Copyright video question

[Richard Herd]

another interesting case:

LOS ANGELES NEWS SERVICE; ROBERT TUR, Plaintiffs-Appellants, v. CBS BROADCASTING, INC.; COURTROOM TELEVISION NETWORK, Defendants-Appellees

OVERVIEW: The copyright holder owned copyrights to videotape footage of the beating of a truck driver during the 1992 Los Angeles riots. Plaintiffs claimed that a video news service owned by the broadcasting company’s predecessor had distributed the copyrighted works to recipients including the network. The network used a few seconds of the footage to promote news coverage and as part of the introduction to one of its programs. Plaintiffs had agreed to a stipulated dismissal of their initial suit against defendants, but refiled their complaint after the parties failed to reach a settlement. The appellate court found, inter alia, that the district court erroneously excluded certain evidence on the basis of the stipulation agreement. As a videotape of allegedly infringing footage and its identifying slate were not hearsay and were sufficiently authenticated, there was enough admissible evidence to preclude summary judgment as to whether the broadcasting company was liable for infringement. However, the network’s use of the footage was protected as fair use given some transformative use, the factual nature of the work, the small portion of footage used, and market considerations.

[Richard Herd]

HI-TECH VIDEO PRODUCTIONS, INC., Plaintiff-Appellee, v. CAPITAL CITIES/ABC, INC., Defendant-Appellant.

No. 93-1090

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

OVERVIEW: Plaintiff registered a copyright in a travel video as a work made for hire. Defendant used portions of the video on its television program without plaintiff’s permission. Plaintiff filed suit against defendant alleging copyright infringement. The trial court entered judgment in favor of plaintiff. On appeal, the court held that because the video was produced in part by independent contractors, it was not a work made for hire and, therefore, the copyright in the video as a work made for hire was invalid. The court reversed and remanded the case with instructions to enter judgment in favor of defendant.

OUTCOME: The court reversed and remanded the case with instructions to enter judgment in favor of defendant, holding that because the video was produced in part by independent contractors, it was not a work made for hire and, therefore, the copyright in the video as a work made for hire was invalid.

[Richard Herd]

EVERETT C. DAVIS; BARBARA J. MOONEYHAM, Plaintiffs-Appellees, v. MERIDIAN FILMS, INCORPORATED; BENSON, BENSON & HENRIKSEN, The Partnership; ANNA L.M. BENSON; CYNTHIA BENSON; MARK HENRIKSEN, Defendants-Appellants. EVERETT C. DAVIS, Plaintiff-Appellant, and BARBARA J. MOONEYHAM, Plaintiff, v. MERIDIAN FILMS, INCORPORATED; BENSON, BENSON & HENRIKSEN, The Partnership; ANNA L.M. BENSON; CYNTHIA BENSON; MARK HENRIKSEN, Defendants-Appellees. EVERETT C. DAVIS, Plaintiff-Appellant, v. VIDEO GROUP, LLC; BODYLAB, LLC; ATHENA, LLC, Defendants-Appellees. EVERETT C. DAVIS, Plaintiff-Appellee, v. VIDEO GROUP, LLC; BODYLAB, LLC; ATHENA, LLC, Defendants-Appellants.

No. 02-2469, No. 03-1026, No. 03-1346, No. 03-1493

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

CASE SUMMARY

PROCEDURAL POSTURE: Appellant videographer of exercise videos sued appellee producers of the videos, alleging that the producers infringed the videographer’s copyrights as either author or co-author of the videos. The videographer appealed the order of the United States District Court for the District of South Carolina, at Columbia, which granted summary judgment to the producers, and the producers cross-appealed the order denying their motion for attorney fees.

OVERVIEW: The videographer provided services in the production of certain videos under a compensation and royalty agreement, and the producers subsequently produced new videos which were composed of excerpts from the previous videos that were linked together with new footage. The videographer contended that he was entitled to additional royalties for the producers’ use of his copyrighted works. The appellate court held that, in view of the videographer’s admissions that the producers were responsible for choreography, directorial duties, final decisionmaking in the editing process, and creation of the concept underlying the exercise videos, the videographer could not be considered the author or the co-author of the videos for copyright purposes. However, the videographer’s position was sufficiently reasonable to justify the denial of the producers’ request for an award of attorney fees.

OUTCOME: The orders granting summary judgment to the producers and denying the producers’ motion for attorney fees were affirmed.

[Richard Herd]

[Aaron Sheffield] “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?”

YES!

I quoted a case over there –>

You want to be sure the contract states “WORK FOR HIRE” in big bold letters, and you might want to reword appropriately the specific language from the case:

the producers were responsible for choreography, directorial duties, final decisionmaking in the editing process, and creation of the concept underlying the exercise videos, the videographer could not be considered the author or the co-author of the videos for copyright purposes.

You could probably get even more complex by mentioning “current market conditions” because it was an important consideration in a few briefs I read, ‘though I can’t find them now. The idea is something akin to “current technology makes sharing media part of the market conditions for being a video producer/editor. If you do not comply with the client wishes, then you will lose business.” It appears the current Court is sensitive to business interests. In the cases where you do use copyrighted material for work for hire at the client’s direction, then also be sure to attribute who owns the work — vis-a-vis “the origin of goods.” It’s not so bad to have the client sign another form “My video editor explained that using copyrighted material is an infringement, but they think it is worth the risk.”

I’m not a lawyer, just a curious kind-of-guy — and I’m not sure I’d do any of this stuff, but it’s hard to avoid a client’s needs. I totally understand that. The other weird point is all of this is about money. On one hand you can’t ignore clients, on the other you can’t expose yourself to risk. So what are you going to do?

Have you read this? https://daredreamermag.com/2011/12/07/the-music-licensing-chickens-have-come-home-to-roost-in-wedding-and-event-videography/

The important detail is poor Joe Simon is the author. You’re trying to waive that. And the case didn’t go to trial, so there’s no mention of it in Lexis Nexis.

[Rocco Rocco]

Thanks for all the fascinating research ;o)