|By Stu Sweetow – Posted Sep 1, 2008 – September 2008 Issue
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For years, some videographers feared they would become fugitives from the law if they used popular music in their productions, hired a freelancer rather than an employee, or filmed wedding guests without their consent. Legal worries serve only to distract the otherwise creative videographer. This article will help clarify the often confusing mix of intellectual property laws with which videographers need to comply.
We have attempted to provide accurate information for videographers, but this two-part article (the second part will appear in the October issue) does not intend to provide legal advice. Each state has its own set of laws, and a contract that’s good in one state may not hold up in another. Sample contracts and permission forms are included in the sidebars, but we recommend that you show them to your attorney and together craft contracts, forms, and procedures that work for you.
We want to keep you out of trouble, and rather than lose sleep because you are having a legal entanglement, we want you to concentrate your attention on producing exciting and inspiring videos. Getting the legal stuff in order means you can devote your skills to what you do best. Let’s begin our look at the legal requirements of videography by looking at your legal rights, and how they can protect you.
When Your Intellectual Property Rights Get Ripped Off
Imagine you’re relaxing at home watching a TV show when you see a scene from one of your videos appear. You never granted that program the rights to broadcast your video—someone else is probably profiting from your creative work. And your work is not limited to the time you spent shooting and editing the video clip; it includes the investment you made in equipment, in managing your business, and in the time you took to learn your craft.
So, what do you do when you see your video shown without your permission? One videographer we spoke with sued the offender for copyright infringement and won an out-of-court settlement. We can’t name the videographer due to confidentiality, but we can tell you that the person on his videotape was Monica Lewinsky, the woman involved several years ago in a sex scandal with President Clinton.
The videographer had filmed Lewinsky as a child at a school graduation, and he sold tape copies to the parents of the graduating students. Several years later when the story broke, one of Lewinsky’s fellow graduates, then an adult, sold the tape to a news station. The news station resold it to other media, and in a short period of time, several news organizations were broadcasting the video without asking the videographer for his permission. The videographer had printed his company name and phone number on the tape label and in the opening credits. He smartly put a copyright notice at the end of the tape.
According to the videographer, “The first time I learned of the media’s use was when one of the students who appeared in the video with Monica called me to see if I had given the tape to the media. He didn’t have any trouble finding out who owned it because he read the label on the tape. It was after that when I saw it appear on television. The person who sold the tape did so after being contacted by the media (as were other students in Monica’s graduation class) who were trying to dig up anything they could find out about her.”
No one offered to pay the videographer for his creative work. It aired on several TV programs, and a still image from the video was also published in several widely circulated print publications. The videographer hired a lawyer who faxed cease-and-desist letters to the offending news organizations. The lawyer also asked the organizations to provide profit statements so they could settle the case out of court.
The case dragged on for 4 years, according to the videographer, but they settled shortly before the court date. One of the defendant organizations stated that it had used the video clip in a newsworthy manner consistent with the fair use doctrine. According to the videographer, some of the defendants settled without him, while others, not wanting to set a precedent, fought it more. That’s when he took legal action.
In the end, the videographer prevailed, but only after a long and arduous battle. Asked about the size of the settlement he said, “It was an okay settlement, nothing spectacular—certainly not enough to retire on.”
The videographer adds that there is a risk to suing someone over copyright infringement, because if you lose the case you may be liable for the other party’s attorney’s fees that they paid for their defense. A creator’s work is automatically copyrighted upon its publication. If you sue someone for infringement and you had registered your copyright with the U.S. Copyright Office you will be entitled to receive lost profits in addition to attorney fees and statutory damages. However, if you had not registered your copyright, the best you can expect is to recoup your lost profits. More on this later.
You may never film a student who later will be part of a sex scandal, but your wedding video could be aired on a reality TV show without your permission. A corporate training video that you thought would be used only by your client could be packaged as a DVD and sold internationally. A promotional video you made for a consultant could wind up on a nationally syndicated television network. You, as the originator of these creative works and the owner of the intellectual property, should not be left out of the revenue stream if other parties distribute your work. Just as music publishers vigorously defend copyright infringement, you as a video producer need to protect your rights too.
While including a copyright notice on your work is not required for copyright protection, it is a good idea to include it both on the label and with on-screen text. If you ever need to take anyone to court, as the Lewinsky videographer learned, the symbol inhibits the infringer from stating that he didn’t know your work was copyrighted.
You may also register your work with the U.S. Copyright Office. While registration is not required to protect your copyright, Philip H. Miller, author of Media Law for Producers, says that registering your video with the Copyright Office establishes a public record, should there ever be a dispute. According to Miller, “[I]f someone has violated your copyright, you need to register the work before you can bring a suit for copyright infringement before a court of law. Although it is possible to register the work after the infringement has occurred, this will limit you to suing for monetary losses that you can actually prove.” Prior registration also lets you to sue for attorney’s fees and statutory damages.
Section 107 of the U.S. Copyright Act defines the doctrine of fair use of copyrighted works. This doctrine allows use of copyrighted programs by news reporters, schools, researchers, and the use in a parody. According to the U.S. Copyright Office, “The distinction between ‘fair use’ and infringement may be unclear and not easily defined. The Copyright Office can neither determine if a certain use may be considered ‘fair’ nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney.”
Wedding Photographer Gets Sued by Guests
A photographer I work with received a letter from the brother of a groom whose wedding he had photographed. It was a demand for $8,000. The brother (who is an attorney) claimed that the photographer should pay a usage fee for each family member who appeared in photos posted on the photographer’s website as well as on the wedding coordinator’s website. He made this claim even though both the photographer and the coordinator had secured permission from the bride’s mother to use the images on their websites.
The fee that the brother specified was $1,000 per person, including the attorney, his wife, and his two daughters, multiplied by two websites. Depending on your state, contract law may not allow one person (the bride’s mother) to grant permission to use images of guests (the groom’s family).
The photographer had errors and omissions (E&O) insurance through a company that bundled that with equipment and business liability insurance. After a weekend of worrying, he contacted his insurance company and sent them a copy of the demand letter with all the relevant details. The insurance company handled it from there, and the photographer’s involvement in the case was done.
While lawsuits against videographers are rare, it’s a good idea to protect yourself with errors and omissions insurance. E&O is different from business liability insurance (which you also should have), and it is sometimes attached to a liability policy.
WEVA and 4EVER Group members for a while had a good deal on E&O insurance underwritten by Lloyds of London. Unfortunately, this year, Lloyds decided not to renew any videographers’ policies. We checked with Dale Wittick of Hilb Rogal & Hobbs, the liability insurance agent for The 4EVER Group, and Wittick said the firm does not offer E&O insurance. However, WEVA members will be able to purchase E&O insurance through Buell Insurance, the agents who have been offering liability insurance for WEVA members for more than 10 years.
Unfortunately, the premiums for E&O insurance have jumped to a minimum of $404. Dan Argenas, WEVA’s director of Association Communications, says, “Recently we have seen policies with premiums over $1,000 per year that offer less than what the new E&O insurance offers for WEVA members, but so far we have seen none for under $400 a year that provide what the new, improved E&O insurance provides.”
The Professional Photographers of America (PPA) offers malpractice coverage for its members. Membership is $323. This is not a complete E&O policy, but, according to PPA, it covers you if the client is unsatisfied for such reasons as you overbooked, you missed some images, or your hard drive crashed. It provides only $30,000 in coverage with a $200 deductible, while WEVA’s E&O policies, administered by Buell Insurance, provide $100,000 to $500,000 in coverage with no deductible. WEVA also states that its policy covers copyright infringement, while PPA says you will be able to speak with their attorney for help with this.
Music Sync Rights
Anecdotal evidence (and an online poll conducted by EventDV in 2006) suggests that most videographers in the U.S. currently would be willing to pay a reasonable royalty to be able to use popular music. DJs have a system with music publishers where they buy an annual license to play music at events. With videographers it is different, because videographers need to physically copy the music and synchronize it with their video.
The Australians created a way to allow event videographers and others to use copyrighted music, and they developed the Australian Mechanical Copyright Owners Society (AMCOS). For an annual fee of $561 US, Australian videographers may license any music represented by AMCOS, for an unlimited number of events, just so long as they don’t make more than 30 copies of any one event.
The videos “must be made for the private domestic viewing only of those appearing in the video,” according to AMCOS spokesperson Mostyn Rischmueller. This license does not cover corporate videos, promotional videos, or videos made for sale to the general public.
For years, WEVA and other groups have tried to find a way that videographers could legally obtain synchronization (sync) rights, which gives videographers legal permission to synchronize a copyrighted song with a video clip. In a manner similar to the Australians, WEVA arranged for its members to obtain sync rights to copyrighted music through a licensing program called Zoom, announced at WEVA Expo 2006. WEVA members pay $3.10 to $3.50 per song per production, with a minimum payment of 100 licenses for $350. The Zoom website also lets anyone purchase a single song license al a carte for $10. Non-WEVA member pricing for 100 licenses is $550.
Administered by San Francisco-based INgrooves.com, the music comes from major labels such as Universal Music Group (UMG), EMI Group, Ltd., and Warner/Chappell Music, Inc. The license allows for videographers to use the songs in videos of weddings, events, and photo montages. INgrooves administers the distribution of music through iTunes and other online channels. Last April, UMG became a major investor in INGrooves. Theoretically, this opens the vast UMG music library to event videographers.
This is a new program, and as of press time the INgrooves’ website did not have the licensing section populated. Also as of press time, the Zoom website lists the most requested songs all with the indication that they are not yet cleared. These include songs from such artists as Frank Sinatra, Etta James, and Shania Twain. According to WEVA’s Argenas, “This is an evolving program. As songs and artists are cleared, they will be made available to the Zoom program.”
However, the website lets you search by song and artist, and many popular songs are currently available for purchase. This is a major development because it is intended to provide videographers with a reasonable way of obtaining sync rights and could help videographers avoid skirting the law. YouTube is another organization that developed an innovative way of protecting music publishers’ copyrights while letting videographers post their videos with music. It involves pairing the publishers’ advertising with the videographers’ clips.
Next month we will discuss that YouTube policy, and we will further discuss copyrights. In addition we will attempt to explain the federal government’s guidelines for determining independent contractor status. We will also cover contracts, distribution agreements and talent releases.
What we’ve looked at so far in this article is, of course, only part of the story of the legal issues videographers need to consider as they run their businesses. In the second and concluding part of this article, which will appear next month, we’ll look at copyright issues (and their enforcement) associated with publishing videos on YouTube and other popular user-generated video sites; legal issues surrounding freelance, subcontractor, and work-for-hire agreements; talent/ model releases; and more.
Stu Sweetow (sweetow at avconsultants.com)Wedding and Event Videography, and was a contributing editor to Camcorder & Computer Video magazine. runs Oakland, CA-based video production company Audio Visual Consultants. He taught video production at UC Berkeley Extension, has won several awards for his videos.