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Copyright & Liabilty

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doug nottageCopyright & Liabilty
by on Jan 13, 2015 at 4:55:41 pm

If my client wants to use copyrighted material in a video production that they have not been able to secure permission for, am I liable?

My company is in the finishing stages of producing a DVD set of classes for a 10 week class that will be sold. In one of the sessions, the speaker reads a large portion of a children's book as an illustration. The video shows some over the shoulder shots of the book's illustrations as he reads it (but can edit those shots out if we needed to). My client has made attempts to secure permission to use the material in the course. At this point they have gotten no response. I understand that my client bears some liability if they proceed without permission. However, what liability do I hold as the production company?

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Todd TerryRe: Copyright & Liabilty
by on Jan 13, 2015 at 5:12:44 pm
Last Edited By Todd Terry on Jan 13, 2015 at 5:18:23 pm

I'll answer your question with a question... if a cop stops you for driving too fast can you tell him "It's ok officer, this is my friend's car and he gave me permission to speed and says send the ticket to him."?

No, no one can give you permission to break the law (if so, then "Hitman" would appear more frequently on job descriptions), and no one can give a production company "permission" to use copyrighted materials that they don't own the rights to, or tell you "It's ok, we'll take the blame." You still share in the liability.

Most of us most frequently see this with clients who want to use copyrighted music, and when we tell them we can't, they are kind enough to give us the go-ahead and say they will absorb any unlikely blame. Ummmmm.... no.

In your case it's not just the illustrations (which you say you can edit out), but the aloud reading of a "large portion" of a children's book. Do you have permission to use this text, read aloud, from either the author or publisher (likely both)?

Since you clearly say this is a product that will be sold that is verboten. Depending on the financial arrangement between you and your client regarding sales, that could weigh fairly significantly as to how much liability you share. In the end it might be none, and it be held that your client is the sole (or primary) culpable party. However, you would definitely get sucked into it to some degree.

Plus at this point you can't even plead ignorance ("I thought we had permission") because you clearly know, broadcast in a public forum, that you do not.

And.. what your client is doing is clearly wrong.


Todd Terry
Creative Director
Fantastic Plastic Entertainment, Inc.

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Richard HerdRe: Copyright & Liabilty
by on Jan 13, 2015 at 8:12:46 pm

The fancy word is "contributory infringement."

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doug nottageRe: Copyright & Liabilty
by on Jan 13, 2015 at 11:40:42 pm

Thanks, Todd. This is helpful.

To be clear: Nothing wrong is being done here. My client IS seeking permission. The project has NOT been published. I am simply planning for a worst-case scenario and what my responsibility is in that event.

Thanks again.

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Mads Nybo JørgensenRe: Copyright & Liabilty
by on Jan 14, 2015 at 11:05:21 am

Hey Doug,

As Todd says: You know that the materials included have not been cleared and therefor should instruct your client to clear it, or find an alternative.

Children's content and monetizing on it is very hot properties, and if a US law firm thinks that they can collect your house and all other assets on a no win-no fee, then they will - regardless of the chain project ownership, as you knew that the "goods" was not cleared.

One easy and cost effective test for you is to call an insurance company and ask for a quote for Legal indemnification for you against being sued by a third party due to your clients' decision(s)?
You will most likely get a no, or get a high quote for an insurance that will only cover you if the client signs your T&C's, including the insurance company's specific terms of business.

The easiest all round id to either obtain permission, or re-shoot that specific scene using cleared content.

Now, when all of that is said, depending on the age of the book; the copyright might have lapsed and it is free for all to use - but do check with a lawyer, as the story may be 150 years+ old, but the book could have been printed yesterday with new illustrations...

BTW: Well done for asking before publication, rather than after.

All the Best

@madsvid, London, UK
Check out my other hangouts:
Twitter: @madsvid

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