Client wants to assume music liability
I have a client who wants to use a popular song for an internal corporate video. I told him there is no way I could do that due to liability issues. I could get sued. He is adamant about using the song and says he will sign anything I need so the liability will fall on him. This has always been a great client and I would hate to loose him. Is there anything I can do or have him sign that will protect me and my company? I'm guessing not, but thought I would throw it out there.
[James Disch] "Is there anything I can do or have him sign that will protect me and my company?"
Nope. Not by a long shot.
If you borrow someone's car, but get stopped for speeding, you can't hand the cop a note from the car's owner that says he gives you permission to drive as fast as you like and that he will take responsibility.
Don't do it.
Fantastic Plastic Entertainment, Inc.
This has been covered so much it's not even funny. Will this be put on the internet or television? If it's an
internal thing, is there really any chance that the artist or one of his/her representatives are going to come along and watch this video and sue, really? Really?
Every single network uses unlicensed popular music for upfront sizzle reels and are played in front of thousands of advertisers every spring that, if they can get away with it, I'm pretty sure you guys can do it. Although now that you've told the whole world what you're doing.....
Sure, it's not necessarily right, but to lose a client over something that you're merely an editor on is stupid. The producer is responsible, not the guy pushing buttons.
Magic Feather Inc.
If it's COMPLETELY internal, then yeah, you'll get away with it. But EVERY single corporate video we've ever produced ended with the client saying, "Oh, now give us a version we can put on the web." Every single time. THAT's where you'll run into trouble.
But internal? Will you get caught? No. But the question wasn't "Could I...?" or "Should I...? Rather the original question was asking whether there is something you can get them to sign to take all the responsibility.
The answer to that question is still "No."
If you are an employee of the company, there are few worries. But if you are a legit outside production company contracted to do the gig, your responsibility and liability is much greater than that of just a "button pusher."
And by the way, the "chances of getting caught at it" is a completely separate issue from the legality of it, or whether it's "right."
Which it isn't.
Fantastic Plastic Entertainment, Inc.
In these internet times, if you make it, and give it to someone, you cannot promise it will never wind up online somewhere. You could ask people like Pam Anderson, Tonya Harding, Paris Hilton, Rob Lowe, etc. etc. etc. if they ever "expected" their "private home movies" would get out on the net. Yeah, your client is not exactly the same as those celebs. I'm exaggerating to make a point. But know that even something done for "internal company use only" ceases to be in your sole control the day you hand over the tape, disk, file, etc. and so your production reputation then rests in hands you may never even know about, and circumstances you never knew about. YouTube has literally thousands of clips on it right now that a lot of people regret.
So don't take the "internal use only, we'll just keep this our little secret" excuse as anything to stake money on.
And yes, it's the camel's nose under the tent; if you agree to that use, they'll keep pressing for more of the same kinds of abuses. Offer pre-cleared sound-alikes, these are very easy to get nowadays. I would tell them you are not a legal professional, to have their lawyer or company legal department draw something up.
The company lawyers will kill this problem for you more effectively than you ever could.
[Mark Suszko] "So don't take the "internal use only, we'll just keep this our little secret" excuse as anything to stake money on. "
A video is edited with a "temp" music track of well known recorded music.
It's handed off for approval.
Person receiving master says he needs to show it to a few people for approval.
"A few" people is a corporate event of a very large company with several hundred people.
The video is about how they're going to tighten the belt and pull together (after the massive round of layoffs).
An upper mid level manager (just not quite high enough for the golden parachute) who was there is given his walking papers the next day.
His cousin is the accountant for the record label owning the recording.
He tells his cousin who tells the record label.
Another employee taped the event on cheap camcorder and posts on the web.
Next thing you know the record label has found the video online and has an unhappy ex-employee looking for vengeance and there's a team of lawyers.
Who wins, who's "guilty?" What's the truth?
I wont say anymore so don't ask questions. Think about it though.
A head honcho at one of the bigger multi national companies in the world is retiring.
They bring in the producer of a nationally known TV show.
The producer brings in the broadcast elements used in the TV show.
He likely was hired for both his talent and access to these elements.
Major entertainment figures are hired to be part of this.
Huge sums of money are spent.
Producer says to editor they're not going to even try to get clearance for the elements but swears up and down it's one time to show to a small (and very elite) group of people. Just a very select group of co-workers (upper most management) of the head honcho.
Producer really watches his backside. There's only a master. Absolutely no dubs are permitted and that master stays with the producer. It's shown and then destroyed. All elements generated in creating the video is destroyed (minus the ones that belong to the show they were "borrowed" from).
True story? Is your client following this level of caution?
Todd: "If it's COMPLETELY internal, then yeah, you'll get away with it. But EVERY single corporate video we've ever produced ended with the client saying, "Oh, now give us a version we can put on the web." Every single time. THAT's where you'll run into trouble.
In that case, you do like I did last year with ABC's "In The Motherhood" Upfront trailer - you make a version with library music (or some of those 'free' Soundtrack Pro cuts) - and you bill another day for the work.
The production of the piece isn't where it's illegal - we made tons of spots over the years with pop music that didn't get cleared for air, and weren't licensed. The illegality comes from the broadcasting of the work, in which case the corporation or persons that authorized broadcast and/or uploading are responsible. With that in mind, the guy can't make calls over what is done with the work he cuts. If that WERE the case, none of us could edit anything, ever, because we couldn't guarantee where, when, and how that work would be used. Clearance may only for one week, or one month, or on one network, etc. We'd all have to request masters back of all work delivered to clients after the clearance period, which is highly impractical. That's why the responsibility of clearance falls on the broadcaster or executive producer (the guy who pays). The editor is not a nanny, and to lose a client because of that would be silly. And that's also why there's nothing that can be signed to clear the editor, because it's not the editors responsibility to worry with that kind of stuff. He can only warn, at most, and suggest the producer consult with their legal department or lawyer.
Don't lose a client over this. If you get seriously worried, have a backup with free music and give it to them with the final delivery. If you're STILL worried, use blank slates and labels. And for reference, this has been nearly every single post house in Atlanta, as well as most of the ones in LA. At no time did any editor suggest to me or any of the other dozens of producers I work with that we should deal with clearance.
Magic Feather Inc.
[John Davidson] "And for reference, this has been nearly every single post house in Atlanta, as well as most of the ones in LA. At no time did any editor suggest to me or any of the other dozens of producers I work with that we should deal with clearance."
You guys are playing roulette...the house always wins...eventually.
What you are suggesting is simply illegal.
A client will certainly be the focus of any lawsuit as they do, usually, have the deepest pockets. However, I've also seen production houses the object of judgments that are structured as a percentage of gross for some number of years...
I'd consult a copyright/trademark attorney to get a final answer to whether or not the client can actually assume full responsibility and hold you harmless...I'd bet there would be some sort of a document involved and they would have to lie in that document to in effect make you an "unknowing" participant...
It's like being hired to do anything illegal...the very fact that you seek a hold harmless agreement demonstrates that you clearly know what's going on.
This conversation and all of its variations get tiring...
It's illegal. You're in the content business...why is it that you're so willing to rip off someone else in the content business?
...I'll bet that the same people who are doing this sort of thing are also rock-steady on the fact that they own all their raw footage when they were paid for every hour they put in acquiring it by their client...because of course "that's the law".
[Tim Kolb] "What you are suggesting is simply illegal. This conversation and all of its variations get tiring... It's illegal. You're in the content business...why is it that you're so willing to rip off someone else in the content business?"
Here, here, Tim. Nicely stated, to the point and spot on.
Creativity is a type of learning process where the teacher and pupil are located in the same individual.
Perfection is achieved, not when there is nothing more to add, but when there is nothing left to take away.
- Antoine de Saint Exupéry
I know the question of "can I use copyrighted music for my video" has been covered to great lengths. Every professional in this market should know the answer to that. The question was: Can the client, (producer) take on the liabilities of using such music.
Thanks for your responses. This confirms what I was thinking. There is no way around this. Maybe I'll cut the video to a similar tempo and let him do what he wants with it after that...
[James Disch] "This confirms what I was thinking. There is no way around this"
I am not a lawyer (although I certainly spend a significant amount of my time around them) but I will raise some questions for you and others to think about.
Is everyone who "touches/uses" the "uncleared" musical recording in question responsible and/or equally responsible legally/civilly?
the client is the producer, you are performing your job as a work for hire. Is the PA responsible because they were told to buy the CD? Is the assistant editor responsible for pulling the track off the CD into the NLE? Is the editor legally responsible for the recording use for following the producer's instruction by syncing the recording to video? Did any or all of them need to be shown proof that the appropriate rights were obtained? Who was responsible for obtaining clearance and did any or everyone need to be shown that proof to perform their job function? Does the Producer bear the all, most of the responsibility, or is all responsibility equal?
You are the producer and a client asks you to use music that's not cleared. Who has the legal responsibility in this situation?
Are both the above legally the same? How is legal responsibility established?
[Craig Seeman] "You are the producer and a client asks you to use music that's not cleared. Who has the legal responsibility in this situation? Are both the above legally the same? How is legal responsibility established?"
Both, but especially the one with the deepest pockets. The one with shallow pockets is mere cannon fodder that will be dispensed with with merely a volley or two.
[James Disch] "...he will sign anything I need so the liability will fall on him."
Well, that would be a mechanical sync rights form from the publishers. Simple.
Seems this discussion diverged into two different questions and schools of thought...
1) Will I get caught or is there any way to absolve my liability?
The answer to this question is fuzzy. There are ways around it, and if done right, no one may be the wiser and you won't get busted for it.
2) Is this an ethical practice?
Easier answer. No.
Not to get all "holier than thou," but I find the "It's only wrong if you get caught" attitude a bit unsettling. All of us in here have produced video which we own and retain exclusive rights to. How would you feel if you discovered after-the-fact that the footage that you owned, restricted, and made your living from cropped up somewhere in some yahoo's project that you've never even heard of and without your permission to use it? Not good, I bet. I sure wouldn't.
Fantastic Plastic Entertainment, Inc.
[Todd Terry] "Not to get all "holier than thou," but I find the "It's only wrong if you get caught" attitude a bit unsettling. All of us in here have produced video which we own and retain exclusive rights to. How would you feel if you discovered after-the-fact that the footage that you owned, restricted, and made your living from cropped up somewhere in some yahoo's project that you've never even heard of and without your permission to use it? Not good, I bet. I sure wouldn't."
Since Tood is ill at ease about getting all holier than thou, I'll say it clear and simple: anyone who creates any kind of content for a living (or even for fun) and doesn't respect intellectual property rights, is an IDIOT -- one whom I hope will quickly get their stuff stolen so they get a little relativity.
Now where's my coffee???
A precaffeinated and thereby cranky,
I am dealing with almost this exact situation right now. Client wants a trailer for a short film put together. He brought me some songs from a local band, and "is in discussions" to get the licenses. I am expected to edit as though he has the licenses, and he'll make sure he has them before posting the trailer online. Time crunch of course. I have made it very clear, in writing, that it is illegal for him to broadcast the video without getting the licenses for the music used. I will gladly create a spec version with a watermark for him to approve, but won't let the final product leave my hands until I have proof of licensing. He's not happy. I get the "I'll assume all legal responsibility" speech every day.
If you tell your client you won't do it because it's ILLEGAL, and they don't respect that, then perhaps they're not worth keeping as a client, especially if you explain that YOU can be held liable, regardless of what he signs (as far as I know). Do this "small" favor for them once, see how many times it comes back up. The only agreements you can have them sign is to limit how many times, when and where they can show the video, and an agreement to pay any and all legal costs you incur should something go wrong, which may or may not stand up in court when you go to recoup your costs. (I am not a lawyer, check with your own atty before signing anything.)
Sucks to lose a client over something so trivial (to them at least), but better to lose a client than your entire business. Is there any way just to get the license for the song and add it to their bill?
Rob this does bring up a bunch of issues and approach to the issue itself.
I was editing a historical documentary. The video came from stock as well as private collections. Nearly all had window time code. Most "providers" would charge by amount used so it wasn't paid for at that point in the edit.
The producer also was using period music coming from old recordings. For the most part, none of the rights had been cleared at the point of use. The project took a few years BTW. I was very much privy to listening to some of the rights discussions as the producer was often making the phone calls during the edit. Given the age of the music it was often very difficult for the producer to track ownership of the various rights (publishing, recording, etc).
It's often not possible for all clearance negotiations to be completed at the time editing commences.
Of course all clearances were completed before the piece aired on Discovery channel and went on to international distribution followed by VHS and DVD sales.
Do you (or others) believe one must not use elements until after all clearances are completed and signed?
What about the use of "temp" tracks? Should that be a practice we cease to use?
I don't doubt there's even been occasions where the "temp" track become "the" track and then clearance was sought and completed.
This is what's frustrating to me about this whole thread. It is not the editor's responsibility to dispense legal mandates to clients. That is far beyond the scope of the editor's role.
I know lots of editor's think producers are useless, but music clearance is the responsibility of the producer and client. What's next? Will editor's start demanding to see the network's contract with Extreme Music or Killer Tracks? Just because it's not popular doesn't mean it's not intellectual property. If said library music contract expires, will you all start calling your old clients demanding masters back, including all copies of spots and shows? NO, you won't. You'd lose all clients if you tried.
I've licensed dozens and dozens of popular songs in the last 10 years through my network clients. In order to obtain the licenses, we had to make rough cuts, which are technically illegal until the license clears. That's just how it works. That said, no network will allow anything to air without music clearance. Networks have people with dedicated jobs just to obtain clearance.
It's not even that expensive to license a song for use in a small private event. There are many smaller services that do just that on this forum listed in previous threads. I'm sure if you rate all our time at $100 an hour, the amount of time we've all spent talking about this would more than cover the cost to license this song for the corporate event in question.
And just to be clear, I do not endorse creative theft. All music I've used in my completed, aired work was bought and paid for.
[John Davidson] "It's not even that expensive to license a song for use in a small private event."
Hmmm... maybe it depends on the song, I dunno.
Last year a corporate client wanted us to pursue licensing in a similar situation for a private event... they wanted a specific track of an almost 20-year-old (and not all that popular) C+C Music factory song. It was for a one-time usage for a private event. We told them it would be expensive, but they wanted to pursue it anyway. By the time we found all the right hoops to jump through, the rights were going to be something in the neighborhood of $35,000.
My other horror story involves country music star John Anderson. Several years ago we produced a television commercial for a line of barbecue sauce he was selling. Using his own known music was proving impossible (the track he wanted to use, he wrote with a now-deceased partner, they jointly owned the publishing rights, but Sony owned the recording, and it was getting very complicated). In the end John composed and performed a similar-sounding track just for the spot, because at that point the red tape was getting to be about waist-deep and growing.
Fantastic Plastic Entertainment, Inc.
Oops, maybe we should bill $35,000 an hour then :-).
There are some wild cards when it comes to clearance. A Kidd Rock song was 80k for one week, and a Boys Don't Cry track was only 4k for a week, but this was air on one of the Turner Networks, not a private event. I've had great luck with 80's music, but I know to stay away from C&C now!
C + C Music factory? Yikes. That client needs a stern talking to about musical taste. :)
We had the same situation a few years ago and we solved it this way..
We cut the piece together with the music they wanted. When we were done, however, we gave them a master without the music. It was now their task to figure out how to play the same music from some device or, if they have any kids who are into pirating music and putting songs together, they can do a custom DVD for them.
As far as a legal document, have them purchase an insurance policy that will pay all of your legal expenses in the event that they (you) are busted. Or, have them put $50k on deposit with you.
Best thing is to say "You are asking me to break the law". the conversation should end right there.
ASCAP-BMI has a system in place that rewards hotel A/V for info on companies that use unlicensed music at conferences.
It's a dry heat!
Sony HDCAM F-900 & HDW-2000/1 deck
5 Final Cut (not quite PRO) systems
Sony HVR-M25 HDV deck
2-Sony EX-1 HD .
No "client" will ever ask you to do such a thing.