Pro - DJing for pay is a COMMERCIAL use, no way around it. I don't know where you get the idea it isn't. Commercial use is any use where any income is generated due to the item. I'm not saying I don't do it, but their EULA is there to see. Only talking about the iTunes EULA here. Songs from other sources differ.
The above statement highlighted in red is where you are going wrong. "Any income" and "due" are concepts you don't correctly understand in relation to both the EULA and Copyrights.
First, I didn't just "get the idea" - I studied it in graduate courses on broadcasting law and copyrights. What you are over-extending is your notion of what is commercial. There is in copyright (and by extension the iTunes EULA) a correct legal definition of
commercial use and it is not so simple as just money changing hands. The liability in copyright rests in the incident of the performance and is independent of any individual paid or unpaid to facilitate that performance. In other words, there must be a specific right reserved, and a derivative result that violates that right for an infringement to exist.
Consider the logical extension of your misunderstanding: under your definition all private performances by cover bands would be an infringement. Likewise, so would singing in the shower if someone gave you $10 to do it!
The mere exchange of money is not what defines commercial use.
You are a mobile DJ and you are paid to provide labor (not a derivative product or enticement) at
private events. Your labor provides the very same playback (performance of a work)
reserved for you clients as exempt under USC Title 17. Your fee (or lack thereof) for this service is unrelated to the copyright concerns of the work being performed. You are being paid for the labor to exercise your clients exempt rights and it doesn't matter whose music collection you play from. It doesn't even matter if you stream it live from iTunes.
As long as all you are doing is playback - ALL PRIVATE EVENTS are exempt and while there may be a commercial exchange of your labor - there is no commercial gain derived from the music played. It is no different than if the bride plays from her own iPod. No gain is derived by virtue of the music. Your personal gain is derived by showing up and taking over the labor role.
PRIVATE is legally defined in USC Title 17 with regard to performance of copyrighted works as: {Paraphrase}
"any event whose attendance includes an individual, and that individual's family, friends, associates, and circle of acquaintances." The act further cites "weddings" as a perfect example of a private event.
Unless and until you record that performance and start handing it out to clients or guests, broadcast/stream it live or in delay, you have infringed no copyright, incurred no liability, owe no royalty, and manifested
no commercial use of the works performed. The law doesn't reserve any rights for the copyright holders in that situation. The terms being:
Private, and
performance of the work only.
It has never been the intention of Congress or the Copyright Act to allow the commercial interest of copyright holders to intrude in to the everyday lives of private citizens. That position was reiterated (harshly, and to the dismay of the music industry) both in 1976 and again at the introduction of the Home Recording Act.
When you play a club or other public performance things change a little - but, it still doesn't affect the DJ. In a club the commercial use is
food and beverage sales with music playback used to entice sales. It doesn't matter whether the music is a cover band or a DJ or even if they are paid to perform. What matters is that the music is copyrighted and is being used to entice the sale of food and beverage, or admittance (cover charge.) The commercial user in this instance is the venue not the DJ - even if the music collection belongs to the DJ.
Your fee as the DJ facilitating playback is almost
never what defines
commercial use. Even if you gave a public DJ concert or donated your services for a charity concert - it would be the total revenue generated or the total exposure of the works in question that would be the basis of any royalties - not your specific fee.
The performance (playback) of a copyrighted work is evaluated on the merits of the law and ONLY the rights reserved under the law. The copyright law reserves rights for the user sof copyrighted works just as it does for the copyright holders. Your fee for a service, who's CD or MP3 file it is, or how you facilitated it's playback is not generally a factor when it comes to a performance.
Your music collection is also your personal property (except where provided by a corporation), just as a carpenter's tools would be his own personal property. Your trade as a DJ is irrelevant to your right to rip your CDs to a hard drive, purchass etracks from iTunes, or to make backup copies of your hard drive. The RIAA knows this and represents their position with respect to
serial copying meaning: a single user with 10 backup copies is different from10 copies created for multiple users - the latter case being piracy.
Serial copying is a commercial use because you are producing derivative works for the express purpose of expanding your inventory. The right to produce inventory is expressly reserved for the copyright holders in ALL circumstances but
Fair Use.
There is almost no circumstance in which the
Fair Use clause would apply to a DJ operation. Protection for what you do would generally only come from your own personal use rights or the private nature of your client's event, combined with benevolent intent and diligent care. Thus, ripping a CD given to you by a bride so you can play it from you software presumes that you will delete the file when the event is over. Do that, and you have
damaged no one's copyright. (Notice I chose the word
damaged not "violated.") Conversely, if you collect all these little gems over the years you are essentially file-sharing with your clients!
Intention and a
policy of responsible action are always relevant in copyright. There is nothing "technical" about copyright - it is measured by damages.
The format you choose to put your music in to facilitate playback does not matter. In fact, the HRA infers Congressional intent in the digital age based on the same transfer rights reserved in 1976 for broadcasters using carts or tape media rather than phonographs. The issue in format transfers again is
serial copying - and whether the purpose is to facilitate playback or backup as opposed to increasing inventory without additional purchases.
Check out karaoke manufacturers like Sound Choice who are employing IP strategies similar to Getty Images and you will find that what they actually pursue is
trademark in
public venues because when it comes to individual DJs they are without standing on the issue of copyright. They lack that standing for two reasons: most karaoke DJs perform at private events, and then in the public venues if the DJ owns the music collection he retains the same personal property rights of any individual. That leaves only the venue liable for the commercial use of a trademark. What makes this an exact copy of the Getty approach is that there is only an unsubstantiated claim and the treat of a civil suit. These are cases that can be easily won - but at a cost that exceeds acquiescence. The plaintiff essentially wins out of court by scaring the KJ out of business or to the cash register to buy legitimate product. Do the ends justify the means? ..all a matter of personal perspective I suppose.
If you research old iTunes/iPod commercials you will see that Apple is quite comfortable with DJs and the fact that iTunes is a great place to get your tracks, and a great way to get them played. The commercial use clause of the EULA does not apply to you as a wedding DJ because that activity does not constitute a commercial use.
