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 www.imaginique.net/ImaginiqueWeddings.htm uses the song "Unforgettable" to enhance the experience, www.jpatrickphoto.com/JPPortraits.htm uses Iz's (aka Israel Kamakawiwo'ole) extremely popular "Somewhere Over the Rainbow" recording, and www.stantonsphotography.com/ 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:

John,
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.

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UPDATE: One commenter noted the BMI service http://www.bmi.com/newmedia/entry/C1168 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.

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