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Copyright video question

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Aaron SheffieldCopyright video question
by on May 15, 2013 at 5:33:36 pm

Problem I am sure many of you have had... I have a client who is very persistent in wanting to use copyrighted material, i.e. old movie clips and or music, in a video production that will be shown company wide in multiple locations across the USA. It is not a public facing video, but I am afraid it will get online. I have advised strongly against using any copyright footage (non-stock), but they are persisting.

Is there any kind of form that I can make them sign that holds their company liable for any content and gets me legally off the hook? It may come down to them going to another shop if I do not agree to put in some of what they want. I think if I had a form like this their legal dept. may step in and forbid the usage.

Thanks for your help!


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Craig SeemanRe: Copyright video question
by on May 15, 2013 at 7:06:57 pm

While I'm not a lawyer, at my best guess, you could make the contract a work for hire, making them the producers and responsive for the rights clearances.

If you are the producer/creator you are legally responsible and, at best, can sue them for what you were sued for. That wouldn't absolve you any more than the getaway car driver is absolved for a bank robbery.

BTW I once worked at a long gone post house that used material for a "one time" showing to a closed corporate audience. Shortly after one of the employees was fired, happened to have a VHS copy of the video and showed it to a lawyer friend for vengeance. These days it would be even easier for a copy to wind up on YouTube or, in the hands of a lawyer.



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Aaron SheffieldRe: Copyright video question
by on May 15, 2013 at 7:11:55 pm

Thank you for your advice. Yea, these days even in house videos can easily get posted by any employee with a few clicks. I make it a policy never use copyright material of any kind without the rights, but am surprised how many companies think it is a great idea.

Thanks again.


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Todd TerryRe: Copyright video question
by on May 15, 2013 at 7:20:09 pm

There is no form that absolves you of responsibility and puts the liability on the client.

You can't get caught speeding in a friend's borrowed car and give the cop a note that says your friend agrees to pay the ticket, just send it to him.

You can't legally work as a hitman and not get charged with murder because someone else hired you to do it and says it is ok. If that were possible, I might have a different career.

Stand your ground. Do NOT use copyrighted material unless it is cleared and paid for. If the client insists, refer him to whichever competitor of yours that you like the least.

With what sounds like a big company, and showings in multiple locations across the country, this is not an "IF it gets out" situation... it's a "WHEN it gets out." The fact that it will get out is almost a complete certainty.

T2

__________________________________
Todd Terry
Creative Director
Fantastic Plastic Entertainment, Inc.
fantasticplastic.com



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Paul TrunkfieldRe: Copyright video question
by on May 15, 2013 at 9:03:21 pm

My personal feeling on this - explain to them that it is not in their or your best interests to be using copyrighted material due to the ramifications that could happen. If they don't listen and insist then thank them for the opportunity and walk.
You are better off without clients like that in my opinion!



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Mark SuszkoRe: Copyright video question
by on May 15, 2013 at 9:29:24 pm

You could ask those IRS staffers that did a StarTrek-themed convention opener, how "internal" any internal-use-only footage is.








(shhh, it's for internal use only.)


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Mike SmithRe: Copyright video question
by on May 16, 2013 at 8:58:17 am

You could contact the rights holders with details of the project and ask for a quote for rights clearance fees, so that you can show that to your cleint and then add that to your production quote if s/he wants to continue.


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Scott CarnegieRe: Copyright video question
by on May 16, 2013 at 3:34:00 pm

I have a line item in my contracts that says that I will not knowingly violate copyright on any terms. Even if you have a contract that shifts liability to the client you can still be held liable. A contract that shifts the burden of an illegal act won't stand up in court. Also, I respect property rights which includes the rights of content creators.

http://www.MediaCircus.TV
Media Production Services
Winnipeg, Manitoba, Canada


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Paul ForteRe: Copyright video question
by on May 18, 2013 at 6:33:19 pm

What exactly is copyright infringement? It's my understanding that these days its the act of uploading content (distributing)without the owners consent, and not necessarily the act of sampling and remixing for personal use. So it would be the uploader ("distributer") who'd face any legal challenges from the copyright owner, surely?

In other words, if it gets online - and you didn't upload it - how is that your problem? What specific law have you broken? Furthermore is the editor more responsible because he spliced it in? What about the colorist? Or sound mixer? Could they be held liable too?

Question: Has there ever been an instance of copyright infringement where the staff for hire (freelance or otherwise) was held liable instead of - or as well as - the owner, producer or distributor of the new media? (not seeking metaphorical answers such as hit men and nazis)


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Richard HerdRe: Copyright video question
by on May 21, 2013 at 12:48:48 am

I paid an attorney $250 to ask that question. He said, You don't own the work. I said but...the client. He said, if you want legal advice and a defense position my retainer is $5,000.

I'll look it up in Lexus Nexus. But that's a tough database and I ain't no lawyer.


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Richard HerdRe: Copyright video question
by on May 21, 2013 at 3:30:01 pm

I think it's reasonable to assert that the details of the imagined case you mentioned have not been tested. I could only find two cases that use the term "video producer." The cases are:

  • Dastar Corp. v. Twentieth Century Fox Film Corp., No. 02-428 , SUPREME COURT OF THE UNITED STATES, 539 U.S. 23,


  • and

  • Mynatt v. Lockheed Martin Energy Sys., No. 06-6319, UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT, 08a0153n.06.


  • Here's the quote from DASTAR:

    It could be argued, perhaps, that the reality of purchaser concern is different for what might be called a communicative product--one that is valued not primarily for its physical qualities, such as a hammer, but for the intellectual content that it conveys, such as a book or, as here, a video. The purchaser of a novel is interested not merely, if at all, in the identity of the producer of the physical tome (the publisher), but also, and indeed primarily, in the identity of the creator of the story it conveys (the author). And the author, of course, has at least as much interest in avoiding passing-off (or reverse passing-off) of his creation as does the publisher. For such a communicative product (the [**2048] argument goes) "origin of goods" in ยง 43(a) must be deemed to include not merely the producer of the physical item (the publishing house Farrar, Straus and Giroux, or the video producer Dastar) but also the creator of the content that the physical item conveys (the author Tom Wolfe, or--assertedly--respondents).


    Here's the quote from MYNATT:
    Mynatt's initial job in IMS was video aide, a weekly salaried position. In 1989, his position was reevaluated as video associate, a monthly salaried position. In 1990, Mynatt was promoted to Video Producer I. In that position, he produced and directed videotaped programs for DOE facilities at Oak Ridge. He retained that position until his termination in September 1999. At the time of his termination, Mynatt's position was titled Media Producer II, salary grade 3.


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    Richard HerdRe: Copyright video question
    by on May 21, 2013 at 3:42:50 pm

    another interesting case:

    LOS ANGELES NEWS SERVICE; ROBERT TUR, Plaintiffs-Appellants, v. CBS BROADCASTING, INC.; COURTROOM TELEVISION NETWORK, Defendants-Appellees

    OVERVIEW: The copyright holder owned copyrights to videotape footage of the beating of a truck driver during the 1992 Los Angeles riots. Plaintiffs claimed that a video news service owned by the broadcasting company's predecessor had distributed the copyrighted works to recipients including the network. The network used a few seconds of the footage to promote news coverage and as part of the introduction to one of its programs. Plaintiffs had agreed to a stipulated dismissal of their initial suit against defendants, but refiled their complaint after the parties failed to reach a settlement. The appellate court found, inter alia, that the district court erroneously excluded certain evidence on the basis of the stipulation agreement. As a videotape of allegedly infringing footage and its identifying slate were not hearsay and were sufficiently authenticated, there was enough admissible evidence to preclude summary judgment as to whether the broadcasting company was liable for infringement. However, the network's use of the footage was protected as fair use given some transformative use, the factual nature of the work, the small portion of footage used, and market considerations.


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    Richard HerdRe: Copyright video question (the EOM)
    by on May 21, 2013 at 4:45:07 pm

    HI-TECH VIDEO PRODUCTIONS, INC., Plaintiff-Appellee, v. CAPITAL CITIES/ABC, INC., Defendant-Appellant.

    No. 93-1090

    UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

    OVERVIEW: Plaintiff registered a copyright in a travel video as a work made for hire. Defendant used portions of the video on its television program without plaintiff's permission. Plaintiff filed suit against defendant alleging copyright infringement. The trial court entered judgment in favor of plaintiff. On appeal, the court held that because the video was produced in part by independent contractors, it was not a work made for hire and, therefore, the copyright in the video as a work made for hire was invalid. The court reversed and remanded the case with instructions to enter judgment in favor of defendant.

    OUTCOME: The court reversed and remanded the case with instructions to enter judgment in favor of defendant, holding that because the video was produced in part by independent contractors, it was not a work made for hire and, therefore, the copyright in the video as a work made for hire was invalid.


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    Richard HerdRe: Copyright video question (the EOM, sequel -- some good news)
    by on May 21, 2013 at 4:50:47 pm

    EVERETT C. DAVIS; BARBARA J. MOONEYHAM, Plaintiffs-Appellees, v. MERIDIAN FILMS, INCORPORATED; BENSON, BENSON & HENRIKSEN, The Partnership; ANNA L.M. BENSON; CYNTHIA BENSON; MARK HENRIKSEN, Defendants-Appellants. EVERETT C. DAVIS, Plaintiff-Appellant, and BARBARA J. MOONEYHAM, Plaintiff, v. MERIDIAN FILMS, INCORPORATED; BENSON, BENSON & HENRIKSEN, The Partnership; ANNA L.M. BENSON; CYNTHIA BENSON; MARK HENRIKSEN, Defendants-Appellees. EVERETT C. DAVIS, Plaintiff-Appellant, v. VIDEO GROUP, LLC; BODYLAB, LLC; ATHENA, LLC, Defendants-Appellees. EVERETT C. DAVIS, Plaintiff-Appellee, v. VIDEO GROUP, LLC; BODYLAB, LLC; ATHENA, LLC, Defendants-Appellants.

    No. 02-2469, No. 03-1026, No. 03-1346, No. 03-1493

    UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

    CASE SUMMARY

    PROCEDURAL POSTURE: Appellant videographer of exercise videos sued appellee producers of the videos, alleging that the producers infringed the videographer's copyrights as either author or co-author of the videos. The videographer appealed the order of the United States District Court for the District of South Carolina, at Columbia, which granted summary judgment to the producers, and the producers cross-appealed the order denying their motion for attorney fees.

    OVERVIEW: The videographer provided services in the production of certain videos under a compensation and royalty agreement, and the producers subsequently produced new videos which were composed of excerpts from the previous videos that were linked together with new footage. The videographer contended that he was entitled to additional royalties for the producers' use of his copyrighted works. The appellate court held that, in view of the videographer's admissions that the producers were responsible for choreography, directorial duties, final decisionmaking in the editing process, and creation of the concept underlying the exercise videos, the videographer could not be considered the author or the co-author of the videos for copyright purposes. However, the videographer's position was sufficiently reasonable to justify the denial of the producers' request for an award of attorney fees.

    OUTCOME: The orders granting summary judgment to the producers and denying the producers' motion for attorney fees were affirmed.


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    Paul ForteRe: Copyright video question (the EOM, sequel -- some good news)
    by on May 29, 2013 at 1:01:32 am

    Thanks for all the fascinating research ;o)


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    Richard HerdRe: Copyright video question
    by on May 21, 2013 at 5:34:15 pm

    [Aaron Sheffield] "Is there any kind of form that I can make them sign that holds their company liable for any content and gets me legally off the hook?"

    YES!

    I quoted a case over there -->

    You want to be sure the contract states "WORK FOR HIRE" in big bold letters, and you might want to reword appropriately the specific language from the case:

    the producers were responsible for choreography, directorial duties, final decisionmaking in the editing process, and creation of the concept underlying the exercise videos, the videographer could not be considered the author or the co-author of the videos for copyright purposes.


    You could probably get even more complex by mentioning "current market conditions" because it was an important consideration in a few briefs I read, 'though I can't find them now. The idea is something akin to "current technology makes sharing media part of the market conditions for being a video producer/editor. If you do not comply with the client wishes, then you will lose business." It appears the current Court is sensitive to business interests. In the cases where you do use copyrighted material for work for hire at the client's direction, then also be sure to attribute who owns the work -- vis-a-vis "the origin of goods." It's not so bad to have the client sign another form "My video editor explained that using copyrighted material is an infringement, but they think it is worth the risk."

    I'm not a lawyer, just a curious kind-of-guy -- and I'm not sure I'd do any of this stuff, but it's hard to avoid a client's needs. I totally understand that. The other weird point is all of this is about money. On one hand you can't ignore clients, on the other you can't expose yourself to risk. So what are you going to do?

    Have you read this? http://daredreamermag.com/2011/12/07/the-music-licensing-chickens-have-come...

    The important detail is poor Joe Simon is the author. You're trying to waive that. And the case didn't go to trial, so there's no mention of it in Lexis Nexis.


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