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Can I sell video of a couple bands I shot 16 years ago?

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Randy
Can I sell video of a couple bands I shot 16 years ago?
on May 12, 2006 at 10:10:21 pm

I videotaped, for free, a couple bands back in 1990. They played at local clubs here and I was just starting out in video production and asked if I could videotape them. They agreed and it ended up nothing was ever done with the videos I shot.

It was a simple one-camera shoot using a Panasonic AG-450 SVHS single chip camcorder in the back of the club and the audio was recorder with the on-camera mic. One band actually had a #1 billboard hit a couple years later, which they did play that night, and continues to have a large fan base.

My question is, what are my rights with these two videos. I was not paid to shoot the videos but I was given permission to videotape the bands. I was thinking of making a DVD from these two shoots and selling them. Any thoughts?

Thanks,

Randy


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Ron Lindeboom
Re: Can I sell video of a couple bands I shot 16 years ago?
on May 12, 2006 at 10:24:59 pm


Unless you have their permission in writing, you have no rights. All they have to say is that you were just a guy shooting them and if they had known, they would have stopped you. That's what Metallica and others would do. On the other hand, there are other bands who encourage this kind of thing. So, check how the feelings of the band and/or their management and/or record label.

Best regards,

Ron Lindeboom


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Randy
Re: Can I sell video of a couple bands I shot 16 years ago?
on May 12, 2006 at 11:01:52 pm

How are tapes like the Tommy Lee/Pamela Anderson video allowed to be sold without their permission and the company selling it didn't even videotape it, in fact, it was Tommy Lee and Pamela Anderson that did the videotaping?

Randy


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Ron Lindeboom
Re: Can I sell video of a couple bands I shot 16 years ago?
on May 13, 2006 at 3:50:01 am


There are many tapes that get leaked all around the internet and have so many people selling them that it's hard for anyone to stop the flow. But you are not talking about that: You are talking about selling something under your name that you shot, which I suspect will be done under your control. Now that kind of thing is easy to stop. A couple of albums that I produced got bootlegged and I had to file the affidavits with eBay to show that I had the legal authority to demand they pull the products. They did. But the Tommy Lee/Pamela Sue Anderson video was a porn thing that moved across the net like a prairie fire and no one could stop it. (Thankfully, Eric got our server's email filter set up to where we long ago quit getting those damned emails about it. Thanks, Eric!)

But you can put your name and livelihood on the line and release it without any permissions and see what happens when the band's lawyers and music publishers find out about it.

Ron Lindeboom


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Randy
Re: Can I sell video of a couple bands I shot 16 years ago?
on May 13, 2006 at 2:28:24 pm

Ron, thanks for your responses so far.

What if the band admits to have given me permission that night to videotape them? Is that enough to allow me to sell it or is more needed?

The lead singer actually came to my house next day because something happened that night which caused the band to split up and he wanted to view the tape that I shot to watch how one of the band members was acting on stage. This was the last time that this specific band lineup ever played.

Thanks,

Randy


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Ron Lindeboom
Re: Can I sell video of a couple bands I shot 16 years ago?
on May 13, 2006 at 5:15:57 pm

Most bands that I have worked with have "members" and "key members." The members can come and go but the key members are usually the ones who hold the legal rights. If you can get one of them to sign a release that you have permission to use this, that is one hurdle. The next is what song(s) are they playing? Who holds the rights to the song(s)? This is not usually held by the band but by the publisher. You need to pay a fee for this, usually based on the number of units you press. Using your own disc duplicator will get you in hot water here but you are safer using an industry-trusted company like DiscMakers or the like. This way, they sign off on the number of units created and when you pay the mechanicals on your run, you should be okay. This is usually about 50 cents to a dollar a copy in my experience.

Best regards,

Ron Lindeboom


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Michael Munkittrick
Re: Can I sell video of a couple bands I shot 16 years ago?
on May 14, 2006 at 4:02:27 am

There is no universally acceptable term for "permission" when speaking about intellectual property even with all of the laws that support the copyright holder. With all due respect for your certainty of the bands allowance for shooting the video, unless you posses a presentable document that has signatory and detailed usage clearly spelled out, you are going to have an infinitely difficult time proving what a guy in a band, or even the entire band stated verbally 16 years ago. Considering the hugely swayed system with respect to any type of artist, this is one of those cases where your band could claim that they were all stoned, drunk or hanging out with Keith Richards, any of which would make your claim a battle of words. That kind of war will only be in your favor if you have irrefutable proof of your claims.

Moreover, if the band signed with a record label that promotes them, there might be a clause in that contract about retroactively protecting the materials created by the band. While this type of law is challengeable by the band, a good point of reference would be to look back to the infamous N-Sync split with Lou Pearlman a few years back. Lou had claimed that his contract spelled out the fact that anything that the band made, even live versions of their original material was technically owned by Lou's management company. Yes, Lou did actually form the band, but one of the reasons that this case existed was that N-Sync couldn't sell their own recordings or claim royalties from them at any time in the future.

If this band is a "known" brand that tours and currently sells records under the banner of a record label, you would do yourself a favor to keep the video under your hat. Also, if this point should arise in the future, even after they are no longer a band the hammer would fall on you, not them and the burden of proof would sit squarely on your shoulders.

Now, there are a few ways to go about getting the rights to do what you mention without cutting your own throat. First, contact the band and have them sign an agreement stating that they gave you ALL rights to this video in exchange for the service of recording it. In almost every state in the union a "barter's defense", as it is called is pretty powerful, not bulletproof, but still potent. Next, you could contact the management company and offer the video to them at a price, or exchange the single-use rights in return for complete rights to the video other than your final product. This is less likely to happen, but there are precedents that clearly show this method as a potential method for keeping your butt cheeks closed. Finally, you can go directly to the label and state the facts about creating your edit and make clear the faith that you anticipate limited financial gain from the project. While this a highly unlikely option, Depeche Mode did exactly this years ago with people who had recorded them live in small venues 10 years before they owned a synthesizer. Reprise Records, a Time-Warner company is known to make this option available often, but in a publicity-like kind of way. The video is approved by the label and is then "smuggled into the underground" which creates publicity. The label "vigorously defends" its artist and the label's rights publicly, but do little, if anything at all to subdue the creator or its distribution.

An original document with signatures and a notary seal or legal representative goes much farther in a court of law, but alternative methods are always making themselves known. I think that you will find that your "rights" are not actually rights at all. They are abstract conversation that can be discredited with more abstract conversation or one word from the ban stating that they don't recall that agreement's context or content.

I hope this has been of some help.

Michael Munkittrick
Gainesville, Florida USA


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