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Client wants to assume music liability
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[James Disch] “This confirms what I was thinking. There is no way around this”
I am not a lawyer (although I certainly spend a significant amount of my time around them) but I will raise some questions for you and others to think about.
Is everyone who “touches/uses” the “uncleared” musical recording in question responsible and/or equally responsible legally/civilly?
If
the client is the producer, you are performing your job as a work for hire. Is the PA responsible because they were told to buy the CD? Is the assistant editor responsible for pulling the track off the CD into the NLE? Is the editor legally responsible for the recording use for following the producer’s instruction by syncing the recording to video? Did any or all of them need to be shown proof that the appropriate rights were obtained? Who was responsible for obtaining clearance and did any or everyone need to be shown that proof to perform their job function? Does the Producer bear the all, most of the responsibility, or is all responsibility equal?if
You are the producer and a client asks you to use music that’s not cleared. Who has the legal responsibility in this situation?Are both the above legally the same? How is legal responsibility established?
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I am dealing with almost this exact situation right now. Client wants a trailer for a short film put together. He brought me some songs from a local band, and “is in discussions” to get the licenses. I am expected to edit as though he has the licenses, and he’ll make sure he has them before posting the trailer online. Time crunch of course. I have made it very clear, in writing, that it is illegal for him to broadcast the video without getting the licenses for the music used. I will gladly create a spec version with a watermark for him to approve, but won’t let the final product leave my hands until I have proof of licensing. He’s not happy. I get the “I’ll assume all legal responsibility” speech every day.
If you tell your client you won’t do it because it’s ILLEGAL, and they don’t respect that, then perhaps they’re not worth keeping as a client, especially if you explain that YOU can be held liable, regardless of what he signs (as far as I know). Do this “small” favor for them once, see how many times it comes back up. The only agreements you can have them sign is to limit how many times, when and where they can show the video, and an agreement to pay any and all legal costs you incur should something go wrong, which may or may not stand up in court when you go to recoup your costs. (I am not a lawyer, check with your own atty before signing anything.)
Sucks to lose a client over something so trivial (to them at least), but better to lose a client than your entire business. Is there any way just to get the license for the song and add it to their bill?
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[Craig Seeman] “You are the producer and a client asks you to use music that’s not cleared. Who has the legal responsibility in this situation? Are both the above legally the same? How is legal responsibility established?”
Both, but especially the one with the deepest pockets. The one with shallow pockets is mere cannon fodder that will be dispensed with with merely a volley or two.
Ron Lindeboom
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[Todd Terry] “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.”
Since Tood is ill at ease about getting all holier than thou, I’ll say it clear and simple: anyone who creates any kind of content for a living (or even for fun) and doesn’t respect intellectual property rights, is an IDIOT — one whom I hope will quickly get their stuff stolen so they get a little relativity.
Now where’s my coffee???
A precaffeinated and thereby cranky,
Ron Lindeboom
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Rob this does bring up a bunch of issues and approach to the issue itself.
I was editing a historical documentary. The video came from stock as well as private collections. Nearly all had window time code. Most “providers” would charge by amount used so it wasn’t paid for at that point in the edit.
The producer also was using period music coming from old recordings. For the most part, none of the rights had been cleared at the point of use. The project took a few years BTW. I was very much privy to listening to some of the rights discussions as the producer was often making the phone calls during the edit. Given the age of the music it was often very difficult for the producer to track ownership of the various rights (publishing, recording, etc).
It’s often not possible for all clearance negotiations to be completed at the time editing commences.
Of course all clearances were completed before the piece aired on Discovery channel and went on to international distribution followed by VHS and DVD sales.
Do you (or others) believe one must not use elements until after all clearances are completed and signed?
What about the use of “temp” tracks? Should that be a practice we cease to use?
I don’t doubt there’s even been occasions where the “temp” track become “the” track and then clearance was sought and completed. -
This is what’s frustrating to me about this whole thread. It is not the editor’s responsibility to dispense legal mandates to clients. That is far beyond the scope of the editor’s role.
I know lots of editor’s think producers are useless, but music clearance is the responsibility of the producer and client. What’s next? Will editor’s start demanding to see the network’s contract with Extreme Music or Killer Tracks? Just because it’s not popular doesn’t mean it’s not intellectual property. If said library music contract expires, will you all start calling your old clients demanding masters back, including all copies of spots and shows? NO, you won’t. You’d lose all clients if you tried.
I’ve licensed dozens and dozens of popular songs in the last 10 years through my network clients. In order to obtain the licenses, we had to make rough cuts, which are technically illegal until the license clears. That’s just how it works. That said, no network will allow anything to air without music clearance. Networks have people with dedicated jobs just to obtain clearance.
It’s not even that expensive to license a song for use in a small private event. There are many smaller services that do just that on this forum listed in previous threads. I’m sure if you rate all our time at $100 an hour, the amount of time we’ve all spent talking about this would more than cover the cost to license this song for the corporate event in question.
And just to be clear, I do not endorse creative theft. All music I’ve used in my completed, aired work was bought and paid for.
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[John Davidson] “It’s not even that expensive to license a song for use in a small private event.”
Hmmm… maybe it depends on the song, I dunno.
Last year a corporate client wanted us to pursue licensing in a similar situation for a private event… they wanted a specific track of an almost 20-year-old (and not all that popular) C+C Music factory song. It was for a one-time usage for a private event. We told them it would be expensive, but they wanted to pursue it anyway. By the time we found all the right hoops to jump through, the rights were going to be something in the neighborhood of $35,000.
My other horror story involves country music star John Anderson. Several years ago we produced a television commercial for a line of barbecue sauce he was selling. Using his own known music was proving impossible (the track he wanted to use, he wrote with a now-deceased partner, they jointly owned the publishing rights, but Sony owned the recording, and it was getting very complicated). In the end John composed and performed a similar-sounding track just for the spot, because at that point the red tape was getting to be about waist-deep and growing.
T2
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Todd Terry
Creative Director
Fantastic Plastic Entertainment, Inc.
fantasticplastic.com
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Oops, maybe we should bill $35,000 an hour then :-).
There are some wild cards when it comes to clearance. A Kidd Rock song was 80k for one week, and a Boys Don’t Cry track was only 4k for a week, but this was air on one of the Turner Networks, not a private event. I’ve had great luck with 80’s music, but I know to stay away from C&C now!
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[John Davidson] “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.”
You guys are playing roulette…the house always wins…eventually.
What you are suggesting is simply illegal.
A client will certainly be the focus of any lawsuit as they do, usually, have the deepest pockets. However, I’ve also seen production houses the object of judgments that are structured as a percentage of gross for some number of years…
I’d consult a copyright/trademark attorney to get a final answer to whether or not the client can actually assume full responsibility and hold you harmless…I’d bet there would be some sort of a document involved and they would have to lie in that document to in effect make you an “unknowing” participant…
It’s like being hired to do anything illegal…the very fact that you seek a hold harmless agreement demonstrates that you clearly know what’s going on.
This conversation and all of its variations get tiring…
It’s illegal. You’re in the content business…why is it that you’re so willing to rip off someone else in the content business?
…I’ll bet that the same people who are doing this sort of thing are also rock-steady on the fact that they own all their raw footage when they were paid for every hour they put in acquiring it by their client…because of course “that’s the law”.
TimK,
Director, Consultant
Kolb Productions, -
We had the same situation a few years ago and we solved it this way..
We cut the piece together with the music they wanted. When we were done, however, we gave them a master without the music. It was now their task to figure out how to play the same music from some device or, if they have any kids who are into pirating music and putting songs together, they can do a custom DVD for them.
As far as a legal document, have them purchase an insurance policy that will pay all of your legal expenses in the event that they (you) are busted. Or, have them put $50k on deposit with you.
Best thing is to say “You are asking me to break the law”. the conversation should end right there.
ASCAP-BMI has a system in place that rewards hotel A/V for info on companies that use unlicensed music at conferences.
Steve Wargo
Tempe, Arizona
It’s a dry heat!Sony HDCAM F-900 & HDW-2000/1 deck
5 Final Cut (not quite PRO) systems
Sony HVR-M25 HDV deck
2-Sony EX-1 HD .
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