He's a better dancer than he is Lawyer
The definition of public doesn't change to the convinence of the user public is public.
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He's a better dancer than he is Lawyer
The definition of public doesn't change to the convinence of the user public is public.
If he was quoting facts that would be great. He's handing out lines of s_it and passing it off as fact different thing all together. I'm no Lawyer and don't claim to be but I do hold an advanced security certificate and we spent a fair bit of time on public and private. Technically when you go to your front yard if you can be seen from the street you are public. That definition doesn't change at convinence it is what it is.
http://www.briantbeasley.com/?p=148
You can click the links for yourself the courts have decided what is public and what is not.
Correct, I still did not answer your question.
No. You can look up the published case law yourself.
You being too lazy to inform your own opinion with actual research; does not encumber me or anyone else to do it for you.
^^^^ This. Is the law. Black and white definition of "private" as defined by copyright laws governing performances.
PS - Public would be defined as anything NOT Private, which is defined above.
Sorry Jeff, I assumed you were better informed. What you linked to has no bearing on the definition of "private" or "public" with respect to Copyright. Indeed - the definition of words can and ARE different within different bodies of law based on the way the word is defined within the text of that law.
You can not take a law about "disorderly conduct" and apply it's definitions to a law on copyrights. The language of one law does not readily substitute for the language in another because key terms are often defined for the purpose of that law within the text of the actual law itself. You also can't assume that language in any state or local ordinance will be consistent with that in an unrelated or even related Federal Code. Sometimes similar laws across jurisdictions are written to coincide and sometimes they differ. When there is a conflict between two laws addressing an identical issue Federal Law supersedes state law, which supersedes local law, unless a specific deferral is allowed.
When a law is written it contains definitions of key terms used in that law, the purpose of which might be to limit or restrict the meaning to avoid confusion and direct court interpretations that are consistent with the original intent of the law-makers. For example, a law about "disorderly conduct" is not very useful if it does not define or cite examples of what is "disorderly." The definitions of any key term that is intended to have a specific meaning are contained within the text of each law much the same way you might write your own contract. For example: The term "we" applies to "this DJ company" only and does not include our vendors or or any subsidiary. "You" shall apply to those person's named herein as "client" or "customer." "Performance" shall mean the specific delivery and completion of goods and services listed on this work order only..
Title17 U.S.C. for the purpose of any royalty owing against the performance of a copyrighted musical work defines "private" to be:
...any event or gathering organized around an individual(s) and their family, friends, usual associates, and circle of acquaintences. Events meeting the definition of private are exempt from the payment of royalties owing strictly to a performance of the work. The definitions of "private" and "public" given in Title 17 apply only to the application of Title 17 and to the issue of performance royalties. They do not carry over to other statutes or to local laws about "disorderly conduct" or to Rick's front yard.
That takes place in a public place....With a paid performer....which constitutes commercial gain
Youre misinterpreting the law. It is not about venue or location. It is about the functionality of the event.
A bride & groom do not receive commercial gain by hiring a dj.
Their event is not open to the general public.
A bar hires a dj to perform to have commercial gain by using said performance to increase patronage for door cover revenue, liquor rev, and food rev. It is an event that is open to the public as these people are not exclusively friends, family, and close acquaintances of the bar owner.
"Commercial gain" refers to the purpose for which the event is organized - (the purpose for which the music is being performed) not the salaries or fees of people employed to make it happen.
A private event like a wedding is not organized to elicit a commercial gain. That is why the language used is: "an individual(s) and their family... etc." The purpose of the event serves only the private interest of a citizen(s) with no commercial agenda.
If you want to argue about a gray area then consider what happens when you organize a fund-raiser for your cousin who has cancer - now it's not so clear anymore.... but, thankfully the venue you hold it in already has a blanket license for public performances.
See how that works?
So, you do not make a profit when you DJ...? Sorry to hear that...
The event has nothing to do with the definition of commercial gain -- it is YOU, as a contractor/company, whatever you want to call it, that is getting commercial gain, out of using somebody else's IP. If the EULA specifically states you cannot use it for commercial purposes, you have violated it.
I suppose you could argue that you are charging your fees for your good looks, and the music you brought with you and played are merely incidentals -- not sure that would hold water though...
I was doing my research -- I was asking the source, what cases YOU have won in court. I don't care what anyone else has done, I want to know what cases YOU have won based upon your logic...
I'm going to leave this behind Rick because there is clearly something more going on here. Where I have doubt about my information I make the effort to verify it - and I have done that. I am fully confident in my understanding of and experience with Copyright law and it's application.
You being misinformed is not a problem for me it is a problem for you. That you are unwilling to make any effort to research or verify what you claim or protest is not a problem I can, or would be willing to even try to solve. You have to step up and help yourself first. This is not a drive-through and I am not waiting to take your order. That you should ignore all the resources available to you just to focus on me personally is something very different than the DJs who need to feel "special" among other music buyers. Whatever that issue is I can't help you with it.
You need to wake up and get a clue. I am not representing my interpretation of the law, what I am telling you is from case law - the actual written decisions of judges who have already decided the issues you keep raising. It is already done - the record speaks for itself.
The only one standing between you and winning is you.
You being misinformed is not a problem for me it is a problem for you. That you are unwilling to make any effort to research or verify what you claim or protest is not a problem I can, or would be willing to even try to solve. You have to step up and help yourself first. This is not a drive-through and I am not waiting to take your order. That you should ignore all the resources available to you just to focus on me personally is something very different than the DJs who need to feel "special" among other music buyers. Whatever that issue is I can't help you with it.
You need to wake up and get a clue. I am not representing my interpretation of the law, what I am telling you is from case law - the actual written decisions of judges who have already decided the issues you keep raising. It is already done - the record speaks for itself.
The only one standing between you and winning is you.
For those who are still hung up on why the law doesn't see it the way Rick does, consider this:
If the bride plays the song herself at her own iPod wedding - does she receive any commercial gain? - No.
If I work for the bride - who is ultimately responsible for anything I play? - The Bride
Is the bride deriving any financial gain from hiring me rather than using an iPod? - No.
In the eyes of the law there is no distinction between the paid DJ and the client, they are the same entity. That legal definition supersedes the EULA because a right codified in law cannot be rescinded by (adhesion) contract. The EULA is a blanket statement that in this one particular instance (performance of a work) would be unenforceable.
If you think that the DJ receiving a fee is an issue - than so to would the the fees of the valet, bartender, waitress, florist, cake decorator, janitor, and/or police detail. The act holds responsible that party who solicits performance of the copyrighted work not the employees who deliver it.
Some verifiable, legal, concrete resources to hopefully counter the misinformation that is going on in this thread:
"Some people mistakenly assume that musicians and entertainers must obtain licenses to perform copyrighted music or that businesses where music is performed can shift their responsibility to musicians or entertainers. The law says all who participate in, or are responsible for, performances of music are legally responsible. Since it is the business owner who obtains the ultimate benefit from the performance, it is the business owner who obtains the license. Music license fees are one of the many costs of doing business."
http://www.ascap.com/licensing/licensingfaq.aspx
"To perform or display a work “publicly” means—
(1) to perform or display it at a place open to the public or at any place
where a substantial number of persons outside of a normal circle of a family
and its social acquaintances is gathered; or
(2) to transmit or otherwise communicate a performance or display of the
work to a place specified by clause (1) or to the public, by means of any device
or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the
same time or at different times."
http://www.copyright.gov/title17/circ92.pdf
"The United States Copyright Law defines a public place as any place where persons outside of "a normal circle of family and friends" are gathered."
http://www.bmi.com/licensing/entry/meetings_conventions_trade_shows_and_expositions
ASCAP and BMI are the US licensing agencies that you would purchase rights to use the recorded material from if you were the event organizer or venue owner where the public performance is to be held.
Clearly, a public place such as a hotel ballroom no longer is public once that space is contracted to be a private space for a private event, whereby the Event organizers and all invited attendees are family and their social acquaintances.
Incidentally, I have contacted ASCAP in the past year to discuss these issues, and have clarified the issue with them - and have also verified that DJ's are NOT issued licenses; only the venues or other entity which is going to receive the quantifiable commercial benefit of the performance.
Yes DJ's get paid money to perform. No this is not the issue when discussing private events since the DJ is not the organizer/owner of said event; the Bride & Groom, etc. would be the organizer/owner. As such, they have legally changed a space from public to private once they have a contractual relationship with the venue to hold a private event with their family and social acquaintances.
"Some people mistakenly assume that musicians and entertainers must obtain licenses to perform copyrighted music or that businesses where music is performed can shift their responsibility to musicians or entertainers. The law says all who participate in, or are responsible for, performances of music are legally responsible. Since it is the business owner who obtains the ultimate benefit from the performance, it is the business owner who obtains the license. Music license fees are one of the many costs of doing business."
http://www.ascap.com/licensing/licensingfaq.aspx
"To perform or display a work “publicly” means—
(1) to perform or display it at a place open to the public or at any place
where a substantial number of persons outside of a normal circle of a family
and its social acquaintances is gathered; or
(2) to transmit or otherwise communicate a performance or display of the
work to a place specified by clause (1) or to the public, by means of any device
or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the
same time or at different times."
http://www.copyright.gov/title17/circ92.pdf
"The United States Copyright Law defines a public place as any place where persons outside of "a normal circle of family and friends" are gathered."
http://www.bmi.com/licensing/entry/meetings_conventions_trade_shows_and_expositions
ASCAP and BMI are the US licensing agencies that you would purchase rights to use the recorded material from if you were the event organizer or venue owner where the public performance is to be held.
Clearly, a public place such as a hotel ballroom no longer is public once that space is contracted to be a private space for a private event, whereby the Event organizers and all invited attendees are family and their social acquaintances.
Incidentally, I have contacted ASCAP in the past year to discuss these issues, and have clarified the issue with them - and have also verified that DJ's are NOT issued licenses; only the venues or other entity which is going to receive the quantifiable commercial benefit of the performance.
Yes DJ's get paid money to perform. No this is not the issue when discussing private events since the DJ is not the organizer/owner of said event; the Bride & Groom, etc. would be the organizer/owner. As such, they have legally changed a space from public to private once they have a contractual relationship with the venue to hold a private event with their family and social acquaintances.
Thank you.
This is also the reason it is possible to hold your wedding in an otherwise public space (such as a park, or public garden) and still be deemed "private." A key word being "gathered" with respect to family and friends; along with any required municipal lease or permit granting use of the space for that purpose.
James and Bob,
Some people are going to believe what they want to believe. Like Bob stated, they are not willing to take the time to do research to prove themselves right or wrong. Yes, there is something more going on here and it is sad. If one happens to know more than some others or something some of the others don't, a jealous/envious attitude sets in. A mode is then put into play to attack the messenger and strategies mixed with lies are played out to ridicule the person.
We should all be learning and sharing from each other. There will be opposing views for sure about the way how one individual does something versus another. That is to be expected. However, when some things are facts but some choose to refute those facts with their own ignorance, that is nothing short of pitiful.
Some people are going to believe what they want to believe. Like Bob stated, they are not willing to take the time to do research to prove themselves right or wrong. Yes, there is something more going on here and it is sad. If one happens to know more than some others or something some of the others don't, a jealous/envious attitude sets in. A mode is then put into play to attack the messenger and strategies mixed with lies are played out to ridicule the person.
We should all be learning and sharing from each other. There will be opposing views for sure about the way how one individual does something versus another. That is to be expected. However, when some things are facts but some choose to refute those facts with their own ignorance, that is nothing short of pitiful.
The problem is there is no direct statement anywhere that says what we need it to say. There is one (actually many) for running a red light, but not for music use. It becomes inference and case law and following a bunch of pointers to try an get an answer (try reading some of the passages Bob pointed to in copyright law).
The music companies won't, as it is in there interest to keep us guessing and to profit from those that either aren't aware or willing to skirt the not so cleanly written rules. Maybe one of the DJ associations has to codify things and get some legal backing to put up it all up in easy to read terms.
The music companies won't, as it is in there interest to keep us guessing and to profit from those that either aren't aware or willing to skirt the not so cleanly written rules. Maybe one of the DJ associations has to codify things and get some legal backing to put up it all up in easy to read terms.
Damn, you guys will spin this as far as you can, to make sure you don't have to pay the piper...
This is why I hire REAL lawyers and accountants. Otherwise I'd hire Bob and Canute for $15 an hour... xf
This is why I hire REAL lawyers and accountants. Otherwise I'd hire Bob and Canute for $15 an hour... xf
James,
I was focusing on commercial use. Commercial use is simple -- you make a profit. The bride doesn't make a profit, but you do. So, you have profited off of someone elses IP, when they haven't granted you those rights to do so.
I write software and music -- it's what I do. I've taken a few people to court over these issues. Who I take to court, depends on whether I can expect to recoup my legal fees, and possibly get a settlement.
Here's what I would call a decent example:
Let's say you buy one of my software products. You install it on your computer, then sell that computer as is -- you have just violated my EULA that you agreed to, which says transfer or sale is a no go. You must remove the software, before you transfer the computer to another person.
I also write music, and it plainly states you cannot use it for commercial use (for profit), unless I give you those rights. More than likely, I would be happy to do so, providing I got some royalty payments.
You guys are skirting the issue of commercial use (for profit). Perhaps one day you'll get sued, and understand what it means...
I suppose if your works are not contracted with BMI, ASCAP then I guess there may be a loophole whereby your personal EULA would come into play.
But those works under the licensing of those organizations operate based on the copyright laws which make it clear that the use of the works are allowed in private events under the circumstances as provided by the USC laws.
However, I would say there would be an argument that could be made in court that the laws governing coprighted works may supercede any EULA you have attached to your work.
But those works under the licensing of those organizations operate based on the copyright laws which make it clear that the use of the works are allowed in private events under the circumstances as provided by the USC laws.
However, I would say there would be an argument that could be made in court that the laws governing coprighted works may supercede any EULA you have attached to your work.
Performing a musical work is not "use" its "performance" which is a specific kind of use given unique treatment under the law. You would not have grounds for commercial use if a DJ plays one of your songs at a wedding. It is only actionable if the work has never been published or sold. Once it has, your only recourse is a performance royalty, and only then if it was performed publicly as the law describes "public."
Software and music are not analogous the way you presume. Some laws about music copyright were written long before computers even existed.
You have an example of a contract but, not the copyright or performance right in musical works.
If the work has been published (essentially sold publicly) - then any DJ who obtains a legitmiate copy can play it without your permission. Playing it is a performance and if that performance is private it is not a commercial use no matter how much the DJ gets paid. Sorry - you're just plain wrong. If they play it at a wedding you are entitled to no royalty.
If they play it at a club then the only commercial use you have action upon is public performance and you are only due a performance royalty (and there are prescribed formulas that determine how much that can be.) If you can not be identified or located then it would be hard to sue for damages should someone play your song publicly without obtaining a performance license from you, especially if they can prove they made a serious effort. Maybe if it was NBC - but John Smith DJ isn't presumed to be that sophisticated when it comes to performance licenses. This is why composers and authors join ASCAP - to make the management of these royalties easier.
In theory, a club DJ working under an ASCAP license is supposed to check the label on each track to be sure it is an ASCAP member's work. ASCAP and BMI represent the majority of work any DJ is likley to want to perform. The risk of coming into possession of or wanting to play an unpublished or unrepresented work like yours is slim to none, although it sometimes happens. More often, it is a DJ who records a track off the radio or downloads something that has not yet been released.
Not only that Rick - once your song is published I can make new recordings and pay only the statutory compulsory license fee. Note the word "compulsory" meaning you can't refuse the licesne - your only recourse is the statutory fee. This was done to allow the broadest access at all levels of society to art like music, rather than having access controlled by an elite few as it had been in ancient societies. The compulsory license applies only to musical works - not software,video, etc.
No we are not. You are trying to substitute colloquial language for legal terminology and attempting to unify different laws which are written and act independently.
Furthermore, some of what affects copyright law is actually restrictions contained in other laws unrelated to copyright. For example, the reason there can be no AVLA type recording license for DJs in the USA is because Title 15 USC (Anti-trust Law) prohibits any one agency from having a monopoly interest in the licensing of mechanical rights. It would take an act of Congress to change that - and no one wants it to change because Title 15 is about big business - not copyrights. (See: monopolies and Standard Oil)
A law and a license are not the same thing. A license is a contract. Some licenses are prescribed by law and others are not. A license term which attempts to supersede a law is usually invalid.