internal corporate meetings...
Hello wise buisness folk-
I have a small corporate client that is wanting to rip off music and video from popular TV shows/movies for a internal corporate meeting as part of a motivational thing. I have explained to them verbally during our initial meeting that they do not have the cash to liscence all this stuff and there are severe legal consequences to making this video peice public under any circumstances. Does anyone have any legal wording they use in their contracts for this kind of situation that removes liability from the production company (of the video) for this kind of thing? Or any other thoughts and suggestions? Or should it be avoided at all cost?
Sorry to throw cold water on your plans but there is no document that will protect you from the legal repercussions of doing a job which you know to be illegal -- and if ignorance of the law were the case, even that would not shield you in this situation as ignorance of the law is no excuse.
Contrary to popular fable and Net legend, there is no document or "hold harmless" clause which will release you from legal culpability in this situation.
thanks for the heads up. I guess what i'm asking is, if a corporate guy is giving a internal presentation to his staff, and even if he owns the movies/music in question (as in the CD/DVD) it's still not legal to show parts of those in a montage format in a meeting? I've heard conflicting sides of the story, some people say that as long as it's not in a public networking event or something they charge admission to it's okay. What i'm understanding from you is that it almost seems like your not allowed to even show the dvd (untouched) itself in a buisness meeting. Or am i being too strict?
It's not legal. If they do it with your work and anyone gets caught, you will be left holding the bag.
During the next conversation with your client, tell them you wanna make a free copy of all their proprietary office software to take home, it's just for, you know, internal use....
Stealing copyrighted/uncleared music, especially getting paid to steal it and put it on someone's video, is not legal under any circumstance, period. I think the document you are referring to is one indemnifying you... meaning, you and client admit that you are breaking the law, and if you would get caught and sued by the copyright holder, then the client promises to reimburse you for your losses from the suit.
No corporate client in their right mind is going to go for this, it's shaky legal tactics at best, and you'd be taking an additional risk in counting on them to hold to the agreement, since what judge is going to enforce a contract that pays you to knowingly break the law? And if the guy suing you finds out about that indemnification, he might be able to use that to hike the penalties up double!
Bottom line: any use of the music without clearance is illegal, and you should not agree to participate. There are plenty of safer options instead, including custom composed "sound-alike" music, needle-drop libraries, and music composed on the various looping programs out there. If you decide to go ahead and take the risk, you are playing Russian Roulette with your business and your personal assets, so be sure to bill accordingly.
If your clients can't get this thru their heads, you need better clients.
To quote Nancy Reagan "Just Say No".
Live & Stage Events
Much appreciated, thanks for all the input folks!
What about the corporate practice of "rip-o-matics" I believe the term is? There are major (and I mean MAJOR multinational) corporations who do this from what I understand. They string together scenes from motion pictures that evoke modes and screen them to see what might evoke the kinds of emotions/response for a future advertising campaign. Basically they seem to rent DVDs and screen highlights at an internal meeting. In other words a business is renting DVDs and screening highlights. I suspect they're making "clip reels" rather than scanning through stacks of DVDs.
Reason why I ask, is I went to an interview for a freelance gig a few years back and they said they do "rip-o-matics" and described the above practice and who there clients were. It sounded a bit "boarderline" to me and they were put off when I asked about copyright issues.
As alluded to in this thread, there are businesses who want producers to use copyrighted images and/or music in their "internal" pieces. I think this is DUMB risk for any business. All you need is a disgruntled employee showing a copy to the appropriate "interested" party and . . .
This site will explain what is called the "doctrine of fair use" which was developed through a series of high court decisions and has now been codified as law.
Basically, under the doctrine of fair use, you can incorporate pieces of copyrighted works into your own original work under some circumstances. In your situation, you may find yourself covered under the doctrine if the use will be a parody or if it will be used for educational purposes. Alternately, your use may be "fair" if the portion you use is a small portion of the original and a small portion of your completed work. Please review the page above and the many other explanations that can be found via a quick web search.
If you think that this doctrine applies to your use of the copyrighted work, e.g., you have a "good faith" belief that it is fair use, an indemnification from your client will cover your liability if the copyright holder wants to bring suit. Check with your lawyer for specific language for your situation. Your liability is likely limited to the money you make on the job - since you have a good faith belief, there is no treble damage available. Any loss of market value to the copyright holder (if any) will likely be the problem of your client.
The best course of action is, of course, to avoid any use of unlicensed copyrighted material unless it is CLEARLY subject to the fair use doctrine. Even if you are sure, explain the doctrine to your client, send them some links on the subject and get the indemnification signed.
[jbarnes] "...get the indemnification signed."
I am very sorry to have your first post in the Cow be one that seems callous but starting with your last comment, James, it is completely false. Completely. You cannot get an indemnification signed so that you can break a law and hold someone else responsible when you are aware -- or not, ignorance of the law doesn't matter -- that you are breaking a law. Arguably, the indemnification only proves that you were aware that you were breaking the law and in some cases, has been used to actually increase rather than alleviate financial damages in court settlements.
As for Fair Use doctrines, there is an article in the Cow library that I penned which is written in a way that is far closer to the realities of Fair Use for media producers than the one at the copyright office -- which is a good read but is so general that many who read it still have more questions than they do, answers. In general, for-profit entities have a tough time proving Fair Use -- oh, there are exceptions but they are few and very far between.
The article can be found at:
Again, my apologies for seeming rude or disrespectful, James, it is not intended that way at all.
Best regards and welcome to the Cow,
Charlie and I were discussing this earlier. About the only way to lessen your liability in this situation is to demand a "proof of compliance" with all licenses, fees and use grants being documented and provided to you prior to the actual release of the presentation. That puts the onus of liability squarely on the corporate entity. At trial, the courts will look at your behaviour and your attempt to make the corporation do what it rightfully expected of them.
Should they falsify or lie about the licensing of product, it again places the guilt strictly on them, while the court would regard your effort as "due dilligence". You can not be held liable IF you accept "baldface" evidence from the corporation that turns out to be a fabrication (USA 9thCir, Warner Bros. v Childress Corp,et.al., separation and dismissal of the production company -ruled not liable as production company, Metrovisuals had acted in good faith, performimg due dilligence in requesting and recieving documents of compliance which in time, proved to be forgeries.)
But you have to make the effort - and if the corporation refuses to provide you with the proper documents, I'd run from the work.
(I am not a lawyer, but as an artist who protects my work, I do have a lot of communications with them...)
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!
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.
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.
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.