Who owns photos, videos and audio of a musical performance?

February 7, 2012 2:44 PM

I pay the band to play, I shoot the video and photos and record the audio. But who actually owns the media?

I pay bands to play private events in my house. I am skilled as a photographer, videographer, sound engineer, etc and the bands know it (I've worked in radio, television, photography and music for a number of years). They know I record audio/video/photos of these events and some have specifically asked me to do so.

But this is where I get weird and why I've never made any serious money freelancing in any of these fields. Who owns all that stuff, really? I made the photos, the audio and the video, so I own it. But it's photos, video and audio OF THEM, so they own it. But I'm certainly not going to just hand it over to them for nothing, and it seems to me like it'd be wrong for either of us to sell any of it...

I hate negotiating this kind of stuff. Any suggestions, advice, insight?

posted by thrasher to work & money (7 answers total)

Do you have a contract? I think the answer would be in that document. Without that document, probably whoever is bigger.
posted by HuronBob at 2:46 PM on February 7, 2012 [1 favorite]

If you want to use your work for commercial purposes, you need to get these bands to sign releases that show they consent to your using their likeness.

Standard releases are available online, I'm sure. Everyone does this, down to the littlest newbie film school kid.

They do not own the photos, video, etc at all. Period. End of story.

It behooves you to let them use the media for promotional purposes, as a courtesy. If you are a big name photographer or the bands in question are huge acts with big representation, record deals, and the like, you may need to write up some kind of agreement about it (or confer with the label's legal dept), but if you're just a guy who likes to photograph the homegrown rock scene, then you're probably fine leaving it as a verbal thing.
posted by Sara C. at 2:51 PM on February 7, 2012

You have to negotiate. My friend does a similar thing with his house party performances but both he and the band agree upfront to release it under a creative commons license and he makes no money. He loves music and loves he get bands he like to perform in his living room for his friends. He sometimes pays the band but most of the time he'll just pass a hat for tips. As part of the deal, the band can use the music, video, and photos for their own promotion. My friend also goes to clubs around town and gets the permission of the band and the club to record and post it to archive.org. If you're heard the long version of the Gourds'* cover of "Gin and Juice" from Threadgills you've heard his work. In most cases he plugs right into the soundboard.

Whether you go the creative commons route or otherwise you have to have a release from the band to do anything with their performance. And they have to have your permission before they do anything with your work.

Depending on the band, they'll probably be pretty flexible because they'll see it more as promotion rather than the RIAA OMFG YOU'RE A PIRATE view.

*this cover is often misattributed to Phish.
posted by birdherder at 2:58 PM on February 7, 2012

Everyone is right, just talk to the bands and make a deal. As far as this:

But it's photos, video and audio OF THEM, so they own it.

Not exactly. People don't typically own photos taken of them in a public place where they are performing, not unless they make you sign a draconian contract, as some major artists are doing now.

What they do own is *their music.* There are two types of rights for music: the performance (that particular moment in time), and the publishing (the song as a written-down work). The performance rights might be debatable if it happens in your house, but they (or the original writer if it's a cover song) for sure own the publishing.

(This is why you can't just (legally) cover a song and sell it and keep the money. It's your performance, but the songwriter's publishing.)

I'm not a lawyer.
posted by drjimmy11 at 3:49 PM on February 7, 2012

IAAL. IANYL. TINLA.

It is very important to get some kind of agreement with the band in writing. Otherwise, generally speaking, the person who is willing to spend the most money on lawyers owns it, and if both sides are willing to spend similar, large amounts of money, then at least two lawyers will be delighted to play "Point / Counterpoint" for as long as it takes (and then some). Ultimately, it is likely that no one (apart from the lawyers) will be particularly happy with the outcome.

If you do this regularly, it's probably worth the small amount of money it would cost to have a lawyer draft a contract that works the way you would like it to, and explain it to you so you can explain it to your bands and even make tweaks on a case-by-case basis.
posted by spacewrench at 4:56 PM on February 7, 2012 [1 favorite]

IAAL.

You have the Power of the Pencil. When you write a standard form of contract for this kind of work, you make things specific and nail down who owns what. Depending on chance is too risky, especially if you want to make a living doing this kind of work.

There are non-obvious considerations, which is why you need a lawyer to draft the agreement. There are published contract forms for all sorts of agreements, including musical performance rights. Lawyers use them to make sure everything is covered, but choosing among the alternatives is what you pay a lawyer for.

Lawyers have to eat, too, you know, and, this time, you need profesional assistance. There are lots of good lawyers, who are skilled, thorough and professional and who make their living by doing a good job for people in your position.
posted by KRS at 5:29 PM on February 7, 2012

They own the rights to the music, if they wrote it.
They own the rights to their music performance.
Have them sign a release, if you wish to use the footage or audio in some way. If they want to use the footage or audio, they need to make a deal with you.

While they're performing as paid artists, they still retain the rights to their music. If they're doing covers of Bruce Springsteen--best of luck to you both.
posted by Ideefixe at 6:18 PM on February 7, 2012