Client wants to assume music liability

[Todd Terry]

[James Disch] “Is there anything I can do or have him sign that will protect me and my company?”

Nope. Not by a long shot.

If you borrow someone’s car, but get stopped for speeding, you can’t hand the cop a note from the car’s owner that says he gives you permission to drive as fast as you like and that he will take responsibility.

Don’t do it.

T2

__________________________________
Todd Terry
Creative Director
Fantastic Plastic Entertainment, Inc.
fantasticplastic.com

[John Davidson]

This has been covered so much it’s not even funny. Will this be put on the internet or television? If it’s an
internal thing, is there really any chance that the artist or one of his/her representatives are going to come along and watch this video and sue, really? Really?

Every single network uses unlicensed popular music for upfront sizzle reels and are played in front of thousands of advertisers every spring that, if they can get away with it, I’m pretty sure you guys can do it. Although now that you’ve told the whole world what you’re doing…..

Sure, it’s not necessarily right, but to lose a client over something that you’re merely an editor on is stupid. The producer is responsible, not the guy pushing buttons.

John
Magic Feather Inc.

[Todd Terry]

If it’s COMPLETELY internal, then yeah, you’ll get away with it. But EVERY single corporate video we’ve ever produced ended with the client saying, “Oh, now give us a version we can put on the web.” Every single time. THAT’s where you’ll run into trouble.

But internal? Will you get caught? No. But the question wasn’t “Could I…?” or “Should I…? Rather the original question was asking whether there is something you can get them to sign to take all the responsibility.

The answer to that question is still “No.”

If you are an employee of the company, there are few worries. But if you are a legit outside production company contracted to do the gig, your responsibility and liability is much greater than that of just a “button pusher.”

And by the way, the “chances of getting caught at it” is a completely separate issue from the legality of it, or whether it’s “right.”

Which it isn’t.

T2

__________________________________
Todd Terry
Creative Director
Fantastic Plastic Entertainment, Inc.
fantasticplastic.com

[Mark Suszko]

In these internet times, if you make it, and give it to someone, you cannot promise it will never wind up online somewhere. You could ask people like Pam Anderson, Tonya Harding, Paris Hilton, Rob Lowe, etc. etc. etc. if they ever “expected” their “private home movies” would get out on the net. Yeah, your client is not exactly the same as those celebs. I’m exaggerating to make a point. But know that even something done for “internal company use only” ceases to be in your sole control the day you hand over the tape, disk, file, etc. and so your production reputation then rests in hands you may never even know about, and circumstances you never knew about. YouTube has literally thousands of clips on it right now that a lot of people regret.

So don’t take the “internal use only, we’ll just keep this our little secret” excuse as anything to stake money on.

And yes, it’s the camel’s nose under the tent; if you agree to that use, they’ll keep pressing for more of the same kinds of abuses. Offer pre-cleared sound-alikes, these are very easy to get nowadays. I would tell them you are not a legal professional, to have their lawyer or company legal department draw something up.

The company lawyers will kill this problem for you more effectively than you ever could.

[John Davidson]

Todd: “If it’s COMPLETELY internal, then yeah, you’ll get away with it. But EVERY single corporate video we’ve ever produced ended with the client saying, “Oh, now give us a version we can put on the web.” Every single time. THAT’s where you’ll run into trouble.

In that case, you do like I did last year with ABC’s “In The Motherhood” Upfront trailer – you make a version with library music (or some of those ‘free’ Soundtrack Pro cuts) – and you bill another day for the work.

The production of the piece isn’t where it’s illegal – we made tons of spots over the years with pop music that didn’t get cleared for air, and weren’t licensed. The illegality comes from the broadcasting of the work, in which case the corporation or persons that authorized broadcast and/or uploading are responsible. With that in mind, the guy can’t make calls over what is done with the work he cuts. If that WERE the case, none of us could edit anything, ever, because we couldn’t guarantee where, when, and how that work would be used. Clearance may only for one week, or one month, or on one network, etc. We’d all have to request masters back of all work delivered to clients after the clearance period, which is highly impractical. That’s why the responsibility of clearance falls on the broadcaster or executive producer (the guy who pays). The editor is not a nanny, and to lose a client because of that would be silly. And that’s also why there’s nothing that can be signed to clear the editor, because it’s not the editors responsibility to worry with that kind of stuff. He can only warn, at most, and suggest the producer consult with their legal department or lawyer.

Don’t lose a client over this. If you get seriously worried, have a backup with free music and give it to them with the final delivery. If you’re STILL worried, use blank slates and labels. And for reference, this has been nearly every single post house in Atlanta, as well as most of the ones in LA. At no time did any editor suggest to me or any of the other dozens of producers I work with that we should deal with clearance.

John
Magic Feather Inc.

[James Disch]

I know the question of “can I use copyrighted music for my video” has been covered to great lengths. Every professional in this market should know the answer to that. The question was: Can the client, (producer) take on the liabilities of using such music.

Thanks for your responses. This confirms what I was thinking. There is no way around this. Maybe I’ll cut the video to a similar tempo and let him do what he wants with it after that…

http://www.rapidlightproductions.com

[Steve Kownacki]

[James Disch] “…he will sign anything I need so the liability will fall on him.”

Well, that would be a mechanical sync rights form from the publishers. Simple.

Steve

[Craig Seeman]

[Mark Suszko] “So don’t take the “internal use only, we’ll just keep this our little secret” excuse as anything to stake money on. “

A video is edited with a “temp” music track of well known recorded music.
It’s handed off for approval.
Person receiving master says he needs to show it to a few people for approval.
“A few” people is a corporate event of a very large company with several hundred people.
The video is about how they’re going to tighten the belt and pull together (after the massive round of layoffs).
An upper mid level manager (just not quite high enough for the golden parachute) who was there is given his walking papers the next day.
His cousin is the accountant for the record label owning the recording.
He tells his cousin who tells the record label.
Another employee taped the event on cheap camcorder and posts on the web.
Next thing you know the record label has found the video online and has an unhappy ex-employee looking for vengeance and there’s a team of lawyers.

Who wins, who’s “guilty?” What’s the truth?
I wont say anymore so don’t ask questions. Think about it though.

[Craig Seeman]

A head honcho at one of the bigger multi national companies in the world is retiring.
They bring in the producer of a nationally known TV show.
The producer brings in the broadcast elements used in the TV show.
He likely was hired for both his talent and access to these elements.
Major entertainment figures are hired to be part of this.
Huge sums of money are spent.
Producer says to editor they’re not going to even try to get clearance for the elements but swears up and down it’s one time to show to a small (and very elite) group of people. Just a very select group of co-workers (upper most management) of the head honcho.
Producer really watches his backside. There’s only a master. Absolutely no dubs are permitted and that master stays with the producer. It’s shown and then destroyed. All elements generated in creating the video is destroyed (minus the ones that belong to the show they were “borrowed” from).

True story? Is your client following this level of caution?

[Todd Terry]

Seems this discussion diverged into two different questions and schools of thought…

1) Will I get caught or is there any way to absolve my liability?

The answer to this question is fuzzy. There are ways around it, and if done right, no one may be the wiser and you won’t get busted for it.

And…

2) Is this an ethical practice?

Easier answer. No.

Not to get all “holier than thou,” but I find the “It’s only wrong if you get caught” attitude a bit unsettling. All of us in here have produced video which we own and retain exclusive rights to. How would you feel if you discovered after-the-fact that the footage that you owned, restricted, and made your living from cropped up somewhere in some yahoo’s project that you’ve never even heard of and without your permission to use it? Not good, I bet. I sure wouldn’t.

T2

__________________________________
Todd Terry
Creative Director
Fantastic Plastic Entertainment, Inc.
fantasticplastic.com