internal corporate meetings…

[Jbarnes]

Ron, your apology is accepted – though you may owe me another one for calling me “James” twice when my name is “Jason.”

I read your article and found it to be informative and accurate. Thank you for referring us to it.

You are exactly right when you say that an indemnification agreement cannot protect you for knowingly breaking the law – I never suggested otherwise. What I did say was that an indemnification agreement is a legitimate way to protect oneself if you have a good faith belief that you are practicing fair use under the guidelines provided by the PTO and the courts. If you have a good faith belief that you are covered under the doctrine, you are, arguably, not breaking the law. Of course, the idea of “good faith” is every bit as difficult to define as the meaning of “fair use.”

Every artist, in my opinion, should be careful of relying on the doctrine of fair use for protection.

Frank Otto’s post about getting a “proof of compliance” declaration from your client is an excellent suggestion. I would include indemnification language in that document, as well.

My own work of 15 years puts me in front of judges and juries at both the state and federal level – as well as the Patent and Trademark Office and the International Trade Commission – every month. I would feel confident in relying on my due diligence (as suggested by Frank Otto) and subsequent good faith belief along with an indemnification or “proof of compliance” document to protect me under the doctrine.

Contrary to your reproof, I believe that for-profit companies use the doctrine to incorporate the copyrighted works of others into their products all the time. A viewing of the “Tonight Show” will provide ample example of this practice (parody exemption). It may not be such a clear exemption when used in the corporate presentation environment, but it is certainly not out of the question.

As for damages due to a copyright holder, remember that they are limited to his/her actual damage (lost sales) or your profits (ill-gotten gains), necessary expenses and, in some cases where you knowingly violate the copyright laws, exemplary damages (treble the real damages). Treble damages are generally levied only in situations that are egregious. The situations I have run across are generally resolved prior to any lawsuit and settle for the cost of a license plus a reasonable premium for the trouble.

I don’t know where you got the statistic about most settlements being in the $150K range and up you cite in your article or to what kind of cases that statistic refers to so I cannot comment on how that conflicts with my own experience. I agree that there are certainly many cases that do result in this kind of finding, though I also think many more are resolved for substantially less.

I hope this post doesn’t sound like I am advocating wholesale theft of intellectual property from artists under the guise of fair use. I am unequivacably against the idea. I merely wanted to join in the discussion and share what I know on the subject. Everyone in the business should read the law and the cases and make up your own mind.

Have a great weekend.

Jason Barnes

[Leslie Wand]

in passing….

worked in the middle east a few years back and edited a job that was to be shown ‘internally’ in israeli cinemas. a short thirty sec. swimwear, done to ‘yellow submarine’. pointed out copyright, etc., but didn’t want to lose my job….

as it happened, michael jacksons lawyer (or one of ’em) was in the audience, and though he didn’t know the language, he certainly recognised the song! happened to follow it up on his return to the states.

outcome: budget for whole 30 sec ad – $25k, settled out of court for $20k. cost of rights for song, $1500.

me, i carried on working and pointing out breaches, but wasn’t a enough of a hero to quit!

leslie

[Ron Lindeboom]

My apologies for calling you James, Jason. I do not know where that came from but I guess I mentally “fixed” on it and it was all over from there. ;o)

Thanks for clarifying what you were saying. When dealing with issues like Fair Use, short and quick statements do not do the subject justice, as you well know and clearly stated in your second reply.

Yes, I covered the parody exemption in my article and it is one which is a long-standing one but in most cases that I have seen, parody is not the intent and corporations are merely stealing intellectual property. I just wanted to make that clear as sending a picture based on the exception, rather than the rule, sends the wrong message to younger or newer producers just starting out or heading out into new areas of production.

That was my real concern and the reason for my words.

It’s nice to have you here, Jason.

Ron Lindeboom

[Doofus]

I have recently been commissioned by a substantially large charity organisation to revamp their “corporate image ” and to compile a “corporate” style annual meeting for them for an audience of approx 300. I have outlined to them what content I will be creating for them from scratch and have written permission from various artists for the use of certain music tracks as well as commissioning original pieces. My question is I am within my rights in the UK to effectively say that all of my work is my ownership and cannot be reproduced without my permission and that any and all subsequently included material from other artists cannot be reproduced without their express permission. The reason I ask is that they are now requesting outline documentation stating what content they can utilise for further use after the day! Thanks in advance for any help.