Covering One's Behind
Another question. I have a friend in a unique situation. If a video editor works as an employee for a company, and that company repeatedly uses copyrighted music to which they DO NOT own the rights in their productions, can the editor/employee be subject to legal persecution should the company be caught using said music? Or does potential legal persecution rest on the shoulders of the editor/employee's boss? The editor is putting these videos together knowing that his superiors are supplying him with copyrighted music. The videos are used for broadcasted productions that are seen by thousands of people. Does the editor/employee have a moral obligation to take action? What advice should I give my friend?
Thanks in advance.
Even if your friend didn't know, the law is still the law and as they say, "ignorance of the law is no excuse and does not make one innocent."
That is fact, everything else is conjecture and speculation.
Here's a test to make the point: let's say for speculation's sake, that I claim that I don't know robbing a bank is wrong and I tell the police when they catch me with the money that I had no idea that robbing the bank was wrong. Would they let me go?
[Aaron Cadieux] "can the editor/employee be subject to legal persecution should the company be caught using said music?"
The proper term would be legal "prosecution." Persecution is the mistreatment of an individual or group by another group, as in religious persecution.
And yes, the editor could be prosecuted, or more likely sued, though most often only those with "deep pockets" are ever targeted with civil action.[Aaron Cadieux] "Does the editor/employee have a moral obligation to take action? What advice should I give my friend?"
Your friend should definitely alert his boss/supervisor to the facts, and if the boss/supervisor insists, your friend has to make a moral choice to either risk losing the job, or continue to break the law. That's a decision no one can make for your friend.
David Roth Weiss
David Weiss Productions, Inc.
POST-PRODUCTION WITHOUT THE USUAL INSANITY ™
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As far as I know Editors has in the past been successfully prosecuted for not using cleared music. Don't know the specific case.
The editor (and production company) in question could ask for a written request and confirmation from client that they want that specific music to be used, and that they will clear it for usage. And then supply them with a cue sheet. This at least will go some way to support the fact that the editor asked for the music to be cleared and that the client took responsibility for the content.
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[David Roth Weiss] "The proper term would be legal "prosecution.""
There's another legal term, "accomplice". If your friend is assisting in violating someone's copyright, he or she is complicit in the act.
Legal Disclaimer: I am not a lawyer, nor do I play one on TV, nor do I edit TV shows about lawyers, but I did see a play about lawyers this evening
Post production is not an afterthought!
I think "Persecution" best describes what often happens in this particular forum when one asks a stupid question for the umpteenth time.
It's a bit of a spectator sport for me.
[John Cummings] "I think "Persecution" best describes what often happens in this particular forum when one asks a stupid question for the umpteenth time."
A little more accurate description might be: when the SAME person asks a different version of the SAME stupid question for the umpteenth time.
Although I favor the use of the word "electrocution."
Interesting you put it that way, becuase I don't seem to remember ever asking about music copyright in the past. If you can dig through the archives and find a previous post of mine regarding music copyright, I'd be interested to read it. If you want to "persecute" me for using "persecute" instead of "prosecute", go right ahead, but to call my question stupid is insulting to my friend. After all, his livelihood is at stake.
Watching someone like you post a statement without doing his homework is a bit of a spectator sport for me.
Don't get your hackles up, I wasn't trying to imply your question was stupid, although I see now that my post could have been interpreted that way. For that, I apologize. In fact, my post had nothing to do with you, other than your word usage. I was just commenting on the word persecution, which just happens to be the fate of a few people that petition the high court of the Business and Marketing forum...and it's one of the reasons I tune in here.
However, I will plead guilty of being off-topic, and as a result, expect to be persecuted here to the full extent of the law.
I am not a lawyer but there are too many variables that even a lawyer could not answer with any certitude.
I can raise some of the issues I think a lawyer might raise.
Did the editor have control and was he staff, freelance, on line producer?
Was he coerced - did he dissent or otherwise notify his employer and then had his job threatened?
Did he believe it was a temp track - may still be illegal due to sync rights but no believed he was going to replace it before use?
Was he lead to believe the rights were cleared or in the process of being obtained
You may have answered or alluded to answers to some of the above but those are some of the questions that I think would be raise that would have impact on level of responsibility and penalty to the editor in question.
All I'd offer is my personal opinion on what I'd do and they relate to the above questions and your post
I'd notify the employer and producer that I believe the music is copyrighted and would like to see or otherwise have them affirm they have procured the appropriate rights or affirm that they are in the process of obtaining those rights. In my opinion, if the editor is not the final decision maker (has creative control, is the producer) then you may have done all you can do at that point.
If the response from the decision makers are any of the following: that you are to use the music and not ask questions or you employment will be terminated, tells you that they have not and will not pursue the rights, the editor has a decision to make with knowledge they now have.
If the response from the decision makers are that they've obtained the rights, pursuing the rights, it is only a temp track, the editor has information that may lead to a different decision. I'm honestly not sure if the editor has the legal responsibility to ask for proof of the above.
BTW the issue of the legality of temp tracks is in itself something I've never seen discussed. It may still be a synchronization issue even if not broadcast.
I do know that many editors work with temp tracks. In addition many editors may be asked to use music while the rights issues are still being worked on.
At some point somebody other than the editor is making the final legal decision on use. For me the question is whether the editor inquired and was in any way informed that led the editor to believe they were knowingly participating in a legal violation.
I would say the editor has a responsibility to ask the questions to both the employer and the producer so that he has information to make a personal determination.
Just my humble opinions.
I have been in the same situation when I produced for a company that wanted me to use what I call "Stock Footage By Blockbuster", plus famous music. I did what they requested since I was up against the deadline but I had them sign a Letter of Indemnification that I found on the internet, stating they would handle all my legal costs if I was sued.
I have read over the years of video vendors and their clients being made an example, the most famous case being an Amway convention using Beatles music and was turned in by the hotel AV folks for a reward. I don't know if your friend would be considered a party since he is an employee but I do know that attorneys cast a wide net, naming all parties involved, then sort through to find what they call "deep pockets". But just being named may cause your friend to have to hire a lawyer for a couple of hours and letters.
So in sum, your friend should download a generic Letter of Indemnification and have them sign it. And if he doesn't get a promotion or raise that he believes he is entitled to use this issue as blackmail.
In a similar story to Ned, I worked at a facility which did a video for a corporate even that used copyrighted music without license (not my project luckily). The excuse was that it was a one time showing and wouldn't be distributed. Apparently one of the company's employees was let go shortly thereafter and managed to procure a copy and presented to a lawyer who saw the dollar signs.
Starting to recall how I learned about Letters of Indemnification:
The reason I demanded the Letter of Indemnification:I agreed to their request because it was a ONE TIME SHOWING for a modest size meeting. Well, the president loved the video so much he said, "Make 100 VHS copies and send them to all our retail outlets." I naively bring the beta master to the duplicator, fantasizing about how to spend the extra $500 I just made on VHS dubs (remember those days?) and the next day I get a call from the duplicator and they want to see my licensing paperwork for the music and footage of major movies so they won't get in trouble. Otherwise I would have to sign a Letter of Indemnification and my response was, "What's that?"
So I made the dubs myself three at a time. Here is the famous case I alluded to in my post regarding the famous ASCAP vs Amway case that taught our industry to not do this anymore:
And I also know from experience: Don't use Elvis impersonators!
[Ned Miller] "your friend should download a generic Letter of Indemnification and have them sign it."
The thing is, that doesn't work.
I can't borrow my buddy's car, get a ticket for speeding, and tell the officer "It's ok, it's my friend's car and he said I could speed and he'd take the heat... I even have a note from him." Guess who gets the ticket? You do.
If anything, the Letter of Indemnification simply proves the editor knows he was doing something illegal. Then you can't even beg for mercy by pleading ignorance.
Fantastic Plastic Entertainment, Inc.
When I sign a contract to produce a video for a company, a contract that is drawn up by the client's legal department, there is usually an Indemnification Clause in there, so when I sign the contract I agree to pay all the legal expenses that they may incur defending themselves. By having that clause in there does not mean they are planning to do something illegal. So I don't understand the point of your post, maybe an attorney could chime in.
I think we being prod & post people, we don't understand what the original poster's friend needs to do to protect himself if not a Letter of Indemnification. I'll ask the next attorney I run into, I mean meet, never would want to run into an attorney...
[Ned Miller] "By having that clause in there does not mean they are planning to do something illegal. So I don't understand the point of your post,"
No, having that clause does not mean they are planning to do something illegal. But it also doesn't make it any LESS illegal if they go ahead and do that thing anyway... which apparently the orignal poster's friend was doing (or at least being asked to).
If an editor has a client sign an agreement saying that the client is accepting the responsibility of securing all rights to footage, music, and any other copyrighted elements and intends to do so before any distribution which would violate the rights of specific rightsholders to those elements... that's one thing. But if an editor has a client sign an agreement simply stating that the client is responsible for any claims made of copyright infringement, and the editor has them do so with knowledge that a copyright infringement is willfully forthcoming... then that's another. The client can't "give permission" for the editor to break the law.
[Ned Miller] "we don't understand what the original poster's friend needs to do to protect himself"
That answer is the easy one. If the client does not have approved music clearances in hand, don't use that music. That's the only real and absolute surefire protection.
Fantastic Plastic Entertainment, Inc.
he who pushes the red button is the pirate.
Sometimes just saying no really is the best policy. Heck, I once had a guy want me to pirate the FBI warning off a DVD for his video. lol
I have found just laughing like I thought they were kidding to be a great out.