Monday, August 13, 2007

The 'Music is Included'? How can that be? (Updated)

I encourage you to exercise extreme caution when being pitched for website design and photo/audio packages. Just last night, I recieved the following e-mail blast:

Present Your Artistic Vision &
Unique Portfolio With Elegance and Style

Petruska Photography just did... Take a peek at their website

[click photo]

It's A Photographer's Dream...

A Professional Website With
A Premium Slideshow Photo Gallery & Music
For Less Than A Cup Of Coffee Per Day!
(Gallery & Hosting Incl)

Psst... Does your website need a design makeover?

Impress your clients with an optional Story Book or a
built in photo ordering form.

Let our elegant designs showcase your services.
We look forward to hearing from you... Call Nerds Software Today!

Now, Pat and Hans have nice photos, and the pages look good. I don't personally prefer the "page turning" style, but I am sure that it appeals to their audience. In addition to the "Copyright" tab at the bottom of their site, which details that their work is protected by copyright, is a nice link to the site designer, as well as three links which begin three well known songs.

All three songs are very popular songs, they evoke certain emotions, the first is by Lifehouse, the 2005 hit song "You and Me". The second is Seal's 1994 smash hit "Kiss from a Rose", and the third is the Goo Goo Dolls' somewhat lesser known "I'll Be". All three make you feel differently about the images you are seeing. A second sense - aural - enhances your visual experience.

So, I wrote to Nerds, and asked them:

Mark --

How much does it cost to have the audio on the site as well as the design?

Within 15 minutes, I get a response from Robert Pritchard (his colleague), with the subject line:
Subject: Music is included
followed by a sales pitch email, that reads, in part:
Our Design Team would be happy to design a custom website for your use for only $399.00 + a $50.00 per mo. leasing fee. Please note that the first year leasing fee is payable in advance....Our pricing structure is setup to help photographers spread out the cost of a custom website over several years. Typically a custom website for photographers would cost at least several thousand dollars...You will notice that many of our clients have added a Story Book Intro (with 6-8 automated flipping pages) giving them an additional “WOW” feature showcasing their portfolios. (an affordable option at $250.00)...Our clients have been amazed at how fast, how simple & how little they had to do!!! A brand new website is launched in 10-14 days from the day we receive your fine photography & deposit."
They then include other sites which showcase their talents, like uses the song "Unforgettable" to enhance the experience, uses Iz's (aka Israel Kamakawiwo'ole) extremely popular "Somewhere Over the Rainbow" recording, and uses The Corr's top ten hit "Breathless". In addition, all have very defined copyright/IP notices on their sites.

None of these photographers are probably aware that, in any way, there is a problem with having these audio tracks on their sites. Just as many of their portrait and wedding clients may well believe that they are not doing anything wrong by taking their prints down to the one-hour photo lab and making copies. Yet, since I know that a Statutory license is not available to either the photographers, or the web design firm, and certainly that fee above for design can't possibly include the licensing for the above mentioned hit songs, while I don't definitively know that they haven't secured advertising rights for the use of those songs for each individual customer, or all their customers, the likelihood is that they have not.

When I wrote Robert back, I asked:
Robert --
I like the added experience of the music. Some of them have nice instrumentals, others have more well-known/popular music. Can I choose the songs I want from music that I like, and that appeal to my clientele?
Robert responded 5 minutes later:
The quick answer is yes.
He then volunteers that if I would like any additional information, he'd be happy to talk to me.

I have music that I use, that I've obtained a license to use, from a company that is affiliated with the Professional Photographer's of America - Broken Joey Records. Joe, the owner, I met while speaking at PPA's ImagingExpo last January. He has a wide variety of copyright cleared music, because either he, or his partners wrote, produced, and performed the music, and grant a limited license to photographers, for a very very reasonable fee. Joe wrote an article here on the subject. There are also other sources for rights-cleared music.

Exercise extreme caution, and where vendors of yours are including copyrighted components into the work they produce for you, whether audio, video, or other graphics or still images, make sure that you have proof that your vendor has the right to re-license that material to you. Ultimately, in the end, these photographers will be on the hook for these alledged infringements.
UPDATE: One commenter noted the BMI service for licensing audio. I went through the process, and BMI's service, for a website (I made selections that are in line with a photographer's website), has a minimum annual charge of $299.00. When I indicated, as I was required to do, "Please indicate your estimated annual revenue:", I chose, first, $60k, which made my actual licensing fee $1,050. When I changed it to $25k, the annual licensing fee was reduced to $437.50.
Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.


Simon Terry said...

The third song is by Edwin McCain, not Goo Goo Dolls.

I see copywrited music on websites ALL THE TIME. To my knowledge, there hasn't been a single lawsuit filed, or C&D sent out to photographers (the RIAA is too busy with college students right now,) but that doesn't mean it will not happen.

But, the music industry MUST share some responsibility. They make it IMPOSSIBLE to purchase a license to sync with a photo slideshow. The DWF tried to get a program set up that would create a clearinghouse for copywrited music for use in these circumstances, but the music industry took their ball and went home at the 11th hour. The music industry continues to shoot its own feet off, to run away from money making opportunities and to do everything it possibly can to ensure that piracy/copyright infringment is the only remaining option for photographers and many other professions.

There are no clear guidelines here, can I purchase a license for a well known, contemporary song to be played behind a photo slideshow? NOBODY KNOWS! Not even the lawyers.

I know that if I shoot something and someone wants to license it, I will repond quickly and professionally with documentation, pricing and license terms. I cannot get that from the recording industry. At all. Not any of it.

It's frustrating - an eye for an eye makes the whole world blind.

Anonymous said...

I believe both BMI & ASCAP offer music licensing on websites as far I understand it.

BMI (listed as 'new media'):

Specifically, on the right-hand side of the page, click on 'Small sites may prefer getting their BMI licensing online using our Klik-Thru® digital licensing application.'

ASCAP (listed as 'new media & Internet licenses):

Specifically, see 'Interactive 2.0'.

I *think* this would suffice for such a sight as the Petruska Photography one mentioned in your blog. Please correct me if this is not the case. I am looking into the ASCAP Interactive 2.0 web license for my own site and prefer not to waste my money if this license does not cover me. Of course, I will be meeting with my attorney before any money is spent.

Simon Terry said...

Basically, both of the licenses you linked only cover the songwriting, composition etc. Not the performance.

My understanding (I Am Not A Lawyer) is that if you purchased one of those licenses, you could then have a local band/friends perform a licensed song and then record it, then play that recording on your site.

Neither of those licenses cover the actual performance by the band.

Essentially, you are licensing "Heartbreak Hotel" but not Elvis singing it.

For that, you need to talk to the RIAA. And down the rabbit hole you go.

Simon Terry said...

Here is the relevant text from both the BMI and ASCAP sites that detail that their licenses DO NOT cover the performance of the song, just the writing/arrangement

From the BMI Web Site FAQ:
In addition to the performing rights organizations that represent the writers and publishers of the musical works that you use on your web site, you may need to contact the record companies and/or the RIAA regarding reproduction and/or distribution of their musical works.

From the ASCAP licensing FAQ:
ASCAP licenses do not authorize the reproduction, or distribution of music or sound recordings, or the public performance of sound recordings (as distinguished from the music contained in the sound recordings). To obtain these rights you should contact the Harry Fox Agency, Inc. (the wholly-owned licensing subsidiary of the National Music Publishers' Association, Inc.) or the copyright owner for authorization to copy and distribute the music, and the copyright owner of the sound recording (usually the record label) for authorization to copy, distribute and perform sound recordings. Information on these important rights may be obtained from the Harry Fox Agency, and the RIAA, the record labels' trade association.

Mike Pipes said...

If you listen to the music on those sites VERY closely you will hear that the performances are not the original artists. They are extremely close but there are nuances in the voices and the instruments that give it away. So, if the web design company has licensed through BMI or ASCAP, they're in the clear... Maybe not making much money since the license is going to take a chunk of that $50 monthly lease agreement, unless their license allows them to use those songs on multiple sites.

cameron said...

It depends on the audience.

PDN has surveyed Art Directors and Art Buyers about web sites - do's and dont's - two things came up as a strong dislike -

Flash intro's and MUSIC.

Personally, there is no way I would have music on a site.

Maybe for wedding shooters - but the commercial world - no way.

Anonymous said...

I've run into this many times with wedding photographers... here's an example:

Click on the flash "faq" link and you'll learn that for $300 you can get a custom DVD "set... to the music of your choice"

How is that possible?

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