Is one step to the right of a copyright violation
Let us paint a hypothetical picture:
Studio is hired to design scenic video for major rock act's concert tour. Major rock act has a 'friend' who will produce some of the content. 'Friend' arrives with content cut from feature film that utilized some of the major rock act's songs.
Studio (and designer from studio) becomes alarmed. Inform band management that clearly such content cannot be used without permission. Band management responds: "don't worry about it. We'll deal with it. We did the music for the movie so we have permission". This smacks of recklessness to designer. Business types at studio, and Designer's Manager respond by saying "We'll get the band management to sign a release that absolves us from liability". Designer doubts this matters, either legally or practically, because Major Media Outlet who owns the film would likely sue everybody involved and see who it sticks to.
Can you guys comment on this situation, and on the REAL protections that either would exist or not, by the designer giving the band a release to sign ?
Many thanks... and great to see some of my old pals still here helping out in this zany world we live in...
[Bob Bonniol] "Designer doubts this matters, either legally or practically, because Major Media Outlet who owns the film would likely sue everybody involved and see who it sticks to... Can you guys comment on this situation, and on the REAL protections that either would exist or not, by the designer giving the band a release to sign ?"
I am not a lawyer, and this is not legal advice -- but I think your instincts are absolutely right. Even if this hypothetical release would hold up in court (which I doubt), I think you're right that the designer could easily be named in the lawsuit. Personally, I'd rather not spend my time in litigation, even if I thought I would win.
As always, professional legal advice would be more valuable than free Internet advice.
Principal & Designer at Keen Live
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It is always surprising to find out how little control the artists have over their own work, once it becomes part of the oozing corporate matmos. The theoretical band in your hypothetical situation could very likely get "fined" out of their own royalties for misusing their own music!
And as my mom never fails to remind me, I'm not a lawyer either, but notwithstanding that, put yourself in some hypothetical judges' robes for a minute and try this out: A person working as an accomplice to a crime has a signed piece of paper from the head of the criminal enterprise saying not to blame this guy for what the head criminal decided to do, though he went along on the caper in a small capacity as lookout. That's what that theoretical "release form" is. It is basically a document you're going to show the court that says you KNEW going in that what you were doing was going to break the law, decided to go along anyway, but that somebody who is NOT a judge but is part of the law-breaking group is somehow going to grant you absolution and a free pass for participating in the crime anyway?
Did I get that about right??? :-)
So, judge, what would your ruling be in that case, hmmm? BE HONEST, NOW.
I have seen contracts where the production company lets the responsibility of legal copyrights to the client. I don't remember the exact words but it was something like this:
"The client is responsible to get the legal rights of any music or images used in the production"
(I'm in Mexico)
Artists often don't own or control their own music, their publishing company does. They don't own or control the film their music was used in, the distributor and/or production company does.
Having a peice of paper saying you aren't liable won't matter if you knowlingly participate in copyright infringment.
I have a clause in my contracts that says I am not liable for content my clients provide, usually related to pictures. But if they send me a Madonna song to use I am not touching it.
Media Production Services
Winnipeg, Manitoba, Canada
Just have em sign a waver that assumes all responsibility for the content. Stipulate that "designer" cannot be held accountable in any way. If they sign without hesitation, sweet. relax. If they balk, know it's because they are uncertain and pitch design concepts they can actually use.
While I realize it's not "proper business", I really do see this a lot. I can tell you my reel has music from a prominant artist and no contract was drawn up for it. It was as easy as asking while they were saying thank you for a job well done on another project. Not quite the same ting but I'd be surprised if they are just blowing smoke. Truth be known, your having them sign something will probably just result int heir actually getting the right paper work done on their end.
I hate to disagree with the very agreeable Grinner, but again, asking the client for a memo to indemnify you for breaking the law on their behalf carries exactly zero weight with a court. In fact it just makes you *more* guilty, because it shows you had an inkling that what you did for them was technically a violation of copyright, and you chose to go ahead anyhow.
The person asking you to violate the law, saying they will cover any costs YOU incur, has no legal basis or standing to make good on that offer. That paper is not enforceable anywhere. it is a complete fiction, a fairy story you're telling yourself. It may make your conscience quiet down, but it does less than zero for protecting your business interests, it only adds danger.
Ask yourself if this isn't like letting someone borrow your car to do Lord-Knows-What, with no insurance. You're really going to put yourself on the hook for anything bad they do?
Yeah Mark, I tend to agree. My attorneys have advised much the same thing previously... (and by the way I love ya as always Grin )...
In this case, to add some info, it's not ME with my ass in the wringer, but it is a good friend. I just flat out won't use content in shows that the client can't actually show me written proof of rights acquisition... I've learned my lesson. But my pal is in a tough situation, and reached out to me for an opinion. They've sampled some hugely prominent film and photographer/artists. And while this gig may not be particularly worth fighting about it, people involved with this gig, have way bigger gigs in the offing. So he's not eager to be 'difficult'. Sigh. Why does doing the right thing have to get you branded as 'difficult' ? Something to muse on later in buddhist practice perhaps.
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"What's popular isn't always what's right, and what's right isn't always what's popular".
I am the first to admit that these ethical debates are all well and good, but typically all that goes out the window when it is *you* that has to make the call, on the spot, and you have mouths to feed, and the very real prospect of not being able to continue to feed them, soon. This is where you find out what your character truly is, and you may *think* you know what you'll do, but I pray daily I never have to put that to a real test. And in Grinner's defense, he's demonstrated that he's willing to walk away from money, if his personal code of honor doesn't like a deal or a player. He's a guy who isn't afraid to take those big risks, so when they do pay off, nobody begrudges him that they pay off well.
Me, I do not enjoy roller coaster rides. I don't really gamble, and never what I can't afford to lose. This idea of risking the business just to take a paperwork shortcut is potentially a HUGE gamble, and the game is rigged so the house always wins. Your ONLY hope is that they never see you in the first place, but the more outrageous the copyright offense and the more visible and high-profile the project gets, well.... you're just asking for it.
I have to admit, I am much more of an artist than an lawyer. I dislike ties and know from my years in the field if I side with them it'll cost me money. That said, I am the first to yell (proudly) that I am a horrible businessman. Great producer/shooter/editor, yes, but an absolute horrible businessman. I work with no contact in most cases and when a cool dude looks me in the eye and tells me something, to this day, I'm like "sweet". A fist bump is all I need. This is not ignorance. It's a choice. A bad one? I guess if I were homeless while standing by it. I'm in the friend making business and the truth is, most of my best friends started as clients. I call them dude, not sir. They call me grin, not Mr. Hester. I in no way am advising this practice. Just sayin' I take pride in remaining a one man band after all these years and a big way I have done that is by being a fellow dude... not the man.
All that said, man, Bob, you have much more to loose than I do. Never listen to me, brother, lol. I'm a little LLC who likes to one on one with whomever I encounter. I'm neither impressed nor intimidated by the rituals of modern business. I'd do better with a funky hat in the middle of nowhere in 1842. Just gimme one badass media suite in my old school log cabin.
I think the consensus is - get something in writing, preferably from the client's attorney. You may be a contractor, but you are low hanging fruit to someone who feels their copyright has been violated. The band - if their music is distributed by a music publisher - likely does not 100% control the rights to their music. And if their music was used in a movie - they have no right to the movie footage - even if used in a music video.
But this is of course opinion - run this thread past your own lawyer. Pay the $300 for some good advice - and take it.