Being Screwed By Local Public Access Channel...Please Help!

[Rick L. Allen]

Glenn, in your last reply I think you missed the main points so to reiterate;

1. Your "boss" at cable access is a dirtbag so chalk this up to a business lesson learned. Your school principle is probably no better but when money is involved some people will do just about anything.

2. Since you have been selling DVD's without a music rights or the permission of the participants you have also been breaking the law. If you pursue this you could also put yourself in real legal jeopardy.

Your best bet is to run away from this situation fast before you get lawyers involved. Hopefully you are a little wiser and will think through your next project more thoroughly.

[Tripp Woelfel]

Originally Posted by Glenn Fisher

Granted, I haven't had much experience, but it seems like the video industry has some of the kindest people around. I'm humbled to be a part of it!

Your idealism and enthusiasm are truly wonderful. Hang on to them as long as you can. But keep a wary eye out for those who don't share your views.

I was in broadcasting for nearly 10 years at the beginning of my career. Then I lived and worked in the LA area for 25 years and although I wasn't in the entertainment business then I had plenty of friends that were. The stories I've heard about people who were done dirt would fill a book. To be fair, there were plenty on the other side as well. My point is that while the folks here overwhelmingly fair, genial and supportive, they are not necessarily representative of the industry at large.

I think your future plans would be well served if you knew that there might be a snake in the grass somewhere. Underscore the phrase "might". You've already experienced this a bit in your current situation. There are good lessons to be learned here on a variety of fronts.

[Paul Tauger]

Originally Posted by Matthew Rogers

I understand fund raising being a tricky issue. The law is as: "(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;" If you were using it fund raise, then I could see an issue. If you used it like my dad and made a band demo video that he showed to middle school band students to interest them in band, then I believe that legally falls under fair use. There was no commercial usage/purpose, and it was done by education for education.

Matthew

I should set up a macro for this. ;)

Fair Use is an equitable doctrine that has been codified in the Copyright Act. The statute is merely a guideline and the four listed factors are neither dispositive nor exclusive. Because it is an equitable doctrine, a finding of Fair Use is committed to the discretion of the judge in the context of a copyright infringement action, i.e. it is a defense to infringement and can be raised only once a defendant has been sued. Fair Use is intensely fact-specific, meaning that each case may produce a different result based on a number of issues, including niche doctrines, judicial glosses and concepts of equity (in the legal, non-colloquial sense). Only someone who is familiar with the entire corpus of Fair Use decisional law is in a position to evaluate a specific fact pattern and determine whether it is likely to result in a finding of Fair Use, i.e. IP lawyers can do this with some accuracy; lay people can not.

I don't know enough of the facts to render a competent opinion but, based on what the OP wrote, the distribution of DVDs AND the broadcast on public-access cable does not sound like a candidate for Fair Use. Richard Alvarez has (as usual :) ) outlined the various copyright issues associated with this project. A couple of clarifications:

1. Minors can sign binding contracts. However, they may disaffirm, i.e. void, them when they reach the age of majority which is why most people will not contract with minors.

2. Absent a written agreement to the contrary, someone who provides their own equipment, videotapes without the direction of an employer, and is responsible for the final project is an independent contractor and owns the copyright in the video that is produced.

3. Written releases are necessary only when images of people are made in a context where the individual has an expectation of privacy. There is no exception for images of minors, unless some state has enacted a (probably-unconstitutional) law to that effect. Commercial appropriation of likeness laws would, nonetheless, pertain but are usually restricted to advertisements.

To the OP, as this sounds like a hobby that you are pursuing, rather than a defined school function, why not simply tell the principal and "Bob" that you're not an unpaid intern and have no interest in producing projects that provide no benefit to you or to your school? No one can force you to videotape school events and, from the sound of it, the school would be hard-pressed to find someone with your talent, technical skills and equipment. The legal term of art for this is, "take your ball and go home." :)

[Paul Tauger]

Originally Posted by Dave Blackhurst

Welcome to the wonderful world of IP (intellectual property) law. A good career choice if you're interested in law... 'cause it's a huge mess and virtually guaranteed income.

If only! :)

[Jason Robinson]

Originally Posted by Paul Tauger

I should set up a macro for this. ;)...

Glenn, in case you haven't read many other posts here on DVInfo, Paul IS an IP laywer, meaning his advice is well wroth the time reading and the cost of the 1's and 0's they were transmitted on. :-)

[Brian Boyko]

Here's what I would do.

1) Get a lawyer.

2) Have the lawyer tell the principal that he does not have the right to resell your copyrighted work. (Whether or not you have copyright problems with sync rights, THEY do not have the right to take your work and use it without your permission. The school has leeway to curtail many of your civil rights, but not your copyrights. Do NOT let your parents sign anything, no matter how the public access guy threatens.)

3) Stop participating in videotape for school functions. Only do video work outside of school. In fact, stop participating in anything in school that won't help you go to college. Always remember that high school is an artificial construct. Read "Why Nerds are Unpopular" - it's good advice for any high school student. Get through it any way you can and then go on to bigger and better things. Instead, go for out-of-school baseball games, birthday parties, confirmations, bar/bat mitzvahs, etc.

[Jay Gladwell]

It took 17 replies before anyone mentioned one of the most important aspects of this situation--equipment ownership! Who owns the camera equipment and post facilities that were used? The individual, the TV station or the school? The answer to that will have a major impact on the final outcome.

[Cole McDonald]

Do you (or your parents, technically) own the software you're editing on? Do you own the camera you're shooting with? Did you get a student discount on anything you use? Do any of those pieces of software/hardware preclude you from using them for commercial distribution due to their being student licenses (the reason I bring this up is that I paid 3x more for a license to final cut studio to be able to use it commercially as the educational license specifically declines commercial use). If you've purchased anything in your workflow under an educational license, you can possibly use that for your argument as well.

[Richard Alvarez]

Jay,

Ownership of the gear doesn't really have a bearing on copyright. The bank owns a lot of people's gear, but they don't own the copyrights.

Ditto borrowing gear, renting gear and so forth.

Nowhere in copyright law does it mention that the 'author' of a work is the one who owns the typewriter, computer, camera, microphone - etc.

You might be confusing being an 'employee' who is using company gear - therefore being a contract laborer - and therefore creating a work for hire - with being an independent contractor.

[Matthew Rogers]

Originally Posted by Paul Tauger

3. Written releases are necessary only when images of people are made in a context where the individual has an expectation of privacy. There is no exception for images of minors, unless some state has enacted a (probably-unconstitutional) law to that effect. Commercial appropriation of likeness laws would, nonetheless, pertain but are usually restricted to advertisements.

Then why do we need releases for people when they are out in public? Because if a person is out in public, then why would they expect privacy? Seems like when I step off my own property, then I would expect to have no privacy. Not trying to disagree with you, but seems odd. If likeness laws are normally restricted to advertising, then shouldn't I be able to use someone's likeness in a movie/tv show without their permission? Or is it more towards commercial things, and not just advertisements. I really wish the law was clearer (of course, politicians would hate that!)

Matthew

[Dave Blackhurst]

Originally Posted by Richard Alvarez

Jay,

Ownership of the gear doesn't really have a bearing on copyright. The bank owns a lot of people's gear, but they don't own the copyrights.

Ditto borrowing gear, renting gear and so forth.

Nowhere in copyright law does it mention that the 'author' of a work is the one who owns the typewriter, computer, camera, microphone - etc.

You might be confusing being an 'employee' who is using company gear - therefore being a contract laborer - and therefore creating a work for hire - with being an independent contractor.

Richard -
It has to do with use of school (meaning paid for with public money) for private gain. In this case it looked like Glenn had his own setup, which he rather generously was using to boost the schools image and programs, so I presumed it was moot.

BUT if he was shooting the schools cam and editing on their computer (and there is the issue of ACADEMIC software which is often highly restrictive in its license in regard to "for profit" use), he might well not be the "author" or owner. Institutions of learning I believe typically can claim the "product" created in "their" hallowed walls as "theirs", should the results of the research or development done on public funds turn profitable. It is a problematic issue, just remember to have the million dollar idea shortly AFTER you graduate...

[Jay Gladwell]

Originally Posted by Richard Alvarez

Ownership of the gear doesn't really have a bearing on copyright. The bank owns a lot of people's gear, but they don't own the copyrights.

Yes, it can! And you selected a bad analogy.

Depending on the agreement one has with a school and/or television station, they could own the copyright because they own the gear.

A perfect example (in another field) would be a researcher ro engineer.

EDIT:

Dave said it better. My apologies for not reading further before posting.

When I was in high school, I was the school photographer. I shoot everything. The school provided the camera. The school provided the film. The school provided the processing, etc. THEY owned the copyright to the photographs.

[Paul Tauger]

Originally Posted by Matthew Rogers

Then why do we need releases for people when they are out in public?

Technically, you don't. However, the concern are state laws like false-light defamation, invasion of privacy and commercial appropriation of likeness laws.

Because if a person is out in public, then why would they expect privacy?

They wouldn't. That's why you can videotape them.

Seems like when I step off my own property, then I would expect to have no privacy.

Not quite. You have an expectation of privacy in your doctor's office, a public restroom, a try-on room, etc.

Not trying to disagree with you, but seems odd. If likeness laws are normally restricted to advertising, then shouldn't I be able to use someone's likeness in a movie/tv show without their permission?

Yes, as long as that use doesn't constitute an invasion of privacy, show the person in a false light or wind up in a trailer advertising the project.

Or is it more towards commercial things, and not just advertisements. I really wish the law was clearer (of course, politicians would hate that!)

Unfortunately, it depends on the jurisdiction, as commercial appropriation laws vary from state to state. I once did a chart comparing the different laws in different states. I'll see if I can dig it up.

[Paul Tauger]

Originally Posted by Dave Blackhurst

Richard -
It has to do with use of school (meaning paid for with public money) for private gain. In this case it looked like Glenn had his own setup, which he rather generously was using to boost the schools image and programs, so I presumed it was moot.

BUT if he was shooting the schools cam and editing on their computer (and there is the issue of ACADEMIC software which is often highly restrictive in its license in regard to "for profit" use), he might well not be the "author" or owner. Institutions of learning I believe typically can claim the "product" created in "their" hallowed walls as "theirs", should the results of the research or development done on public funds turn profitable. It is a problematic issue, just remember to have the million dollar idea shortly AFTER you graduate...

Not quite. Absent an agreement to the contrary, as long as the OP isn't an employee, and as long as the OP hasn't signed anything providing that IP created by him belongs to the school, it really doesn't matter whether he uses school equipment or not. Of course, the school can decide they don't want him using it for outside commercial purposes. However, the copyright in the work will still reside with the OP.

With respect to academic software, it still would not effect the OP's copyright ownership. It would merely mean that he violated his license with the software publisher which might render him liable for copyright infringement. He would still own the copyright in the original expression that he produced.

[Dave Blackhurst]

I probably didn't express that entirely clearly... he would be the "author", obviously, and to that extent have "ownership", but the right to do anything "for profit" with that ownership might be limited.

In other words, it's his work product, but he probably can't make money from it without some issues IF he were profiting from school equipment purchased with public funds.

The real twist here is that all he really was doing was recouping costs for producing a few DVDs with his OWN equipment to the benefit of the school, not making the "big bucks", and the station manager wanted a "piece of the action" as a part of the deal to broadcast the content.

This is the slippery slope of "infringement", and IP law. Glenn probably wouldn't get in trouble doing what he was doing, and was appreciated for his efforts... then the SM wants to turn it into a profit making venture, and now the trouble begins... now you're debating rights instead of benefits.

Where is the $ figure or level of "infringement" that constitutes damage - is it the guy who makes a DVD for his kids dancing with some music they like on it and happens to make a copy for the neighbor whose kids were ALSO dancing? Or the guy in Singapore cranking out 10,000 knockoff discs? Unfortunately I suspect BOTH are "lawbreakers" in the current state of IP law. The first fellow is just doing something nice and thoughtful and reasonable but in theory deprives the owner of the music of "something"... IMO he should have some "fair use" exclusion. The second guy is intending to steal profits from the legitimate owner, defraud any buyer of their fake product, and make money lining his pockets at the expense of others... and should be hung from his toenails till eaten alive by gigantic red ants, preferably slowly.


Considering the OP's position - he's shooting and editing with his own gear as "extra credit". He owns the footage. As far as copying and distributing it, the potential copyright issues have been covered, but I'd classify the audio recorded as part of the performance and would argue for that being an "incidental" - he is recording the BAND "in the moment", not "a performance of <insert music title here>".

The line IMO becomes that it really doesn't matter per se WHAT the band is playing, the value is in the perfomance by the BAND, not in the specific piece performed. No one other than the band members and their family/friends (IOW a few "community" members) would have any interest in the end video product, regardless of what was being played. Other than one old Fleetwood Mac piece that rings a bell, the arrangement of a piece of music redered by a marching band or school orchestra is not at the top of my playlist... EVER. My ears are far too sensitive.

So let's say he owns the footage, and has a pretty decent affirmative defense to the allegation he's "infringing". He's got no obligation to allow the SM to "take" his work product without compensation and make money from it, and has a reasonable right to determine the use of his own work, which up until the intervention of the SM he was doing... If the SM continues, the best thing to do is "take the marbles and go home", go back to what he was doing to benefit the school/friends/community, and not worry about it.