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Copyright video question
Problem I am sure many of you have had… I have a client who is very persistent in wanting to use copyrighted material, i.e. old movie clips and or music, in a video production that will be shown company wide in multiple locations across the USA. It is not a public facing video, but I am afraid it will get online. I have advised strongly against using any copyright footage (non-stock), but they are persisting.
Is there any kind of form that I can make them sign that holds their company liable for any content and gets me legally off the hook? It may come down to them going to another shop if I do not agree to put in some of what they want. I think if I had a form like this their legal dept. may step in and forbid the usage.
Thanks for your help!
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15 Replies
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While I’m not a lawyer, at my best guess, you could make the contract a work for hire, making them the producers and responsive for the rights clearances.
If you are the producer/creator you are legally responsible and, at best, can sue them for what you were sued for. That wouldn’t absolve you any more than the getaway car driver is absolved for a bank robbery.
BTW I once worked at a long gone post house that used material for a “one time” showing to a closed corporate audience. Shortly after one of the employees was fired, happened to have a VHS copy of the video and showed it to a lawyer friend for vengeance. These days it would be even easier for a copy to wind up on YouTube or, in the hands of a lawyer.
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Thank you for your advice. Yea, these days even in house videos can easily get posted by any employee with a few clicks. I make it a policy never use copyright material of any kind without the rights, but am surprised how many companies think it is a great idea.
Thanks again.
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There is no form that absolves you of responsibility and puts the liability on the client.
You can’t get caught speeding in a friend’s borrowed car and give the cop a note that says your friend agrees to pay the ticket, just send it to him.
You can’t legally work as a hitman and not get charged with murder because someone else hired you to do it and says it is ok. If that were possible, I might have a different career.
Stand your ground. Do NOT use copyrighted material unless it is cleared and paid for. If the client insists, refer him to whichever competitor of yours that you like the least.
With what sounds like a big company, and showings in multiple locations across the country, this is not an “IF it gets out” situation… it’s a “WHEN it gets out.” The fact that it will get out is almost a complete certainty.
T2
__________________________________
Todd Terry
Creative Director
Fantastic Plastic Entertainment, Inc.
fantasticplastic.com
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My personal feeling on this – explain to them that it is not in their or your best interests to be using copyrighted material due to the ramifications that could happen. If they don’t listen and insist then thank them for the opportunity and walk.
You are better off without clients like that in my opinion! -
You could ask those IRS staffers that did a StarTrek-themed convention opener, how “internal” any internal-use-only footage is.
https://www.youtube.com/watch?v=jfDLKxwc0yU
(shhh, it’s for internal use only.)
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You could contact the rights holders with details of the project and ask for a quote for rights clearance fees, so that you can show that to your cleint and then add that to your production quote if s/he wants to continue.
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I have a line item in my contracts that says that I will not knowingly violate copyright on any terms. Even if you have a contract that shifts liability to the client you can still be held liable. A contract that shifts the burden of an illegal act won’t stand up in court. Also, I respect property rights which includes the rights of content creators.
http://www.MediaCircus.TV
Media Production Services
Winnipeg, Manitoba, Canada -
What exactly is copyright infringement? It’s my understanding that these days its the act of uploading content (distributing)without the owners consent, and not necessarily the act of sampling and remixing for personal use. So it would be the uploader (“distributer”) who’d face any legal challenges from the copyright owner, surely?
In other words, if it gets online – and you didn’t upload it – how is that your problem? What specific law have you broken? Furthermore is the editor more responsible because he spliced it in? What about the colorist? Or sound mixer? Could they be held liable too?
Question: Has there ever been an instance of copyright infringement where the staff for hire (freelance or otherwise) was held liable instead of – or as well as – the owner, producer or distributor of the new media? (not seeking metaphorical answers such as hit men and nazis)
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I paid an attorney $250 to ask that question. He said, You don’t own the work. I said but…the client. He said, if you want legal advice and a defense position my retainer is $5,000.
I’ll look it up in Lexus Nexus. But that’s a tough database and I ain’t no lawyer.
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I think it’s reasonable to assert that the details of the imagined case you mentioned have not been tested. I could only find two cases that use the term “video producer.” The cases are:
- Dastar Corp. v. Twentieth Century Fox Film Corp., No. 02-428 , SUPREME COURT OF THE UNITED STATES, 539 U.S. 23,
and
- Mynatt v. Lockheed Martin Energy Sys., No. 06-6319, UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT, 08a0153n.06.
Here’s the quote from DASTAR:
It could be argued, perhaps, that the reality of purchaser concern is different for what might be called a communicative product–one that is valued not primarily for its physical qualities, such as a hammer, but for the intellectual content that it conveys, such as a book or, as here, a video. The purchaser of a novel is interested not merely, if at all, in the identity of the producer of the physical tome (the publisher), but also, and indeed primarily, in the identity of the creator of the story it conveys (the author). And the author, of course, has at least as much interest in avoiding passing-off (or reverse passing-off) of his creation as does the publisher. For such a communicative product (the [**2048] argument goes) “origin of goods” in § 43(a) must be deemed to include not merely the producer of the physical item (the publishing house Farrar, Straus and Giroux, or the video producer Dastar) but also the creator of the content that the physical item conveys (the author Tom Wolfe, or–assertedly–respondents).
Here’s the quote from MYNATT:
Mynatt’s initial job in IMS was video aide, a weekly salaried position. In 1989, his position was reevaluated as video associate, a monthly salaried position. In 1990, Mynatt was promoted to Video Producer I. In that position, he produced and directed videotaped programs for DOE facilities at Oak Ridge. He retained that position until his termination in September 1999. At the time of his termination, Mynatt’s position was titled Media Producer II, salary grade 3.
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