Can I transfer the liability to the Client

[Paul Leung]

Paul Tauger,

I totally understand that it is illegal to add copyrighted music/songs in wedding video. The law is very clear. Have been thinking a lot on how to avoid being sued. May I transfer the risk to the client by stating that the client is responsible for obtaining all necessary copyrights and I am only responsible for taking the video and doing the editing?

I am sure there must be a way to stay clean.... anyway, it is the client who wants the copyrighted music and a wonderful wedding video... not me!

[K. Forman]

You mean you DON'T want to be sued? Chances are slim that you would be caught. However, for your own peace of mind, just tell the couple "No". If they really want the music, go to ASCAP or BMI, and get the cost of the music they want. Tell them it is either that, or canned music, but you won't steal for the price you gave them.

Just my two cents...

[Peter Wiley]

Getaway Driver to Special Agent: "Well yes, now that you mention it, officer, perhaps it was odd that these armed gentlemen asked me to take them to the first national bank. But you have to undserstand the robbery was all their idea. I just drove the car."

[Peter Moore]

Um, Paul, no lawyer is going to advise you on how to commit wilful copyright infringement and get indemnity for doing so.

However, if the client is really obtaining permissions, there are ways to protect yourself with indemnity agreements. Whether they'd do you much good is a case by case question. You'd need to consult a lawyer (and not on a message board).

[Paul Tauger]

May I transfer the risk to the client by stating that the client is responsible for obtaining all necessary copyrights and I am only responsible for taking the video and doing the editing?

Nope. Copyright infringement liability is strict liability, meaning, if you've done it, intentionally or not, you're liable. You can ask the client to indemnify you, but that only means that, if you're sued for infringement, you can sue the client for your damages and expenses.

Um, Paul, no lawyer is going to advise you on how to commit wilful copyright infringement and get indemnity for doing so.

He's not asking how to commit infringement. He's asking how to avoid liability, which is a perfectly acceptable question. The only problem is, the answer is, "you can't."

You'd need to consult a lawyer (and not on a message board).

I am a lawyer. Though I don't give specific legal advice to posters here, since none of them are my clients, this is a general enough question (with a simple and straight-forward enough answer) that I can respond.

[Paul Leung]

Paul,

Thanks for correcting my understanding of liability. So, I have obligation to ensure the material sent to me is legal, right?

Just want to better understand the concept:
- For contractor-client relationship and the music is provided by the client, in order to protect myself, does it mean that I shall not use the music before I am provided proof showing the right of usage is properly granted by the copyright holders?

- For employer-employee relationship and the music is provided by the employer, obtaining proof from the employer would be difficult. If I am an employee, anything I can do to protect myself if the music may not have been paid for? The publishers normally sue the employer, not the employee, right?


Thanks!

[Dan Brown]

"If they really want the music, go to ASCAP or BMI, and get the cost of the music they want."

Amen.

Just buy the rights from ASCAP and pass the cosst back to the client. It's not really that expensive.

[George Ellis]

Last time I checked, ASCAP and BMI would only sell performance rights. The did not do sync or mechanical. Since Harry Fox got out of the business of sync, there is basically none of the rights licensing groups that support video sync and distribution. You have to go directly to the publisher and artist.

It is almost too hard to do the right thing. I gave up and bought SonicFire Pro.

[Peter Moore]

I don't know, it sounds pretty clear cut what he's saying:
"I know I'm committing infringement and I want someone else to take responsibility for it." As most of the other people who replied suspected, it sounds fishy to me. Just my jaded and pessimistic opinion, I guess.

[Paul Leung]

<<<-- Originally posted by Peter Moore : ... "I know I'm committing infringement and I want someone else to take responsibility for it." As most of the other people who replied suspected, it sounds fishy to me...>>>

Peter,

What would you do if your client give you the music and tell you that he/she has paid/will pay the proper fee to the publisher? Certainly, you may choose not to accept the job.

I wouldn't know if my client lies to me or not. Basically, I would like to get the job and I need to protect myself if my client lies. Of course, if there is no way to avoid the liability I would be left with no choice but to insist the copyright fee be paid via me or I won't get the job.

Sorry that my messages sound fishy. May be it is my English. In fact, I have not done a single wedding video before and have not used any copyrighted music in my video. I am preparing to enter the wedding videography market and want to figure out all the legal/business stuff before I enter. This is a good forum and this "Taking care of business" section is very helpful to new comers like me!

<<<-- Originally posted by Peter Wiley : Getaway Driver to Special Agent: "Well yes, now that you mention it, officer, perhaps it was odd that these armed gentlemen asked me to take them to the first national bank. But you have to undserstand the robbery was all their idea. I just drove the car." -->>>

Peter Wiley,
In this world, many innocent taxi drivers have helped robbed banks without knowing it until it's too late. I don't know how similar videography is to taxi driving. However, I do know that, like the taxi drivers, videographers need to earn a living and many of them cannot spare the effect to check out their clients and the materials they were given. Taxi drivers may have an iron stick hiding somewhere as a defence weapon. What defence does a wedding videographer have?

[K. Forman]

It is common sense that will usually save you in the end. If you know that there is no license to use the music, don't use it. Ignorance never works as a defense. You are getting paid to put together the video, so it is up to you to make sure everything is legit. It is up to the client to decide whether they are willing to pay the extra fee.

On the other side of the coin, getting caught using unlicensed music on a wedding video isn't likely. It is pride and professionalism that keeps most from stealing from a fellow artist.

[Peter Moore]

Ok, well I'm sorry if I misunderstood but it sounded like you KNEW the client was giving you copyrighted material that they probably didn't have permission for. If you're talking about thinking the client might lie to you about permission...

"What would you do if your client give you the music and tell you that he/she has paid/will pay the proper fee to the publisher? Certainly, you may choose not to accept the job."

You should insist on proof. As Paul T said indemnity only allows you to force the client to cover your liability - and if he goes bankrupt you're SOL. Whether this helps you depends on how big the client is. In fact, if you really want to be safe, obtain the permisisons yourself. It's your ass.

Again, my advice is to consult a live lawyer and establish an attorney-client relationship. He'll be able to hear all the facts of your situation, give you formal opinions, and draft up whatever agreements you might need. This is not an area to fool around in - wilfull infringement can carry very severe penalties.

Of course this depends on how valuable the job is. If it's only a couple thousand bucks, it's not worth paying a lawyer for, and it's not worth the risk of liability. My advice is if it's not worth hiring a lawyer for, it's not worth the liability risk. In that case, go only with music you know you have rights to.

[Riley Florence]

ok so im confused. I own a CD, i went out and paid for it, have the real thing, not a copy, i can burn songs from it all i want for my own personal use, cant i? If so could i not also have it on a video tape for my own personal use? If i can have it on a burned cd, and a video tape, why cant i just add some wedding footage to it? i still bought the music, its still just for my personal use, is this still illegal? or does it become illegal when say my friends buy the tape and now its not just for my personal use?

[Paul Tauger]

Okay, guys, I'm at a seminar today so I don't have a lot of time to answer the new posts . . .

Re: Proof: Copyright infringement liability is strict liability, meaning that, even if you ask for and are provided with proof that rights have been obtained, you are STILL liable if what you do turns out to be infringing. The best way to be completely safe is to obtain a license yourself (and either learn enough about licenses to determine whether it's valid, or consult an attorney ). I'm _not_ suggesting that anyone do any of this. I'm just explaining the general principle of law that applies.

Re: Copying a CD you bought onto video. I've written on this subject many times, here. Please do a search on my name and you'll find more thorough explanations than I have time to do right now.

Re: Is it worth hiring a lawyer? There are two answers to this. Obviously, for the typical wedding videographer, it is not cost-efficient to consult an attorney on every job -- even a two-hour fee could wipe out any profit the videographer would make. It may make sense, however, to establish a general relationship with a lawyer, so the videographer can pick up the phone and simply ask. As a rule, I don't bill short phone calls (nor do most lawyers). Of course, it's still necessary to retain the lawyer in the first place (and, unfortunately, for my firm, it's not cost efficient to accept retainers that would be typical from a one- or two-man video operation). The ultimate question comes down to business risk -- if you are extremely risk averse, you won't use commercial CDs without a license. If you're willing to play the odds and assume it's a long-shot that you'll get found out and sued, then you will. I can't advise about what makes good business sense in terms of risk acceptance -- only the business owner can do that. All I can do is explain the applicable law and explain the kinds of decisions _my_ clients make when they determine whether or not to sue for infringement of their IP rights.

Re: BMI and ASCAP: They don't have the necessary agency from the composers to grant sync rights. However, the can do whatever their member/composers want them to do and, if they wanted to act as a clearing house for wedding video sync rights, they could. Unfortunately, I've spoke, informally, with BMI's counsel about exactly this issue and, at least as of last year, there was no interest on the part of BMI to get involved. This is something that the wedding videographer's trade group should take up -- either lobby Congress for a statutory exception, or try to persuade BMI and/or ASCAP (the most likely candidates for administering this) to handle licensing "small commercial use" sync rights.

Re: Other considerations: I've said, for some time, that my belief is that using music from a legally-acquired commercial CD on a wedding video should come within fair use doctrine and, arguably, within the AHRA. The problem is, no court has addressed this yet, and won't until these issues are raised in the context of a copyright infringement defense. Much will depend on the current climate vis-a-vis IP protection (not good, thanks to RIAA), which administration appointed the particular judge ruling on the case (and the appellate judges who decide the appeal, prior to which the decision isn't controlling), and what part of the country the underlying action is brought in (fair use and statutory construction will vary from circuit to circuit). If anyone here ever gets sued for this, please let me know and I'll try to persuade my firm to let me handle the defense on a pro bono basis (no promises, though -- this is not a guarantee that I will be able to represent you if you're sued).

[Peter Wiley]

Paul,

The key thing in my example is that the Taxi Driver could SEE the weapons and that should raise one's suspicions, or any reasonable person's suspicions. In such a circumsatnce most taxi drivers would drive away as fast as they could get away, I think. Most of the time, they just avoid stopping for people who look suspect.

So when the video professional has a client who brings him/her recorded music to include in a video it's just like seeing the weapon. A professional has to be suspicious because of the potential costs to his business, his reputation etc. As someone who might rely on copyright for income a video professional will have very weak defense if all he has to say is "it was the client's idea." A professional has to check -- that's part of being a professional, it seems to me, and it's just the kind of thing a plaintiff would argue.

The only thing to do, really, is to tell the client you won't use music without clearance and to tell them what royalties will cost and let them decide. If they don't want to pay, they really don't want the product.