Was the party paid for or sponsored by the filming company? Most of the time, that's the case, which kinda blows the hole in the whole fair use argument. And lastly, were the ‘actors’ paid by the film company or producers?
Usually, I'd just wish a pox upon both parties, and let them sue each other into oblivion. This time, though, I think the music industry has a pretty easy case.
The question is if the use of the music is incidental. If you’re filming a documentary, interviewing someone on the street, and you can hear a song from some guy in his car at a red light, it’s incidental. Even then the copyright holder may want you to pay, and it all depends on how well funded you are to defend yourself. It really is a racket. One documentary had a second or so flash of the The Simpsons on a TV near someone they were filming, and the owners of the The Simpons wanted money.
But if you’re filming a porno and the background music through the whole thing consists of various copyrighted songs, you need to pay up. That they’re lip-synching especially points to the music being an integral part of the larger work, not incidental. License for public performance through ASCAP/BMI doesn’t translate into a license to redistribute the songs with a video.
In a nutshell, the porn purveyors are screwed.
Sorry, couldn’t resist.
>>The porn industry is really bad about getting those done, or claim that they don’t need a permit for private property. The porn industry is really bad about getting those done, or claim that they don’t need a permit for private property.
What the heck is a “filming permit”? Just another unjustified local gov’t money grab? Why should you need one on private property?