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COPYRIGHTS Watch Out What You Do With Copies Of The Spots You Voice July 22, 2013  By Jennifer VaughnVoice Actor Ever needed to get a copy of a voice over spot you worked on? Sometimes a simple request to a producer or client is all that is required to get a finished copy. There’s also a service that has been around for more than a decade called National Aircheck. They can scope almost any broadcast channel (radio or television) for almost any length of time and send you a copy via mp3 or CD with a notarized statement, if you need it for legal proceedings. It's going to cost you per scoping, though. Their rates now start from $110 to $115 for up to five minutes, as of this writing. You simply tell them the channel or station, the hour or hours you'd like scoped, along with which day or days you'd like recorded. You can even request times in the past. BUT NOT FOR PROMOTIONS Remember though, this type of service would be for your private archive only, or for use when someone is bilking you out of license fees. I definitely would not suggest scoping to get copies of your work in order to "promote or advertise" yourself on your demos. For that, you need permission from the copyright holder to use their fully produced concepts and spots. One thing talent seem to forget is that either the client or the agency owns those copyrights to their spots as a whole. GET WRITTEN PERMISSION So you might be in serious legal trouble if you grab those spots and employ them for your "promotional" use in demos on your website or on any other website where you post those demos. Do not do this unless you have "written" permission from the agency/client to use those recordings on your website as a promotional tool. Otherwise, you could end up paying a serious penalty and back license fees to the music library, the ad agency, the client or all three. Tip: Write approval of this use into your agreement with your fees. AGENCY HAVE PERMISSION? Another issue and slightly more important, is to be absolutely sure that the agency has "licensed" the music - or paid the proper fees - on the spot you voiced and are now using for promotion. If they do not - and say, they rip it off or do not hold the license - it could put you in serious legal trouble, because that music library can come after YOU. After all, you are using their music to advertise and promote yourself, and if the ad agency did not pay for it, you certainly are going to. SEARCHING FOR INFRINGEMENTS For instance, TuneSat is one of many companies that monitor broadcast outlets, paying specific attention to website demos with music. Today, these companies use technology to check copyright infringements quickly and effectively, whereas 10 years ago it was almost impossible unless someone recognized their own music and was listening in the right place at the right time. Voice talent need demos to promote their services, of course, but they'd better not be caught using any of TuneSat's client’s works. Music libraries retain that service to go after talent, ad agencies and anyone who uses libraries to ensure the correct licenses are in place. HOW THEY CATCH YOU If you think they are not going to catch you, you're wrong. They eventually will. Here's how. Clients provide these companies with high-quality recordings of their music. The company "fingerprints" the recordings to check on multimedia files containing millions of websites worldwide. When a match is found, the URLs where the content was identified are sent to their client and their enforcement division. If, for instance, you post on Voice123 or any of the many other sites that allow you to post demos as a form of promotion and advertising, those sites will give them YOUR contact information since the demo came from you. Then you'll receive a distressing phone call or letter in the mail. So - be very careful what you do copies of the spots you voice! ----------------------------- ABOUT JENNIFER
Jennifer Vaughn has been
a full-time voice talent since the early 1990s, entering the field
through radio and concert promotions. Well known for national and
international radio and TV imaging and branding, she also voices many
industrials, military and medical e-learning projects, and children’s
audiobooks. With home studios in Florida and Colorado, plus interests in
other businesses, she asks, "Who says you have to stick to one thing?
I’d get bored! Gotta be a mover and a shaker.”
Email: jennifer@jennifervaughn.com
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Your citation of the "fair use" test is misplaced for demos. In general, for projects that you have voiced that have already aired are usually fine to use for demo purposes, but use of the music on those projects may get you in trouble! Several of my past clients have been pursued for copyright violations due to their demos, and I am representing current clients who are fighting this battle, as well.
This is not a scare tactic, and actors NEED to be aware of these potential issues. Feel free to contact me and I will share more details with you about this issue.
I quote very important information from the article that you cite in your post, which people need to read and understand:
"The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.
"The safest course is to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.
"When it is impracticable to obtain permission, you should consider avoiding the use of copyrighted material unless you are confident that the doctrine of fair use would apply to the situation. The Copyright Office can neither determine whether a particular use may be considered fair nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney."
In other words, fair use is a case-by-case doctrine, and to apply it in a blanket, general manner as you do, without consulting an expert in copyright law with the question about the specific use and the specific piece of material to be used, is very dangerous and not good advice.
Also, the reason that YouTube and Vimeo will repost your demo is because of the provisions of the Digital Millennium Copyright Act, aka "Safe Harbor", which provides immunity to Internet Service Providers, such as YouTube, Vimeo, Google, etc. Here is a link to a summary of that Act. In order to take advantage of those provisions, one would need to register as a service provider, and pay the fee to the US Copyright Act.
http://www.copyright.gov/legislation/dmca.pdf.
However, a company that I consult is going through this particular battle right now. This company is doing its best to protect all the talent singled out from this claim right or wrong, but "TuneSat" is threatening to bring legal action against talent/demos and the company itself for this "specific" reason.
The music library hired TuneSat to go after "talent" and "websites" streaming or posting demos of voice talent that in this case Five Alarm (owner of the music copyrights) and a client of TuneSat's hears through this technology. This is not an empty article, threat or even a possibility, it's going on right now and happening to other voice talent.
My God, why would I want to use any kind of scare tactics on my own voice talent peers unless I was observing this issue with my own eyes!?
I've been a vo talent professional for a long time and have never even heard of this until it came up just recently. "A distressing phone call" are the exact words I heard from the GM when he told me about it, as he had never had a threat like this before, nor had I.
And if you know the slightest thing about litigation, your adversary will use scare tactics to get you to PAY before you go to court and prove your case. And guess what? You have every right to refuse to pay, but they can STILL take you to court, which costs quite of bit of money (to start, a $2500 retainer).
So right or wrong, this WILL cost you if the party intends to file a claim against you. They can certainly assess that a demo sells your services, which is quite an argument and depending on the judge, you never know what the ruling will be.
Unfortunately, law is not as black and white as we all may think it is. Opposing parties can always make quite good arguments on either side and ultimately, it's the judge's opinion that becomes the judgment against you if one is ruled.
Again, be careful. Try to mitigate your risk of this happening to you. As this company goes through this ridiculous claim I will update this article.
Just what kind of phone call, that is "distressing," should I be concerned about? And from whom? The agency of record? The studio? The copywriter? The advertiser?
No. None of them. Do you think that any of the parties involved in the production of Heroes is going to stop me from using clips from that show on my demo reel?
Or anyone who helped produce the Coca-Cola/NASCAR radio commercials or the Carl's JR/Hardee's TV spots I've voiced is going to ask/demand/sue me for using them in my commercial VO reel?
I've seen several articles like this, scaring actors needlessly. None of this is true.
Taken to its extreme, if you're an author, you wouldn't be able to promote your books. Why? Because you don't own the copyright, the publisher does. If you were a musician signed to a label, by this logic, since you no longer are in control of your copyright (the label usually is), you couldn't put a clip of your work in a promo package.
I'm not sure where this is all coming from, but using content you've helped create pass muster for all four fair use tests and exclusions in Sec 107 of the US Copyright code, tests which are specifically crafted to allow for the use any and all content from any and all work that we do, including for demonstration purposes.
The tests are:
!. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes (in our case, for education and career advancement, not to sell our demos)
2. The nature of the copyrighted work (it is always work we are in, demonstrating our capabilities)
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole (we are using clips, not the entire show/commercial grouping)
4. The effect of the use upon the potential market for, or value of, the copyrighted work (we are not replacing an ad buy or a sale of the product or service)
And other services, like YouTube and Vimeo, completely agree. If your demo is automatically taken down because the fingerprinting in the content is detected, a simple email replying that you are using this content as a demo and your voice/likeness is in the content gets it put right back up.
There are no legal precedents for this kind of alarm - in fact, you should be talking to talent about how they CAN and have every right to use their work in their demos, and are encouraged to do so by the copyright law.
Relevant part of the code:
http://www.copyright.gov/fls/fl102.html
The reason you can't find any examples of this actually happening to people is that it doesn't actually happen.
Hope this helps.
David
Excellent article - thank you.
And what about using the copy from past publicly broadcast ads to read in demos? Or those people who use trademarked names to make it sound like they did spots for big companies?
I heard training material from a well-known (but will remain nameless) voice coach who said they took music from a Disney film trailer for use in their demo. I said that was surely the wrong thing to do, and could lead to big trouble.
A good article, but it is incomplete. Perhaps you will write another one with more precises details.
All the best,
Lee.