I am not a crook!

[Steve House]

Originally Posted by Dave Blackhurst

It's a very legitimate topic, as it affects any event/wedding videographer... "...
The private party who is determining "distribution and marketing" is hiring a camera operator and an editor, and IF there is any potential liability, it should lie with them - probably a need for a fair use exemption or a "reasonable fee" of some sort there as well... but if we're talking about a limited not for profit event...

....

If the clients were simply hiring a camera operator, you'd turn the raw footage over to them at the end of the shoot, receive your cheque and be on your way. But that's not what's happening - you're producing a finished program for them, a customized version to be sure but you're really in the same position as the creative producer of every program being broadcast. You, not the client, are responsible for the content. And you're doing it for a fee. The event may be non-profit but your personal involvement in the event is definitely for profit - unless it's your immediate family or circle of friends, you wouldn't be there if you weren't getting paid. So the wedding and event videographer is just like any other retail vendor. As a producer of an event video who assmbles a video program to sell to their client, the process and your role in it is really not much different from one who assembles an commercial to sell to an advertising client or a dramatic program to sell to a broadcaster. The music for the soundtrack is really a material component of the retail product you're selling - and what you are selling is, in part, a copy of the music. Taking it from your (or your client's) collection of CDs and syncing it to the video, is really not much different from selecting tracks off of your CDs and creating a music compilation disk which then you proceed to sell. In both cases you are using the music to create a product which you then sell to a retail customer.

I doubt there are any cases where someone has gotten in hot water because their personal videos contain unlicensed tracks. But video done for a retail client is a different animal - now what you do as a producer is different only in scale from what Sony Music or Jerry Bruckheimer does. The fact that your production is for your client's personal use doesn't mean that it's for YOUR personal use, you're still a producer and manufacturer of media content for retail sale.

[Mike Teutsch]

Steve,

I don't believe that anyone is arguing the law itself or if it is indeed illegal to use someone else's music in a wedding video, of course it is. But, how much would it hurt the wedding video industry if most quit doing it. They would go out of business, as someone else would do it for the client. You are an attorney, if my memory serves me correct, and you know what you are talking about with regard to the law.

What we are saying is that the current laws have become antiquated for this day and age, with the internet and digital downloads etc.. Just like we can still find a few cities that still have those, "5mph speed limit in town for Horseless Carriages." Are those laws being enforced?

Times have changed and the laws will eventually change too. Hang in there everybody.

Mike

[Steve House]

Originally Posted by Mike Teutsch

Steve,

... You are an attorney, if my memory serves me correct, and you know what you are talking about with regard to the law.

...

Nope, I am not an attorney nor do I play one on TV, let's correct that right now!!! <grin> Just voicing knowledge gained over my many, many years in the business world (since the time Jonah was a deckhand).

I think it would be great in the music industry were to adopt some sort of simple, low cost licensing scheme similar to what our friends in Australia have. Alas, they apparently don't see it as being in their interests to do so and until they change their minds there's not much we can do about it if we're uncomfortable being skofflaws. It's not an issue for me personally because I don't have any interest in operating a retail business and I don't envy those peers for whom its a choice of breaking the law or losing business.

[Mike Teutsch]

Originally Posted by Steve House

Nope, I am not an attorney nor do I play one on TV, let's correct that right now!!! <grin> Just voicing knowledge gained over my many, many years in the business world (since the time Jonah was a deckhand).

Gee, sorry for the demotion!!! :) I mean it, I really am!

Originally Posted by Steve House

I think it would be great in the music industry were to adopt some sort of simple, low cost licensing scheme similar to what our friends in Australia have. Alas, they apparently don't see it as being in their interests to do so and until they change their minds there's not much we can do about it if we're uncomfortable being skofflaws. It's not an issue for me personally because I don't have any interest in operating a retail business and I don't envy those peers for whom its a choice of breaking the law or losing business.

Exactly right on the simple system change. I actuality, I think that the artists would make much more money. Right now they get nothing most of the time.

We just bought the rights to Jack Lawrence's "If I Didn't Care," for use in our up coming feature film. We are not using it in the movie itself, just in a teaser that is making the rounds of some festivals. It is in fact to be shown at the G.I. Film Festival this weekend in Washington, DC.. We went through the long process and paid lawyers and reps and I bet in the end he actually sees very little of the $3,500.00 we paid. The system is very out of wack!

Hang in the scofflaws!!!!!! ;)

Mike

[Frank Simpson]

Getting back to the original events of this thread, plays and musicals are licensed for live performance only. No other rights are granted, and recording of rehearsals and performances are strictly and specifically forbidden. Intended use of a recording is not even an issue. Producers enter into this agreement every single day.

Theatrical performance is, by its very nature, ephemeral. And it is ephemeral by design. Artistic works invariably invite unfavorable comparison to some degree when converted to another medium ("The book was sooo much better than the movie...!"). Thus a recording of a play will never be able to accurately replicate the experience of live theatre.

In part, playwrights and their licensing agencies invoke the "no recording" clauses to protect undiscerning viewers (none of whom frequent these forums) from unfairly judging the quality of their work.

If uncle Joe sees a video of his nephew in a poorly taped production of a play, he is not likely to patronize any production of that play, judging it to be a poor play when it may have been merely a poorly recorded production. (Bad audio is the worst culprit here.) The longevity of the play's marketability may be reduced prematurely, reducing the royalties the playwright receives over time.

Unfair? Perhaps. Antiquated? Maybe. And whether uncle Joe frequents the theatre at all is of no consequence in the grand scheme of things.

I used to tour with a children's theatre company, and we performed all original works. Our company invited the use of cameras (no flash) and video cameras at our performances. We realized that many people would want a memento of the event, so our agreement with presenters allowed it. But when a presenter produces a play that is otherwise protected he is not at liberty to decide whether recording is allowable or not.

At the end of the day, our opinions of existing laws are meaningless. If we want to affect change, we should contact our congresspersons to see about changing the laws. But it is already tremendously difficult for the originating artists to protect their interests and receive proper credit/compensation. Whether we like it or not we are living in an increasingly selfish society that wants what it wants, and does not want to pay for it if they don't absolutely have to. We think the laws should be protect our specific way of thinking with little to no regard for their original intentions.

The laws regarding copyright are nebulous. Change will not come easily, nor will it be quick. It will likely mutate from time to time, and it may do so to the favor of videographers. But it may not. Nowhere in our constitution does it say that all laws must be likable!

[Travis Cossel]

Odd question time ...

I wonder if it would be considered illegal for someone to pay a video professional to tell them how to edit/shoot a personal project that involved copywrited music?

[Steve House]

Originally Posted by Frank Simpson

Getting back to the original events of this thread, plays and musicals are licensed for live performance only.

...

The laws regarding copyright are nebulous. Change will not come easily, nor will it be quick. It will likely mutate from time to time, and it may do so to the favor of videographers. But it may not. Nowhere in our constitution does it say that all laws must be likable!

Excellent review of the situation and I agree on all points!

[Steve House]

Originally Posted by Travis Cossel

Odd question time ...

I wonder if it would be considered illegal for someone to pay a video professional to tell them how to edit/shoot a personal project that involved copywrited music?

My opinion is that I doubt it. What the law prohibits is the act of copying - it doesn't make communicatiing knowledge of the process illegal (although some aspects of the DMCA come awfully damn close to doing that).

[Dave Blackhurst]

Mike -

If he even saw anything, I'd be surprised... your own statement clarifies where the money went - it's the "hangers on" that attach themselves to every sucessful artists' "gravy train". That's how many "artists" with huge "gross incomes" end up BROKE - all those layers of "friends and associates" often soak up all the $$$!

Frank -

EXCELLENT post, from "the other side" - and you make some good points! I think getting Uncle Joe interested in theater AT ALL might be in the interest of the copyright holder <wink>, and if it takes a video "starring" his nephew or whatever to do it, well, that SHOULD be a good thing. Point taken as to BAD video work though, there's a reason "community access" and amateur productions aren't usually worth the time to watch... and I can see where that "devalues" the original work to a degree. I know I wouldn't watch my kid's play unless he was in it <wink>! I'd be a lousy "customer", as I probably wouldn't buy the DVD either! But my wife would buy one to send to the grandparents, and she would appreciate that it was reasonably well done <wink>.



Steve -

Here's where I am thinking a bit differently - let's take the film industry analogy...

The PRODUCER is the guy who takes all the different bits, contracts them out and in the end expects a completed production... that's the client, but on a much larger scale. Does Spielberg, Bruckheimer, or Lucas "do it all", nope, but are they the ones who would be sued should someone on the "crew" make a mistake?? You betcha!

Camera op, editor, music co-ordinator, soundtrack composer, etc, etc are all working FOR the producer. They get paid for their expertise/services, but they ultimately answer to the PRODUCER.

I know that small productions often turn the whole ball of cheese over to "the video guy" either in or out of house, but they also initiate the project, typically set the general stage for the end product, probably specify their expectations (including music), work creatively with "the video guy", and ultimately have to "sign off" on the end product.

And it's the PRODUCER who usually has someone handle clearances, it's a whole separate area of expertise, and I doubt you'd ever have someone in "legal" behind a camera or an edit suite...

Semantics to be sure, and there are many "fine lines", but perhaps if one is careful to follow that model, and make 100% clear that it is the client who is the PRODUCER of the event/video thereof and responsible for any copyright/clearance issues, you'd at least have a strong legal argument that you were hired to shoot/edit, NOT to be a legal expert...

Again there is a grey area, since the video guy "may" know more about the copyright issues than the client and in theory could be held liable for "knowing" the client did not have proper clearances... but if it's in the contract that "client is responsible for procuring any required copyright clearances", that's a lot harder to sell for a slick attorney trying to find some "deep pockets" to dig into.

Remember one thing about the legal industry... generally they can't make any money prosecuting "small fry" cases. And lawyers have to eat TOO. MOST of them do that legally and ethically, it's the other ones that you have to be careful to not give any ammunition! Since I'm guessing that 99.9% of wedding "productions" use copyrighted music without getting clearances, and it would be pretty nasty to be seen prosecuting such "infringement", there's probably a relatively safe area if your contracts are set up right.

Like anything else in business, structure things properly and you at least reduce your exposure.


To steer this back to the original question of the thread... I think that the school or event co-ordinator or whatever is actually thinking much as I've stated above - they don't want the liability as the "producer" and so they choose to avoid the risk... and that starts to clarify it for me as to why they are skittish!! And unless you as "the video guy" want to take on all the clearances and legal stuff (thus YOU quite probably become the producer), that's probably where it gets left. Shoot the event as a private party for your personal use and leave it at that...

If you're "hired", make sure your contract specifies that the client, not you is the producer and responsible for any copyright clearances on any materials they provide, and they must provide those materials... unless you use your stock library or original compositions, which you can offer...


The line becomes - IF you are the producer, you are liable for the infringement, if you are "the videographer" and clearly specify that clearances are the responsibility of the client/producer, you should be relatively safe.

I know this may not "fit" the model of many videographers, and it doesn't "fit" with either the OP scenario or the one I put forward (as the videographer was contemplating initiating the "production", not the "client"), but it clarifies the "legal issues" somewhat, even if it doesn't answer the question directly - why should a videotape of an event that anyone can shoot for themselves become "infringement" when a professional videographer records it? Because you're "profiting" per se, but isn't the video a "derivative work" that every parent in the room COULD create for themselves??

THAT is where the copyright law is antiquated - technology has jumped to the point where ANYONE can be a content producer. Then there are "rights" to be sorted out!

I know these threads can be convoluted, but I sure did find this one HELPFUL! Now I've got some ways to approach future "productions" without fear of being a criminal!!

[Dave Blackhurst]

Originally Posted by Travis Cossel

Odd question time ...

I wonder if it would be considered illegal for someone to pay a video professional to tell them how to edit/shoot a personal project that involved copywrited music?

Not sure I understand the question... if you're being paid to "teach", video production techniques, I suppose you'd touch on copyright issues, but it would be pretty low on the list...

If it's truly a personal "not for profit" project and they provide the copyrighted music/material I'd argue for "fair use". Technically they are simply playing back music they have the rights to in another "format" - this is the digital age challenge - a "recording" can be on 8 track, cassette, vinyl, 1/4" tape, a computer hard drive, an MP3 player, a flash memory stick, a CD, a DVD, etc. etc. Digital allows for a Pandora's box of "reproduction"!

Traditionally I think adding music to video is defined as "sync rights", and as that visual addition can add to or subtract from the original work, there's certainly an interest in the original creator protecting their "baby". I don't think too many artists want their catchy ditty attached to a porn video...

But if someone "purchases" in one format and then syncs to video so as to play back that SAME CONTENT in a different format to add to their personal enjoyment (even if it sucks), I THINK that qualifies as a reasonable use of their licensed/purchased material - now as soon as you distribute it publically(like over YouToob) or sell it... a whole different legal question <wink>!

[Travis Cossel]

Originally Posted by Dave Blackhurst

Not sure I understand the question... if you're being paid to "teach", video production techniques, I suppose you'd touch on copyright issues, but it would be pretty low on the list...

I'm kind of playing devil's advocate. In other words it's not illegal for someone to take a camera and videotape their own wedding, edit it to copywrited music, and watch it in their own home. It IS illegal for anyone they hire to do the same thing, though, right? Well, what if they hired someone to stand next to them and tell them exactly what to do during the filming and editing process?

I know it an unrealistic example, but it gets at the heart of the matter, that the law here is just ridiculous and unrealistic.

I like the idea that the contract should make the client the producer, and thus transfer all responsibility for securing rights to them - not that it would stand up in court, but it could help the situation.

[Steve House]

Originally Posted by Dave Blackhurst

...

To steer this back to the original question of the thread... I think that the school or event co-ordinator or whatever is actually thinking much as I've stated above - they don't want the liability as the "producer" and so they choose to avoid the risk... and that starts to clarify it for me as to why they are skittish!! And unless you as "the video guy" want to take on all the clearances and legal stuff (thus YOU quite probably become the producer), that's probably where it gets left. Shoot the event as a private party for your personal use and leave it at that...

If you're "hired", make sure your contract specifies that the client, not you is the producer and responsible for any copyright clearances on any materials they provide, and they must provide those materials... unless you use your stock library or original compositions, which you can offer...


The line becomes - IF you are the producer, you are liable for the infringement, if you are "the videographer" and clearly specify that clearances are the responsibility of the client/producer, you should be relatively safe.

...!

I don't think that is going to work. There's more to being the "producer" than signing a piece of paper accepting legal responsibility. The producer also makes the final creative decisions. HE creates the camera shots - the camera operator is an employee who works the machine under his direction. HE creates the edit - the editor works the machine. True, both the camera op and the editor may have creative input but in point of fact they don't decide, they suggest. The producer may let the suggestion stand but he's the one who decides if it's in or out. The decision remains with the producer and it's the producer who creates the final product. Since the videographer is the one who has creative control over the final product, he's not just a hired hand working for a client/producer. (The second shooter if the primary hires one, on the other hand, would be.) How many of the sample clips posted through this forum have been had the subject line "look at this video my client created when he got married and tell me what you think of it?"

[Travis Cossel]

How does it not work if someone signs a contract and accepts that they are acting as the producer and will take care of any necessary licensing? If that is the wording in the contract, how does the responsibility still fall to the guy shooting and editing?

[Steve House]

Originally Posted by Travis Cossel

How does it not work if someone signs a contract and accepts that they are acting as the producer and will take care of any necessary licensing? If that is the wording in the contract, how does the responsibility still fall to the guy shooting and editing?

Because the law can modify or void a contract if it deems a provision in it to be against other prevailing law. If case law defines the videographer to be the producer, you can't sign a contact that transfers that role to your client unless the real functions are transferred as well. You can't wait in the car while your buddy robs a bank and then beat a charge of driving the getaway car by producing a letter he signed that absolves you of responsibilty for what he is about to do. If the law says you are responsible, a contract that transfers that responsibility to another party would be found to be void on its face. Hand over the raw footage and walk away, he's responsible for what happens next. You create the final program, you are. But you can't do it and then say he's responsible when in actual fact he's not, even if he's agreed to the subterfuge.

Essentially it boils down to the fact that you can't use a contract to re-write or get around a law you disagree with.

[Travis Cossel]

Interesting. I see your point.