Music Video Copyright
March 28, 2014 8:55 AM
Question about copyright as it pertains to a music video, a videographer, a musician, and video streaming sites.
I'm a musician preparing to release an album of original music. Some months ago, a videographer offered to create a music video, free of charge, for one of my songs. I came up with a concept and the videographer shot and edited a video under my direction. I'm the only person featured in the video.
To make a long drama short, the videographer is about to submit the finished product to me, but my dealings with this person have shown me that they are unstable, and I'm trying to figure out how to best protect myself. My concern is that I will release the video on the internet, then at some point in the future the videographer will decide they don't want me to have it anymore and try to have it taken down. I want to be able to post it to various streaming sites, alter it in the future if need be, and use it at my discretion without fear of takedown. Can anyone clarify who holds the copyright in a situation like this, and more practically, what's the likelihood of a successful takedown from video sites?
According to this PDF, it doesn't seem to qualify as a work for hire since there was no explicit written agreement. I was thinking I could request that the videographer sign a transfer of copyright for the finished video, but I'm concerned they would refuse.
Key details again:
- I own the song in the video
- There was no explicit written agreement, but many emails discussing the project
- No compensation was paid for making the video
- Videographer shot and edited the video
- I wrote and directed the video
- My likeness is the only one in the video
I'm a musician preparing to release an album of original music. Some months ago, a videographer offered to create a music video, free of charge, for one of my songs. I came up with a concept and the videographer shot and edited a video under my direction. I'm the only person featured in the video.
To make a long drama short, the videographer is about to submit the finished product to me, but my dealings with this person have shown me that they are unstable, and I'm trying to figure out how to best protect myself. My concern is that I will release the video on the internet, then at some point in the future the videographer will decide they don't want me to have it anymore and try to have it taken down. I want to be able to post it to various streaming sites, alter it in the future if need be, and use it at my discretion without fear of takedown. Can anyone clarify who holds the copyright in a situation like this, and more practically, what's the likelihood of a successful takedown from video sites?
According to this PDF, it doesn't seem to qualify as a work for hire since there was no explicit written agreement. I was thinking I could request that the videographer sign a transfer of copyright for the finished video, but I'm concerned they would refuse.
Key details again:
- I own the song in the video
- There was no explicit written agreement, but many emails discussing the project
- No compensation was paid for making the video
- Videographer shot and edited the video
- I wrote and directed the video
- My likeness is the only one in the video
IANAL, this is not legal advice. Talking to a lawyer would be wise when dealing with copyright issues relating to your music business.
At this time, it is essentially a video owned by the videographer. This is a similar situation to commercial photographers - a client will purchase the use of a work, partial or full. As an example, a wedding photographer maintains copyright to pictures they've taken of the wedding, so you can't just take the digital files to Walmart and make prints for a dollar. Legally, you would need a buyout agreement with the photographer so you own the copyright of the actual images. The photographer at our wedding gave us a package price that included the session, X number of prints, and for an additional $250 a buyout of the copyright.
The statement above about signing a work for hire agreement would not automatically transfer copyright to you. If the videographer took it to court, they have a good chance of winning - the agreement was made after the fact, there was no payment as consideration. You would be misrepresenting the work for hire process.
For your security, you need to come up with an agreement with the videographer to transfer full copyright of the video to you. This will likely require payment of some kind. Once you've done that, you should file a copyright claim for a motion picture.
One option (along with obtaining copyright for yourself) is giving the videographer the ability to use this work for his or her own portfolio (which would be the most likely use). You could give this license limited or full in scope or length - Videographer can use the music video in a portfolio, physical or online, for a period of X years.
Copyright is a complicated legal issue. This document about copyright for the artist is helpful in lining out some of the particulars, and is a helpful read.
If you're concerned about the legal ramifications of copyright, you should talk to a lawyer. I know that seems like expensive overkill, but it is the only way to protect yourself. The videographer owns the copyright, and could certainly make your life difficult in the future (sounds like they may have already).
posted by shinynewnick at 10:41 AM on March 28, 2014
At this time, it is essentially a video owned by the videographer. This is a similar situation to commercial photographers - a client will purchase the use of a work, partial or full. As an example, a wedding photographer maintains copyright to pictures they've taken of the wedding, so you can't just take the digital files to Walmart and make prints for a dollar. Legally, you would need a buyout agreement with the photographer so you own the copyright of the actual images. The photographer at our wedding gave us a package price that included the session, X number of prints, and for an additional $250 a buyout of the copyright.
The statement above about signing a work for hire agreement would not automatically transfer copyright to you. If the videographer took it to court, they have a good chance of winning - the agreement was made after the fact, there was no payment as consideration. You would be misrepresenting the work for hire process.
For your security, you need to come up with an agreement with the videographer to transfer full copyright of the video to you. This will likely require payment of some kind. Once you've done that, you should file a copyright claim for a motion picture.
One option (along with obtaining copyright for yourself) is giving the videographer the ability to use this work for his or her own portfolio (which would be the most likely use). You could give this license limited or full in scope or length - Videographer can use the music video in a portfolio, physical or online, for a period of X years.
Copyright is a complicated legal issue. This document about copyright for the artist is helpful in lining out some of the particulars, and is a helpful read.
If you're concerned about the legal ramifications of copyright, you should talk to a lawyer. I know that seems like expensive overkill, but it is the only way to protect yourself. The videographer owns the copyright, and could certainly make your life difficult in the future (sounds like they may have already).
posted by shinynewnick at 10:41 AM on March 28, 2014
And to answer the second question, takedowns are generally very easy. For most sites, a takedown request is accepted at face value, and it requires a counter claim to put the video back online. Websites would rather err on the side of removing copyright infringement, and there is little penalty for following through that way. I agree with Jairus above - the videographer would likely succeed with a takedown claim for the video ownership, and you would likely succeed with a takedown claim for the music therein. Isn't copyright fun!
posted by shinynewnick at 10:45 AM on March 28, 2014
posted by shinynewnick at 10:45 AM on March 28, 2014
It might be a bit hinky to go back in time and have them back-date something as work-for-hire.
I'd instead offer to pay what you think is fair and have the director straight-out transfer the copyright of the video to you. There's many sample copyright transfer forms. This way you wouldn't need to worry about backdating or anything. If they don't agree to straight out transfer the copyright to you for $X (X can by zero if you all agree to it) then you know you need to contact a lawyer as you both will have issues going forward.
posted by nobeagle at 10:47 AM on March 28, 2014
I'd instead offer to pay what you think is fair and have the director straight-out transfer the copyright of the video to you. There's many sample copyright transfer forms. This way you wouldn't need to worry about backdating or anything. If they don't agree to straight out transfer the copyright to you for $X (X can by zero if you all agree to it) then you know you need to contact a lawyer as you both will have issues going forward.
posted by nobeagle at 10:47 AM on March 28, 2014
IAAL, IANYL, TINLA. Signing a "work for hire" document may not work in this case, and (generally) is not a cure-all for problems like this. There are specific categories of things that can be works for hire in the first place, and although the music video would probably fall into one of them, I'd worry that the WFH document, executed after the video was made, would not be effective to do what you want.
If you're able to get the videographer to sign a document at all, then you probably want him to sign a copyright assignment instead. That'll be less likely to turn into an expensive legal fight, if there's any fighting to be done.
It would be better to have an actual copyright lawyer draft the agreement you have the videographer sign. It doesn't have to be anything special, but there are certain magic words that, if they are in the agreement, it's likely to cost less to fight about it.
(I don't mean to insinuate that there will be an inevitable fight; it's just how I tend to view situations like this. Maybe/probably nothing will happen, but if it does, I don't want my clients to have to spend a lot of time/money arguing about stuff that could have been made clear in the first place. And copyright law is fraught with minutiae that people can fight over.)
posted by spacewrench at 10:48 AM on March 28, 2014
If you're able to get the videographer to sign a document at all, then you probably want him to sign a copyright assignment instead. That'll be less likely to turn into an expensive legal fight, if there's any fighting to be done.
It would be better to have an actual copyright lawyer draft the agreement you have the videographer sign. It doesn't have to be anything special, but there are certain magic words that, if they are in the agreement, it's likely to cost less to fight about it.
(I don't mean to insinuate that there will be an inevitable fight; it's just how I tend to view situations like this. Maybe/probably nothing will happen, but if it does, I don't want my clients to have to spend a lot of time/money arguing about stuff that could have been made clear in the first place. And copyright law is fraught with minutiae that people can fight over.)
posted by spacewrench at 10:48 AM on March 28, 2014
Above, they've addressed the legal issues pretty well, I'm in no position to expand on that.
I want to be able to post it to various streaming sites, alter it in the future if need be, and use it at my discretion without fear of takedown.
In my experience, what I've bolded here is the one thing that's most likely to trigger him into the behaviour you're afraid of. You said he approached you and offered to make the video for free. For him to turn around and decide you can't use this video anymore is him reneging on his word. (Yes, without a contract his word is tough to enforce, but bear with me.)
A lot of times people make implicit assumptions about what they are agreeing to, and problems arise because they made different assumptions. So I think the biggest value of a contract is not its enforceability but that it makes everyone be precise as to what it is they are agreeing to.
So it strikes me as very very likely that he has the implicit assumption that you've agreed to treat the video as an immutable whole and not as something you're going to make further changes to as you see fit. Imagine the scenario that you talked with a film-maker and agreed that he could use one of your songs in his movie, and then he added more cowbell.
posted by RobotHero at 11:11 AM on March 28, 2014
I want to be able to post it to various streaming sites, alter it in the future if need be, and use it at my discretion without fear of takedown.
In my experience, what I've bolded here is the one thing that's most likely to trigger him into the behaviour you're afraid of. You said he approached you and offered to make the video for free. For him to turn around and decide you can't use this video anymore is him reneging on his word. (Yes, without a contract his word is tough to enforce, but bear with me.)
A lot of times people make implicit assumptions about what they are agreeing to, and problems arise because they made different assumptions. So I think the biggest value of a contract is not its enforceability but that it makes everyone be precise as to what it is they are agreeing to.
So it strikes me as very very likely that he has the implicit assumption that you've agreed to treat the video as an immutable whole and not as something you're going to make further changes to as you see fit. Imagine the scenario that you talked with a film-maker and agreed that he could use one of your songs in his movie, and then he added more cowbell.
posted by RobotHero at 11:11 AM on March 28, 2014
Actually now you've got me thinking about a local incident where a filmmaker and an illustrator met and the filmmaker made a short film that was partly a biography of the illustrator's life, starring the illustrator and incorporating shots based on his illustrations. So guess what happens, the illustrator puts the film on a loop in a gallery, with a little placard saying "a film by illustrator." And now there's bad blood between him and the filmmaker, because they had different assumptions.
And I'm wondering whether this videographer has come across as unstable in part because they came into this with assumptions about what role they would play that did not easily fit in with your assumptions that you were there to write and direct the video and they were there to follow orders. Do you see what I'm saying?
So in addition to whatever contract you need to work out, if I'm on target here, you may also benefit from taking them out for beers (or whatever they drink) and bonding over your mutual desire to make good music videos instead of dwelling over how they were sabotaging your video with their unstableness.
posted by RobotHero at 12:14 PM on March 28, 2014
And I'm wondering whether this videographer has come across as unstable in part because they came into this with assumptions about what role they would play that did not easily fit in with your assumptions that you were there to write and direct the video and they were there to follow orders. Do you see what I'm saying?
So in addition to whatever contract you need to work out, if I'm on target here, you may also benefit from taking them out for beers (or whatever they drink) and bonding over your mutual desire to make good music videos instead of dwelling over how they were sabotaging your video with their unstableness.
posted by RobotHero at 12:14 PM on March 28, 2014
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Get them to sign a document saying their filming of the video was work for hire. Transferring of copyright is not always straightforward, if it's work-for-hire then they never had the copyright in the first place.
posted by Jairus at 9:15 AM on March 28, 2014