photographers also use. The problem is that Triple Scoop (and other services like it) don't represent the rights holders of the most popular music, which is what most wedding clients want on their slideshows and videos.

"I want music that a couple connects to for a slide show," says another successful wedding photographer who admits she uses music illegally--and doesn't want her name used because of that. She praises Triple Scoop--"great selection, a ton of variety," she says. And she uses it to license music for any slide shows she displays in public.

But for slide shows she makes for her clients, an unfamiliar song from a service like Triple Scoop, she says, "isn't the same as using the music they played at their wedding," she explains. "I want to use a soundtrack that will transport them back to their wedding. I can't trigger that memory with generic music, no matter how good it is."

"It's ironic," she continues. "We [photographers] are so 'don't steal my images,' but we'll steal your music. That's the worst part of it."

To assuage her sense of guilt, she doesn't charge clients for slide shows. She provides them to clients as "a gift," separate from the wedding package items that she charges clients a fee for.

David Jay compares using music without permission on a DVD or video meant a client's private use to driving 60 mph in 55 mph speed zone: hardly anybody gets in trouble for the violation.

"I personally don't think it's illegal to use the music and until a judge or jury makes a ruling that it is in this specific type of case I'll probably continue to be OK with photographers doing it."

Wolff emphasizes that there is "no exemption for personal use" that makes it legal for wedding photographers to use copyrighted music without permission. "If you're doing a slide show, you should get a license."

But she also says that if a slide show is shared only among family and friends, the rights holder is unlikely to ever find out.

Videos and slideshows posted on YouTube (by the photographer or the client) pose more of a risk for the photographer because music rights holders are able to scour YouTube with music recognition software for illegal uses, Wolff says. "If they see it, they tell you to take it down. But they're probably not going to sue you."

She speaks from some experience. Wolff represents PACA, the trade associations for stock photo agencies. Someone posted on YouTube a video shot at a PACA event showing members dancing. The owners of the music playing in the background found the video online--and sent a takedown notice.

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