Using music by documentary subject at DVinfo.net

Peter Richardson · February 20th, 2004, 01:22 PM

Ok, another question on my documentary. One of the subjects of my documentary is in a country western band and he has offered to us his band's music for inclusion in the film. This music is in the form of a CD that his band produced two years ago. He may also compose additional music for us. I have already obtained a release for this man, which you can read below. Is it necessary for me to obtain a different release for using something of this nature? What would that release look like? Lastly, would I need to obtain one for each member of the band? Thanks!

Peter

The release:

LETTER OF AGREEMENT

I, the undersigned, at the request of Peter Richardson, who is producing a film entitled ìPhilomath, ORî (a working title) do hereby, on behalf of myself, my heirs, executors, administrators and assigns, grant, deliver, assign and forever release to Peter Richardson, his successors, agents, licensees, joint ventures and assigns all of my right, title and interest in and to all photographs, motion pictures, negatives, prints, videotapes, magnetic and digital recordings, and other forms of technology not presently known, and any and all reproductions of the above, now or hereafter made of me by Peter Richardson, to exhibit, broadcast, publish, display, copyright, reproduce, televise, use, edit, license, dispose of, exploit or use in any way whatsoever.
I further release Peter Richardson, his agents, employees, successors, licensees, joint ventures and assigns from any and all claims for compensation, consideration, or damages for libel, slander, invasion of my right to privacy, violation of my right to publicity, or any other claim based on the use of this material.
I acknowledge that I have read this consent and release prior to signing it and that I understand its contents.

IN WITNESS WHEREOF, I hereunto affix my hand this _____ day of _______, 20__.

Countersigned (if Participant is a Minor):

____________________________ _______________________________
Parent or Guardian Signature Signature

_____________________________ _______________________________
Name (Please Print) Name (Please Print)

Paul Tauger · February 20th, 2004, 01:31 PM

As you're not my client, I cannot give you legal advice (my firm's malpractice carrier would have a cow). Accordingly, I'll only note the following:

1. The composer is not always the owner of the copyright in the composer's music.
2. There are at least two copyrights implicated by a recording, one in the underlying music, and the other in the recording itself.
3. Nothing in the release which you've posted goes to anything other than the project that you're producing -- it has nothing to do with rights in the music.

Please note that nothing I've written is intended as either approval or disapproval of your release form -- for that, you need to talk to your own attorney.

Peter Richardson · February 20th, 2004, 02:09 PM

Thanks Paul. Can you recommend a resource where I could get the proper releases to obtain permission to use this music in the film? Or would it be best to consult a lawyer (besides you)? Thanks!

Peter

Paul Tauger · February 20th, 2004, 04:10 PM

I don't know a good commercial source for this kind of thing. However, most law libraries have form books that contain licenses, contracts, etc. I know there are a couple of good entertainment industry form books. Perhaps you can call your local law school and ask the law librarian.

As for consulting a lawyer, it really comes down to how risk-tolerant you are. There are a couple of different (only slightly related) areas of law that are implicated here. Obviously, an attorney who practices in this area can give you a definitive answer. I'm reluctant to say, "You must see a lawyer," because it can wind up being a fairly significant expense. All that I can tell you is this: I'm in the process of setting up a small business selling travel videos that I shoot. Because they're mine, I've had the benefit of reviewing every single frame and sound in the video, and I've specifically taken the time to do that to make sure that I'm not treading on anyone else's rights (or, at least, not risking significant exposure by doing so). I haven't haphazardly thrown them out to the public without considering the various circumstances under which I might incur liability, and in one instance, I'm delaying release specifically to find a bullet-proof way of handling music issues (I'm either going to create my own midi files from classical sheet music in the public domain, pay for a product like SmartSounds or try to negotiate a license from a street musician in Italy whose CDs I purchased).

Only you know your budget, your potential exposure, and how much risk you're willing to take.

That's probably not too helpful, but it's the best that I can do.

Peter Richardson · February 20th, 2004, 04:26 PM

Thanks Paul, I will probably go the route of a law library on this issue as I think my potential exposure for a lawsuit is extremely low. I get a long well with the musician in question and don't imagine he would sue me (he is also the composer and recorded himself). But will of course have him sign some paperwork in any case. The issue of the phone messages concerns me a little more and I'll probably have to consult a lawyer at some point on this one. Exactly what kind of lawyer would I consult on such an issue?

Lastly, on a tangential note, when you are shooting your travel videos do you worry about releases for people who are identifiable in the frame? I had read that as long as you are in a public place there is no expectation of privacy and therefore you do not need to obtain a release (I think this was decided in a case brought against the producers of the Girls Gone Wild videos, who obviously won the case.) Anyway, being a lawyer, what do you do?

And in the vain of quid pro quo, check out this tripod for your video work:

http://www.miller.com.au/news.cfm?sectid=40&subsec=4011&ID=29

I have been using a very similar Miller, albeit about 20 years older, and it is wonderful. Thanks again and take care,

Peter

Paul Tauger · February 20th, 2004, 07:13 PM

Quote:

I get a long well with the musician in question and don't imagine he would sue me.

A lot of my clients first hire me when they say, "But I got along well with the plaintiff, and never imagined he'd sue me." ;) Seriously, the reason for all this CYA paperwork is not for when things go well, but for when things go badly -- that's when self-interest prevails and things turn ugly.

Quote:

Exactly what kind of lawyer would I consult on such an issue?

One who practices entertainment law and/or copyright law (primarily transactional -- there will be some overlap). If you call your local bar association they should be able to provide some referrals.

Quote:

And in the vain of quid pro quo, check out this tripod for your video work:

http://www.miller.com.au/news.cfm?se...sec=4011&ID=29

Oooh, nice! Do you know how much these things weigh, and how small they collapse?

Peter Moore · February 20th, 2004, 10:22 PM

I think DVInfo.net should hire (and pay malpractice insurance for) a full time lawyer. It sure would beat law firm life, IMHO (though maybe Paul would disagree :) )

Paul Tauger · February 20th, 2004, 10:28 PM

Quote:

I think DVInfo.net should hire (and pay malpractice insurance for) a full time lawyer. It sure would beat law firm life, IMHO (though maybe Paul would disagree :) )

I haven't talked to Chris about this because it's still an uphill battle, but I'm trying to find a way to get my firm to allow me to give advice here. If the firm agrees, I'll speak to Chris and see how he feels about it (it very well may be a dreadful idea).

Peter Richardson · February 21st, 2004, 11:44 AM

Paul--Thanks again for the advice Paul. Time for a trip to the Law Library. Regarding the tripods, all the systems are under 10lbs. The largest tripod has a collapsed length of 33in. All the systems have carbon fiber legs and switchable counterbalance, which is not common with a tripod this small and is a great feature. I think most of these retail in the $1200-1500 range. In my mind, the best solution for what you are doing and these will last FOREVER (keep in mind I am not an employee of Miller and cannot back up this claim.) But they do have 3 year warranties. Check out the articles on the Miller website about documentarians shooting around the world with these things...very cool.

Peter

February 20th, 2004, 01:22 PM	#1
Peter Richardson Major Player Join Date: Mar 2003 Location: Portland, Oregon Posts: 608	Using music by documentary subject Ok, another question on my documentary. One of the subjects of my documentary is in a country western band and he has offered to us his band's music for inclusion in the film. This music is in the form of a CD that his band produced two years ago. He may also compose additional music for us. I have already obtained a release for this man, which you can read below. Is it necessary for me to obtain a different release for using something of this nature? What would that release look like? Lastly, would I need to obtain one for each member of the band? Thanks! Peter The release: LETTER OF AGREEMENT I, the undersigned, at the request of Peter Richardson, who is producing a film entitled ìPhilomath, ORî (a working title) do hereby, on behalf of myself, my heirs, executors, administrators and assigns, grant, deliver, assign and forever release to Peter Richardson, his successors, agents, licensees, joint ventures and assigns all of my right, title and interest in and to all photographs, motion pictures, negatives, prints, videotapes, magnetic and digital recordings, and other forms of technology not presently known, and any and all reproductions of the above, now or hereafter made of me by Peter Richardson, to exhibit, broadcast, publish, display, copyright, reproduce, televise, use, edit, license, dispose of, exploit or use in any way whatsoever. I further release Peter Richardson, his agents, employees, successors, licensees, joint ventures and assigns from any and all claims for compensation, consideration, or damages for libel, slander, invasion of my right to privacy, violation of my right to publicity, or any other claim based on the use of this material. I acknowledge that I have read this consent and release prior to signing it and that I understand its contents. IN WITNESS WHEREOF, I hereunto affix my hand this _____ day of _______, 20__. Countersigned (if Participant is a Minor): ____________________________ _______________________________ Parent or Guardian Signature Signature _____________________________ _______________________________ Name (Please Print) Name (Please Print)

February 21st, 2004, 11:44 AM	#9
Peter Richardson Major Player Join Date: Mar 2003 Location: Portland, Oregon Posts: 608	Tripods Paul--Thanks again for the advice Paul. Time for a trip to the Law Library. Regarding the tripods, all the systems are under 10lbs. The largest tripod has a collapsed length of 33in. All the systems have carbon fiber legs and switchable counterbalance, which is not common with a tripod this small and is a great feature. I think most of these retail in the $1200-1500 range. In my mind, the best solution for what you are doing and these will last FOREVER (keep in mind I am not an employee of Miller and cannot back up this claim.) But they do have 3 year warranties. Check out the articles on the Miller website about documentarians shooting around the world with these things...very cool. Peter

February 20th, 2004, 01:31 PM	#2
Paul Tauger Wrangler Join Date: Sep 2002 Location: Los Angeles (recently from San Francisco) Posts: 954	As you're not my client, I cannot give you legal advice (my firm's malpractice carrier would have a cow). Accordingly, I'll only note the following: 1. The composer is not always the owner of the copyright in the composer's music. 2. There are at least two copyrights implicated by a recording, one in the underlying music, and the other in the recording itself. 3. Nothing in the release which you've posted goes to anything other than the project that you're producing -- it has nothing to do with rights in the music. Please note that nothing I've written is intended as either approval or disapproval of your release form -- for that, you need to talk to your own attorney.

February 20th, 2004, 02:09 PM	#3
Peter Richardson Major Player Join Date: Mar 2003 Location: Portland, Oregon Posts: 608	Thanks Paul. Can you recommend a resource where I could get the proper releases to obtain permission to use this music in the film? Or would it be best to consult a lawyer (besides you)? Thanks! Peter

February 20th, 2004, 04:10 PM	#4
Paul Tauger Wrangler Join Date: Sep 2002 Location: Los Angeles (recently from San Francisco) Posts: 954	I don't know a good commercial source for this kind of thing. However, most law libraries have form books that contain licenses, contracts, etc. I know there are a couple of good entertainment industry form books. Perhaps you can call your local law school and ask the law librarian. As for consulting a lawyer, it really comes down to how risk-tolerant you are. There are a couple of different (only slightly related) areas of law that are implicated here. Obviously, an attorney who practices in this area can give you a definitive answer. I'm reluctant to say, "You must see a lawyer," because it can wind up being a fairly significant expense. All that I can tell you is this: I'm in the process of setting up a small business selling travel videos that I shoot. Because they're mine, I've had the benefit of reviewing every single frame and sound in the video, and I've specifically taken the time to do that to make sure that I'm not treading on anyone else's rights (or, at least, not risking significant exposure by doing so). I haven't haphazardly thrown them out to the public without considering the various circumstances under which I might incur liability, and in one instance, I'm delaying release specifically to find a bullet-proof way of handling music issues (I'm either going to create my own midi files from classical sheet music in the public domain, pay for a product like SmartSounds or try to negotiate a license from a street musician in Italy whose CDs I purchased). Only you know your budget, your potential exposure, and how much risk you're willing to take. That's probably not too helpful, but it's the best that I can do.

February 20th, 2004, 04:26 PM	#5
Peter Richardson Major Player Join Date: Mar 2003 Location: Portland, Oregon Posts: 608	Thanks Paul, I will probably go the route of a law library on this issue as I think my potential exposure for a lawsuit is extremely low. I get a long well with the musician in question and don't imagine he would sue me (he is also the composer and recorded himself). But will of course have him sign some paperwork in any case. The issue of the phone messages concerns me a little more and I'll probably have to consult a lawyer at some point on this one. Exactly what kind of lawyer would I consult on such an issue? Lastly, on a tangential note, when you are shooting your travel videos do you worry about releases for people who are identifiable in the frame? I had read that as long as you are in a public place there is no expectation of privacy and therefore you do not need to obtain a release (I think this was decided in a case brought against the producers of the Girls Gone Wild videos, who obviously won the case.) Anyway, being a lawyer, what do you do? And in the vain of quid pro quo, check out this tripod for your video work: http://www.miller.com.au/news.cfm?sectid=40&subsec=4011&ID=29 I have been using a very similar Miller, albeit about 20 years older, and it is wonderful. Thanks again and take care, Peter

February 20th, 2004, 10:22 PM	#7
Peter Moore Trustee Join Date: Oct 2002 Location: Arlington VA Posts: 1,034	I think DVInfo.net should hire (and pay malpractice insurance for) a full time lawyer. It sure would beat law firm life, IMHO (though maybe Paul would disagree :) )