Street Legal: Legal Considerations for Videographers, Part 2

Last month, in Street Legal, Part 1, we told the story of a photographer who was sued and was able to protect himself with Errors and Omissions (E&O) insurance. We also discussed how to protect your copyright for your productions, and we explained the efforts of the emerging Zoom program for obtaining the rights to use popular music.

The information in this article, is provided as basic information and not legal advice. Laws vary from state to state, and you should consult an entertainment attorney to help craft your own contracts and release forms as well as provide legal counsel.

YouTube’s New Business Model for Copyrighted Music
YouTube recently enacted an innovative approach to handling synchronization rights to copyrighted music. Rather than remove videographers’ clips that contain unlicensed music (which are now a very common occurrence on YouTube and other user-generated content sites), the site is pairing advertising for the music labels with the video clips.

In Cape Town, South Africa, WEVA member and VideoUniversity.com regular Howard Neill received an email from YouTube, where he had posted several wedding video clips. The email refers to UMG (Universal Music Group) and states that YouTube’s policy is to “place advertisements on this video’s watch page.” If you want to track what ads appear with Neill’s videos, his YouTube account name is “CapeVideos.” Here’s what the email stated:

Dear YouTube Member: UMG has claimed some or all audio content in your video The Wedding of Sian & Stu. This claim was made as part of the YouTube Content Identification program. Your video is still live because UMG has authorized the use of this content on YouTube. As long as UMG has a claim on your video, they will receive public statistics about your video, such as number of views. Viewers may also see advertising on your video’s page. UMG claimed this content as a part of the YouTube Content Identification program. YouTube allows partners to review YouTube videos for content to which they own the rights. Partners may use our automated video/audio matching system to identify their content, or they may manually review videos.
Sincerely, The YouTube Content Identification Team

Here is a press release from UMG on YouTube’s press page:
“Universal is committed to finding innovative ways to distribute our artists’ works and today’s agreement with YouTube furthers that strategy by helping transform this new user-generated content culture into a mutually beneficial business opportunity,” said Doug Morris, Chairman and CEO, Universal Music Group, “We pride ourselves in empowering new business models that create new revenue streams for content creators. You Tube is providing a new and exciting opportunity for music lovers around the world to interact with our content, while at the same time recognizing the intrinsic value of the content that is so important to the user experience.”

Since we spoke to Neill about this situation we’ve seen various ads on the page, including one for wedding rings and, more recently, one for an ethanol gas-related nonprofit.

YouTube lets visitors easily report alleged copyright violators—maybe too easily. They have a link called “report profile image violation.” I clicked it out of curiosity, and rather than going to a page for detail, I got a response that said, “thank you for reporting this violation.” YouTube also has a similar link on some users’ pages titled “report background graphic.”

Employee or Contractor?
Employment laws vary from state to state, but the U.S. federal government tries to regulate how independent contractors are classified. They want their income tax whether your second camera operator is an employee or a contractor, and they know it’s harder to collect when a worker is classified as a contractor. They can ding you for up to 3 years of back taxes and interest if they decide that your “freelance” shooter or editor should be classified as an employee.

The following is a list of the factors the IRS takes into consideration, according to its website:

• Behavioral: Does the company control or have the right to control what the worker does and how the worker does his or her job?
• Financial: Are the business aspects of the worker’s job controlled by the payer? (These include things like how the worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.)
• Type of Relationship: Are there written contracts or employee-type benefits (e.g., pension plan, insurance, vacation pay, etc.)? Will the relationship continue, and is the work performed a key aspect of the business?

The IRS doesn’t make it easy to determine independent contractor status. Different factors come into play, such as if the contractors control how they will complete the video tasks and if the contractors have other clients in addition to you. It helps if they supply their own equipment, although a videographer can use your gear and still be classified as a contractor.

Contracts
Each production is different, and frequently, video producers modify some contract terms for specific projects, based on the advice of their attorneys. It is probably a good idea to meet with an entertainment lawyer or one who specializes in intellectual property to draft a basic contract and modify it for specific productions as you need to.

“Work-made-for-hire” is a contract clause that means that the video was made by a videographer as an employee of a company—or, if that videographer was a freelancer, that it was commissioned by the organization or party with whom he contracted. According to Section 101 of the U.S. Copyright Act, “[T]he parties expressly agree in a signed writing that the work is to be considered a work-made-for hire.”

Videographers who would like the option of selling their video clips to stock footage agencies or who want to use the footage in an educational or documentary program should think twice before signing a work-made-for-hire clause. All the footage, even outtakes, becomes the property of the client. If the videographer happens to capture a beautiful scene or a mishap that could be put on a “funniest videos” TV show, the work-for-hire clause could prevent him or her from doing so.

You can protect your rights when you, as the producer, subcontract to a freelance videographer by stating that the materials the freelancer provides you with are works-made-for-hire under copyright law. In Media Law for Producers, Philip H. Miller says, “[I]t is advisable to go further and specify that, in the event that the materials are ever deemed not to be works-made-for-hire, the agreement constitutes an assignment of all ownerships in the materials.”

Distribution Agreements
In the January 2008 issue, we wrote about producing and selling special interest videos (SIVs). Videographers who produce and successfully market SIVs reap residuals for many years after the production. You have a choice of self-distribution or contracting with a professional distributor. Some distributors want to have exclusive rights to market your video, while others are nonexclusive and act more as wholesalers.

Miller says that a distribution agreement, like most other contracts, consists of an offer, the financial consideration, and terms of acceptance. If it is an exclusive deal, you’ll want to make sure the contract limits the duration of the agreement so that rights will revert back to you, or, if the video is selling well through the distributor, a time to renegotiate the contract. You should include a clause that allows you to terminate the agreement if the distributor does not sell a minimum number of units within a specified time.

Miller recommends that you consider the distributor’s contract as a draft, and he adds that distributors expect “producers to negotiate some of the financial terms. He recommends that you have your lawyer review the terms of the contract and help you better understand the terms and legal jargon. One clause Miller suggests you avoid is an “option on next work” clause. This gives the distributor the right of first refusal for your next production. According to Miller, “distributors almost expect to have the contract returned with this clause crossed out. Do not disappoint them.”

Permits, Permissions, and Releases
A permit usually refers to a document that lets you film at a particular location. Some private business developments, such as shopping malls, require you to obtain a permit, sometimes at no charge. The facility will want you to sign a release of liability form and probably will want a certificate from your liability insurance company. If you want to film in a public park or on municipal property, you need to obtain a permit from the city clerk’s office, or if you are filming in a large city, the city’s film commission.

Many years ago my company shot a commercial for a sports car with a small crew in a road overlooking the ocean near San Francisco. We shot at a location we had learned had been used by ad agencies because of its windy roads framed by ocean landscapes. Just as we were wrapping for the day, a county patrol officer visited us and asked for our permit. We had none. The officer explained that the county relies on film permits for much of its revenue and that we could have obtained a permit quite easily.

The term “permissions” usually refers to persons appearing on camera providing their consent to be filmed. If you are shooting in a public place, you generally don’t need to obtain permissions from people walking in the background. Most states’ laws recognize that a person in public has no reasonable expectation of privacy. However, if you will be focusing on one or two people in your shot and they see themselves in your film or TV show, they may demand payment; they could also force you to edit them out. If you plan on distributing your video or selling your finished show to a distributor, the distributor will ask for all the permissions of those appearing on camera.

When you are filming at a large gathering, such as a festival or sporting event where audience members probably will be in a shot, some states will accept you posting a sign visible to participants. The sign would state that filming is taking place and that by entering the area participants agree to be filmed. Laws in most states are not clear about filming guests at a private wedding. In many cases, even if your contract with your client states that the client has secured permission from guests to be in your video, it might not hold up in court. Generally, states protect an individual’s right of privacy, and the client signing your contract is not allowed to take away the privacy of one of his guests. Check with your attorney to be clear with this, especially if you plan to post video clips on your website or on a user-generated content site such as YouTube or Brightcove.

Releases are the model releases you should carry with you to obtain signatures of those you will be filming. If you are shooting a conference, the speakers should sign the releases. If you are hired by a company or another producer, that entity would probably be the one providing the releases, and the rights will go to that company or producer.

You can find sample contracts and release forms at VideoUniversity.com and at VideoBusinessAdvisor.com. Websites such as these help videographers learn more about the business side of video and stay out of trouble. Malpractice insurance and E&O insurance are there to help you feel secure and not become distracted when performing your video work. Learning about contracts, copyrights, and distribution agreements can help you to run your business more effectively and more profitably.

With some of the newer developments such as YouTube attaching ads to videos with copyrighted music and the Zoom music licensing program, videographers can pursue their creative ambitions without thinking of themselves as outlaws.

Suggested Resources
Focal Press/Elsevier (Media Law for Producers, Philip H. Miller) Independent Contractor Classification

The Video Business Advisor (video business forms, location permits, contract samples)

VideoUniversity (online forums, talent release forms)

YouTube Video With Universal Music Group Rights Claim Stu Sweetow (sweetow at avconsultants.com) runs Oakland, Calif.-based video production company Audio Visual Consultants. He taught video production at UC Berkeley Extension, was associate editor of Wedding and Event Videography, and was a contributing editor to Camcorder & Computer Video magazine.