BUSINESS AND MARKETING: Business and Marketing Forum Business and Marketing Articles

Copyrighted material problem

COW Forums : Business & Marketing

<< PREVIOUS   •   FAQ   •   VIEW ALL   •   PRINT   •   NEXT >>
Christopher Gomersall
Copyrighted material problem
on Aug 13, 2007 at 12:34:11 pm

I have worked for the in-house video department of a LARGE corporation (1 billion sales annually) for about six months and have discovered their disturbing habit of creating videos to motivate the sales force that use clips from movies and unlicensed music. After bringing this up to them they claim their attorneys said it was OK. Personally, I think they are just telling me what I want to hear to shut me up. Can they use clips from Hollywood films without permission? The FBI warning at the beginning would suggest not. Any thoughts? Whom should I consult to get the truth?


Return to posts index

AlexHuber69
Re: Copyrighted material problem
on Aug 13, 2007 at 2:28:40 pm

Yikes... that is soooooo illegal on soooooo many different levels that it's not even funny.

They need to consult an entertainment attoney -- and no, not their in-house attorney or some random lawyer in the phone book... needs to be an entertainment attorney.


A.




Return to posts index

Bruce Bennett in Madison, WI
Re: Copyrighted material problem
on Aug 13, 2007 at 3:44:58 pm

Chris,

I worked for about a same sized company (Fortune 700) for a few years that did exactly the same thing. Even though we made it perfectly clear to AVPs, VPs, Senior VPs, etc. that it was illegal, it didn't seem to matter. So our philosophy was:


Return to posts index


Emre Tufekci
Re: Copyrighted material problem
on Aug 13, 2007 at 4:15:57 pm



Return to posts index

MHancock (promoboy)
Re: Copyrighted material problem
on Aug 13, 2007 at 5:49:37 pm

In addition, if that dreaded lawsuit ever comes from the music or film industry, who do you think will be the first one let go?

You.

You put it in there, and it won't matter than you told them it was illegal and you didn't want to. They'll drop you like a stone and use your salary to settle out of court. Trust me, when it hits the fan your boss isn't going to take a bullet for you.

So what do you do? Well, you can flat out refuse to put it in there until they provide the papers that show you specifically have the rights to the music/film, but again--you'll likely be canned before that happens because you're not being a "team player".

Good luck. I'm not sure what to tell you.

Michael


Return to posts index

zrb123
Re: Copyrighted material problem
on Aug 13, 2007 at 9:56:34 pm

[MHancock (promoboy)] "So what do you do? Well, you can flat out refuse to put it in there until they provide the papers that show you specifically have the rights to the music/film, but again--you'll likely be canned before that happens because you're not being a "team player"."

Firing someone for not breaking the low when you ask them to, thats a good reason, and one that will give them a nice lawsuit. So now they have two lawsuits to deal with, one for copyright violation and one for wrongful termination.



Return to posts index


John Davidson
Re: Copyrighted material problem
on Aug 13, 2007 at 11:23:12 pm

Guys, that happens ALL the time. Companies big or small. My favorite? An unnamed network made a face Fox affiliate promo about the new deadly threat to your children.....trees. They used network logos and all.

Have you guys ever watched an upfront for a network? They fill an auditorium, pump trailers for next years shows full of unlicensed music, and rake in billions in upcoming year ad sales.
Every network does this. Nobody pays a dime.

The unofficial rule of thumb is, if it airs, you pay. Might not be legal, but that's the rule. Heck, we aired a spot this year promoting a new series and we referenced a very popular show with a similar audience but on another network. We got a call a few weeks later saying that HBO's lawyers were demanding we remove the reference. My client network's lawyers had approved it, so the absolute last thing they would do is come after the EDITOR of the spot. Another example of a suit was for a net that wanted a song for a spot but it was too expensive. The producer hired a company to produce a song that "sounds like" the song she wanted. Well, I guess it sounded a little too much like it because they got sued and it was nasty. Lawyers were subpoenaing emails, voicemails, etc., looking for evidence that the produced song was meant to be a ripoff. Again though, this was a spot that aired.

Editors are the last people to get sued for copyright infringement. It never happens. Never.

If you're a predator, that might be different. Editor - no. Please, i'd love to hear an actual story where an editor got fired for a producer or lawyer's mistake.

John Davidson____ writer | producer | director____http://www.magicfeather.tv


Return to posts index

Bruce Bennett in Madison, WI
Re: Copyrighted material problem
on Aug 14, 2007 at 2:51:50 am

[John Davidson] "Please, i'd love to hear an actual story where an editor got fired for a producer or lawyer's mistake."

Me too.

It


Return to posts index

beenyweenies
PARANOIA
on Aug 15, 2007 at 6:55:48 am

I AGREE. There are some awfully paranoid people here who don't seem to understand copyright law. The editors of an internal use video are NEVER EVER EVER EVER EVER going to wind up in a copyright infringement lawsuit. EVER. EVER!

One must prove damages as part of a copyright lawsuit. In an internal use video, no money was made, no market value was diluted, and since copyright lawsuits are federal they are extremely expensive to pursue. They will, worst case scenario, send your company a cease and desist. The sky, contrary to popular opinion, is not falling.

Brendan Coots

Splitvision Digital

http://www.splitvisiondigital.com


Return to posts index


Kyle_S
Re: PARANOIA
on Aug 23, 2007 at 12:25:27 am

WRONG WRONG WRONG, Thank you for playing.

It has happened and will happen again as long as people continue to use content that does not belong to them. it doesn't happen often because most of the people who wold do the suing never see the product. Using clips to motivate your sales force is using the clip for profit. Companies have been sued over this. all it takes sometimes is for someone to play the video and home and the wrong person see it or a disgruntled employee mail the videos out.

And no the editor is not going to get sued as long as they are an employee and not a contractor.

K


Return to posts index

walter biscardi
Re: Copyrighted material problem
on Aug 15, 2007 at 11:35:33 am

[John Davidson] "
Have you guys ever watched an upfront for a network? They fill an auditorium, pump trailers for next years shows full of unlicensed music, and rake in billions in upcoming year ad sales.
Every network does this. Nobody pays a dime."


Networks pay a blanket ASCAP and BMI licenses so they can use whatever they want, however they want.

[John Davidson] "
Editors are the last people to get sued for copyright infringement. It never happens. Never."


This is very true, so long as the editor does not own the company performing the Post Production. Even there it would be rare. It would be the Producer and the Client that the lawyers would most likely go after.



Walter Biscardi, Jr.
http://www.biscardicreative.com
HD Editorial & Animation for Broadcast and independent productions.

All Things Apple Podcast! http://cowcast.creativecow.net/all_things_apple/index.html

Read my blog! http://blogs.creativecow.net/WalterBiscardi


Return to posts index

Timothy J. Allen
Re: Copyrighted material problem
on Aug 15, 2007 at 10:29:46 pm

Good advice, Walter, but I have to nitpick one thing...

You said "Networks pay a blanket ASCAP and BMI licenses so they can use whatever they want, however they want.

While it's true the networks (and affiliates) pay blanket licenses to BMI and ASCAP, they still can't use "whatever they want, when ever they want". While the agreements do give them more leeway, they actual rights they are afforded are listed all in the fine print of the license(s).

For instance, when I worked for an ABC affiliate, I was still not allowed to use a Red Hot Chili Pepper's song for a client's used car spot. The client thought that I could, since the station paid the blanket license, but the short story is that the publisher of the song would not agree with that specific use. (I didn't use it, and the station's legal team backed me up on that decision.)

There are also still cases of songs that are not under the umbrella of BMI or ASCAP anyway. To use a song in a spot, you still need to get permission from the creator/publisher of the music.


Now the rest of this post is not directed to Walter, but to those on the thread who say "don't worry about it"...

As someone who entered the TV Production industry first as a studio musician, it pains me to see so many people ignore the law if they think that they can. They seem to forget that there are people out there who's dinner depends on if people actually follow licensing agreements. Yes, it can be complicated to secure rights, but IT'S WORTH IT TO DO THE RIGHT THING. In my experience getting permission on the front-end is not nearly as difficult as navigating a lawsuit would be. When I've used licensed music (other than stock libraries) I'd venture to say that half the time, I don't end up paying any substantial additional fees other than the ASCAP or BMI ones.

I do not use music that I don't have permission to use. If someone wants custom music, there are plenty of options to give them what they want legally.

-Tim


Return to posts index


beenyweenies
Re: Copyrighted material problem
on Aug 16, 2007 at 11:22:01 pm

As a musician for well over a decade, I would be the last person to disagree with you on the point of ethics in using copyrighted material. From an ethical standpoint, there is no justification for a client/employer to scoff at paying licensing fees if they so desperately "need" to use a particular song or video clip.

That said, the issue being debated here revolves more around the legal implications, and that is where my own comments upstream have focused.

Brendan Coots

Splitvision Digital

http://www.splitvisiondigital.com


Return to posts index

cow
Timothy J. Allen
Re: Copyrighted material problem
on Aug 18, 2007 at 2:08:25 am

Well, I will agree with you on your point on the "cease and desist" letters being sent. That's USUALLY as far as it would go for an internal non-broadcast video...unless it's a Metallica song that was used. ;-)

It's just a really small world, and the artist's cousin could very well be in the audience. Paranoid? Maybe. Professional? I do my best.

Like you said... from what I've seen in my 15 years in the business, the problem isn't so much that the "Editor" is going to be sued... the problem is on the Producer's shoulders.

But if my company gets a "cease and desist" letter because of the (wrong) decisions made by a Producer or Editor that I hired, I'm not hiring the person who made the decision to use the music ever again. They should know better. Plus, they are giving up an extra revenue stream.

If a client insists on using a popular song, it's incumbent on my Producers to find out how much that "privilege" would cost them. (Plus the charge for our work in finding out and providing that information to them.) If it can't be licensed under agreeable terms, we offer alternate options, such as stock music or custom music that fits their needs. Again, it's an opportunity for us to stay professional and perhaps earn a little extra for our trouble. above all, we provide the client with all ethical options and let them make the decision.

Of course, being a business Co-Owner and a Producer as much as I am an Editor these days, I'm pretty cautious about legal issues like this. I'd rather my business close because of lack of clients than because of being sued for using unlicensed music.



Return to posts index

Bruce Bennett in Madison, WI
Re: Copyrighted material problem
on Aug 14, 2007 at 2:28:42 am

Emre,

I appreciate your response. It is wrong to use copyrighted material for production. No ifs, ands or buts. I just don


Return to posts index


Steve Wargo
Re: Copyrighted material problem
on Aug 14, 2007 at 3:57:07 pm

I say:

1. Cover your butt with an e-mail to a superior stating your concern. Say that you "think" that there might be an issue. Stay away from "knowing" the law.

2. Do your job as your superiors state.

3. No one is going to come after YOU for copyright infringement but you don't want anyone to be able to point the finger at you either.

4. You could turn them in and collect the 10% reward.

5. Keep your resume up to date.

You've made your name and your concerns public on this forum. Google yourself and see what comes up. When I google myself, my COW posts are right there on page one. This is why a lot of people post here under assumed names.




Steve Wargo
Tempe, Arizona
It's a dry heat!

Sony HDCAM F-900 & HDW-2000/1 deck
5 Final Cut Pro systems
Sony HVR-M25 HDV deck


Return to posts index

JBaumchen
Re: Copyrighted material problem
on Aug 14, 2007 at 5:12:27 pm

I would be inclined to ask the company to give me a letter where they would indemnify me for any legal actions that might arise from their actions.

Just because you work for a company, doesn't mean you're covered if someone finds out and decides to sue. You can't break the law just because your boss tells you to. To really cover yourself, you need to report it, otherwise, you're an accessory.

"be seen, be heard, be remembered"


Return to posts index

John Davidson
Re: Copyrighted material problem
on Aug 14, 2007 at 6:44:09 pm

As the editor, you are the person that puts stuff together on tape (or dvd, or whatever). Your expertise is in the technical realm with a strong understanding of flow, delivery, and style. It is not your place to question the legal ramifications of some silly in-house video. This is a non-issue. Where will it stop? When your company uses pop music for a production, will you need to get copies of the clearance forms from all the copyright holders so you can sleep at night? You'll need to hire your very own legal department to deal with the paperwork you get from the inhouse lawyer's copy machines. You are a part of a wheel, and were hired to edit productions, not for your legal expertise.

Googling your post will do nothing. You will never get caught, because there are bigger fish to fry. This stuff happens all the time. You were told this was ok, so assume this is ok'd by the lawyers and copyright holders and do your job.

The BEST part of being an inhouse editor is that 90% of the time your job is over at 6pm. You don't want to change that.

John Davidson____ writer | producer | director____http://www.magicfeather.tv


Return to posts index

Christopher Gomersall
Re: Copyrighted material problem
on Aug 14, 2007 at 7:04:33 pm

I am the producer and, sometimes, editor so I am slighly more culpable then an editor alone. However, the replies, which were various and numerous, have given me much to consider. Thank you all for your time. I've been away from the COW for quite awhile and forgot how generous all you bovine can be in a crunch.
Cheers!


Return to posts index

Emre Tufekci
Re: Copyrighted material problem
on Aug 15, 2007 at 10:25:23 am

Just one addtions to the posting; there is always the fair share use which applies for educational and news/reporting catagories. It is a gray are but here is my interpitation of it:

If you were doing a study of "metallica's music effects on youth today" you can use thier music with out permission under the fair share use law. But they have to be the focus or a part of the study (or news story)

If you are doing a study on "migration patterns of europian unladen swallow" you cannot use metallica's music just because you think it makes a great opening.

I may be way off on this but this is what I was explained by an attorney. (Who at the time was trying o tie a coconut to a bird......but thats another story)

Cheers,


Emre
http://www.productionpit.com
Boxx Tech PC, dual-dual AMD 2.0,4BG ram,Avidexpress HD w/Mojo,UVW-1800,DSR-25, Adobe production studio.

"Creative cow is udder madness."


Return to posts index

walter biscardi
Re: Copyrighted material problem
on Aug 15, 2007 at 12:31:52 pm

[Emre Tufekci] "It is a gray are but here is my interpitation of it:

If you were doing a study of "metallica's music effects on youth today" you can use thier music with out permission under the fair share use law. But they have to be the focus or a part of the study (or news story)"


At CNN we would not do this because it still did not apply under fair use. At least at the time I worked there in '90-'95. We would do stories on Michael Jackson and his music, but never played his music in the story because we could not use it.

Walter Biscardi, Jr.
http://www.biscardicreative.com
HD Editorial & Animation for Broadcast and independent productions.

All Things Apple Podcast! http://cowcast.creativecow.net/all_things_apple/index.html

Read my blog! http://blogs.creativecow.net/WalterBiscardi


Return to posts index

mark raudonis
Re: Copyrighted material problem
on Aug 16, 2007 at 2:57:26 am

[Emre Tufekci] "It is a gray are but here is my interpitation of it:"

emre,

Your interpretation is JUST PLAIN WRONG!

I'd caution anyone even remotely interested in trying to use the "fair use" defense to research it thoroughly. Plenty of documentarians point to the it as a "shield" for their project. You can wish it... but it just ain't true.

Mark




Return to posts index

John Davidson
Re: Copyrighted material problem
on Aug 16, 2007 at 9:27:04 am

The rule when I was at CNN was that you could use music, but only if it was in the background as natsound (ie. if a radio was on playing "Carry on my wayward son" while a live shot was on location during a standup or some newsworthy event, it was ok). That was the only time fair use was allowed.

For Walter's note on the blanket fee, no network I've been at does that. Each song we use requires we send in a request through the music clearance folks (they have people just for that) and they send in requests that go through each copyright holder and determine a price for each use of the song. Sometimes it's almost impossible to get clearance for certain songs because the artists just don't respond. For example, I really wanted to use "don't bring me down" by ELO, but ELO wouldn't respond. Some artists just flat refuse to allow any music, or charge an exorbitant fee (like 80k for one week's use of Kid Rock's "cowboy" - we found a substitute).

I put in probably 150 requests for clearance last year, so boy do I wish that we could get unlimited blanket use! To clarify though, my knowledge is primarily promos, so perhaps program production departments have their own clearance setups. I do think that some stock libraries do occasionally include a few popular songs, but it would be misleading to say that all pop music can be cleared through a blanket payment. Man do I wish!


Return to posts index

walter biscardi
Re: Copyrighted material problem
on Aug 23, 2007 at 12:51:20 am

[John Davidson] "The rule when I was at CNN was that you could use music, but only if it was in the background as natsound (ie. if a radio was on playing "Carry on my wayward son" while a live shot was on location during a standup or some newsworthy event, it was ok). That was the only time fair use was allowed."

Absolutely, that is the ONLY true "fair use" that I've ever seen allowed. If the music happens to in the scene somehow.

Pulling music off the internet, a CD or a TV recording, doesn't apply to fair use at all.

Walter Biscardi, Jr.
http://www.biscardicreative.com
HD Editorial & Animation for Broadcast and independent productions.

All Things Apple Podcast! http://cowcast.creativecow.net/all_things_apple/index.html

Read my blog! http://blogs.creativecow.net/WalterBiscardi


Return to posts index

David Roth Weiss
Re: Copyrighted material problem
on Aug 23, 2007 at 1:14:48 am

[walter biscardi] "Pulling music off the internet, a CD or a TV recording, doesn't apply to fair use at all."

Well, it actually could. Techically, almost any intellectual property could be used legitimately if the proper conditions of fair use actually apply. However, as we all know, its almost a rule that if you've got to ask if fair use applies, it probably doesn't.

David

David Roth Weiss
Director/Editor
David Weiss Productions, Inc.
Los Angeles

POST-PRODUCTION WITHOUT THE USUAL INSANITY


Return to posts index

Emre Tufekci
Re: Copyrighted material problem
on Aug 16, 2007 at 10:28:01 am

Hi Mark,

Thanks for the response, When I was talking about "fair use" I was only reffering to educational and reporting categories. Not documentaries.

From Copyright.gov:

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered


Return to posts index

mark raudonis
Re: Copyrighted material problem
on Aug 16, 2007 at 1:05:01 pm

[Emre Tufekci] "If I wanted to do a research about the music of metallica and it's effects on teens for educational purposes. And again they would have to be the focus of the study! OK/gray area."

Yes, grey area.

The key here, as you've quoted above, it the nature of the project (for profit or educational).

I think most words of caution from people here are about commercial projects destined for broadcast or "industrials" done by "deep pocket" corporations. In that case, I'd err on the side of caution and clear any and all music.

mark




Return to posts index

SofaKing
Re: Copyrighted material problem
on Aug 27, 2007 at 9:20:19 pm

Unfortunately, none of your 'fair use' arguments stand up against the first law that gets violated in EVERY case, which is copying the song or movie clip from it's original source into your editing system. The Millienium Digital Rights Copyright Act of 2001 (I may have the exact name wrong) was drawn up in response to the pervasive pirating of music and movies on the web. Lawmakers went an extra step in setting up a felony at the point of digitizing. Just read that little FBI warning at the beginning of every DVD on the shelf...
This new law has been used on multiple occasions to go after COLLEGE STUDENTS WITH NO MONEY. They have even sued the parents of 12 year old girls who illegally downloaded material to their home computers. (Google it if you don't believe me...)
No amount of "You'll NEVER get caught because no one cares about this minor stuff" rancor would convince me that a lawyer for one of those violated entities would ignore your "deep pocketed" corporate outfit, given knowledge of the activities. The statement that "Federal lawsuits are too expensive to pursue" only makes sense for the defendant wanting to settle out of court. Those lawyers who would dare to rip those deep pockets open to get their client's compensated will not hesitate to drag you right into court and claim their costs as additional damage.
A standard indemnification clause would release the producer of culpability if drawn up correctly. Record contracts and other productions almost always have something of that sort to protect both the artist and the producer. Otherwise, how would the producer protect his interests if the artist were to submit an obscure song from another artist as their own work? The producer must obtain the indemnification clause to shield himself from the laws protecting other's intellectual property.
It may be for a small audience and no one who matters may ever see it, but it's still wrong. What if that artistic video you'd been working on for years was suddenly used to sell or promote a product or idea you didn't agree with? You'd want to be compensated. The artists your company refuses to pay would probably feel the same way.



Return to posts index

<< PREVIOUS   •   VIEW ALL   •   PRINT   •   NEXT >>
© 2017 CreativeCOW.net All Rights Reserved
[TOP]