You bought the video. You have your license copies and model releases. You’ve met all the requirements of 2257. Think you have legal content. Think again. If there’s music in the background, you need to know is it licensed? .Is Your Video Content Really Legal?

You bought the video. You have your license copies and model releases. You’ve met all the requirements of 2257. Think you have legal content. Think again. If there’s music in the background, you need to know is it licensed?

A lot of content for sale by both large and small providers contains unlicensed music. All it takes is a radio playing in the background of the scene and you have a copyright problem. Still photographers play CD’s for their models to move to then record the shoot on video. Unless they have a license for the songs you hear in the background that content is illegal. The same may also go for the adult films currently being sold for conversion to streaming. Music licenses are often media specific. Unless the film soundtrack is covered by a blanket license for all media or the person selling it to you owns the copyright, additional payments may be required.

Consumers are exempt from copyright violations when they record music for private, noncommercial use, however, the moment a content provider sells content with unlicensed music in it and the moment you play it on a commercial site whether it streamed or downloaded that’s piracy. Pirate recordings are the unauthorized duplication of legitimate recordings even if it’s part of a multimedia file such as video

In terms of copyright, music is no different than any other artistic work including pictures. It’s all a matter of what is called “performance.” U.S. Copyright Law provides that to “perform” a work publicly means to render or play it by means of any device or process to transmit a performance. And that includes the Internet.

Musical compositions, like other intellectual property, belong to their creators. U.S. Copyright Law grants exclusive rights to copyright owners to authorize others to publicly perform the work. Web sites that publicly perform music must obtain a license from the copyright owner or their representative.

So what are you risking? Penalties for copyright infringement differ in civil and criminal cases. Civil remedies can be pursued for any act of infringement without regard to the intention or knowledge of the defendant, or harm to the copyright owner. Criminal penalties are available for intentional acts undertaken for purposes of private financial gain.

Sound recording infringements can be punishable by up to five years in prison and $250,000 in fines. Violators can also be held civilly liable for actual damages, lost profit, or statutory damages up to $150,000 per work. And it’s not just web site operators, ISP’s can be held jointly liable

Two important legal concepts should be kept in mind-contributory infringement and vicarious liability.

Contributory infringement may be found where an infringing activity causes or contributes to the infringment. In other words, a link site operator may be liable for contributory infringement by linking to infringing files.

Vicarious liability may be imposed where a person has the ability to control the activities of the direct infringer and also receives a financial benefit from the infringing activities. Vicarious liability may be imposed even if the person is unaware of the infringing activities. Now you’d think that applies only to ISP’s. Guess again

For a site owner, retransmitting or enabling infringing content to be streamed from another server onto your site may show an ability to control the activities of the direct infringer, and receiving revenue from the infringers banner ads or e-commerce may be evidence of a financial benefit.

New technologies like BayTsp’s BaySpider scan the Internet identifying web sites that contain unlicensed material. Their spiders can penetrate firewalls and password protected sites. BayTsp can track music files regardless of their format or sampling rate. It doesn’t matter whether you have a whole song or just a portion of it. Violations can be found.

So what do webmasters need to protect themselves when buying video content?

According the Robert Sarno, a partner in the law firm of Brull, Piccionelli, Sarno, Braun & Vradenburgh, you should require a written contract that includes two key provisions. The first should state the content provider has acquired or licensed the rights to all intellectual property incorporated within the clip, video, or movie. The contract should specifically note that those rights include the right to re-use, republish and especially digitally transmit the material. This is a very important point when you are buying old adult movies or videos. The rights to a lot of pre-Internet content do not mention digital transmission.

The second provision should note that the vendor or content provider will indemnify you, the purchaser, from any breach or misrepresentation of those rights.

Are you already streaming video content with music but without a contract? According to Robert Sarno, you could try to get a letter from the vendors stating that they have all rights necessary to transmit the material on the Internet.

Failing that, I suggest you should remove the material, edit or delete the soundtrack or license it yourself. Whatever you do, do it soon. The criminal statute of limitations for copyright infringement is 5 years.