Exclusivity rights to music label company?
 

A new music label I'm working with have asked me to produce a document that assigns / transfers them rights to broadcast the music video I've produced for them. (In other words, transfer of copyright to them)

I've looked a lot online for this document, but I can't find it anywhere. I can see lots of film to music syncronization rights contracts, and film master use license agreements, but they are more for a film company wanting to use an artist's music in their film - This is obviously not the case here.

I already made an initial contract for them to begin with that touched on this. But now that their final 50% has been paid up on job completion, they want re-assignment of copyright transfer to them.

Any ideas?

Re: Exclusivity rights to music label company?
 

Do they want complete transfer of copyright or do they want a license for them to broadcast the video? They don't need to own the copyright in order to broadcast but they do need the permission of the copyright owners if they don't. Before drawing up your contract you need to be clear just what they're asking for and what you're selling to them.

Search Google for "assignment of copyright" but you would be best advised to have a lawyer involved as a form that would be valid, say, in the USA might not be valid in Spain, etc.

Re: Exclusivity rights to music label company?
 

Hi Steve,

Many thanks for your reply. It's a good question, and I'm not sure what they mean exactly.

I would assume, that since they commissioned me specifically to make them this music promo for their artist, they retain copyright and exclusivity over it?

I can't see me owning the copyright if they paid me to make it for them, surely?

Quote from the BBC Film Network Site,

"Music Videos/Promos:
In music videos the commissioner is the person who commissions a music video on behalf of the record label. This person may be an employee of the record label or a freelancer contracted by the record label. The commissioner will hold the copyright for the music video unless he or she is employed by the record label, in which case they will hold the rights. Once the video has been completed the video director usually waives all rights to it. This is indeed a big problem for directors and is one of their greatest grievances, especially with lower budget productions."

[...]

"Copyright: The standard position is that the copyright in the video will belong to the record company."


Source ref for more info: http://www.bbc.co.uk/filmnetwork/fil...ts#musicvideos

Re: Exclusivity rights to music label company?
 

You might think that but in North America you would be wrong.

You're quoting UK law (though I'm not sure what you quote is 100% accurate even there) and I know nothing about what the specifics of their law is. In the US and Canada, it would depend on whether you're a bona fide employee or an independent contractor, ie, freelancer. If you're an employee, subject to tax withholding, working under your employer's direct supervision, paid for your time and not for the product, etc, your employer does own the copyright. But if you're a contractor, that's not true. You are a vendor producing a custom product and selling it to your client. Under the law this side of the Pond, the creator of any copyrightable work automatically owns the copyright, even if he was paid by someone to produce it, UNLESS it was produced while he is acting as a regular employee acting within the scope of his normal employment duties. An independent videographer producing a program on contract for his client is not the client's employee, even though he is being paid fo his work, thus the "work for hire" provision where an employer owns the copyright does not apply unless the contract commissioning the work says in writing that it does, signed by all parties in advance of the commencement of any work on the project. And in any case, I see that you're in Spain, and Spanish law might be completely different from EITHER US, Canadian, or UK law. You must talk to a legal professional versed in both Spanish and EU law to have any information you can trust.

Re: Exclusivity rights to music label company?
 

Hi Steve,

Thanks for the excellent response.

Yes, I work from Spain, but my main residence and tax status is still UK. My contracts, etc. are all exercised under UK law and when I draw up a new contract with anyone, it's bound by UK laws and governances.

I get personally commissioned to make these clips, but I make them under my company name cited as 'Production Company' with myself listed as director of the clip. Pretty standard, I guess.

I don't mind handing over copyright to the music label; I don't see any harm in doing that. Of course, if I don't need to, I won't. The trouble is, as far as I understood it, directors give up any rights over music promos to the record label. Also, I'm keen not to aggravate the label by withholding copyright (if it is unnecessary to do so), as I'm interested to keep their business for now.

Re: Exclusivity rights to music label company?
 

"Above the line" creatives such as a director would usually be employed under a "work for hire" contract where the copyright on their work becomes the property of the production company hiring them. But an important aspect of that is the words "work for hire" must be explicitly in the contract for it to be valid.

The harm of handing over copyright comes in the eventuality of their re-purposing the footage. Let`s say it was originally shot as an internal piece but now they decide to use it in an international TV ad campaign, a use going far beyond what was originally anticipated in the original contract. You would normally have charged them a much higher fee had you known that was what they intended to do. If they own the copyright they can do with it what they please but if you retain it, you can say "that goes beyond the scope of our original license and requires an additional fee to cover the wider distribution."

Re: Exclusivity rights to music label company?
 

All good points, Steve. I mention "work for hire" in the original contract I made with them... But I didn't consider them re-purposing footage. I used the following contract below when drawing up the agreement with the record label.

Perhaps my mistake was to amend parts of the contract such that I re-assigned copyright over to the label (part 10). Maybe in future I state that the copyright is ours (Production Company) and that the label has only the right to use the material for the purpose set.

My legal brain is poor in this regard, however I suppose I could be forgiven as I did review copyright law pertaining to music videos and see that (at least in the UK), the norm is to hand copyright to the video over to the label.




MUSIC VIDEO PRODUCTION CONTRACT 2011

This AGREEMENT (hereinafter referred to as the "Agreement") is made effective this XX day of XX, 2011 by XXX (Director) and between XXX (Production Company), located in London, UK (hereinafter referred to as the "Producer") and
____________________________, located at ____________________________________________ (hereinafter referred to as the "Label").

WITNESSETH:
In consideration of the respective covenants contained herein, the parties hereto, intending to legally bound hereby, agree as follows:

1. Purpose of Agreement. The purpose of this document is to establish an agreement between the Producer and Label for the production of a music video program described as follows:
“XXX” (hereinafter referred to as the "Project").

2. Description of Project. The Project consists of two edits to be approximately 03:01 and 03:07, based upon two versions of the musical performance “XXX” performed by XXX. The purpose of the Project is for promotional use by the Label, as well as the sale and distribution of the Project on VHS tape, DVD, for broadcast, or any form of digital media known or unknown.

3. Production Budget. The Grand Total of the production budget for the Project approved by the Label is XXX Euro (hereinafter referred to as the "Grand Total"). This is a one-time compensation for the Producer's services (known as a "work-for-hire") and the Producer understands that this will comprise the Producer's complete payment. The Grand Total is payable according to the following schedule:

(a) 50% deposit upon execution of this Agreement;
(b) 50% upon delivery of the finished Project to the Label.

It is recognized that the production of music videos is a labour intensive industry and accordingly prompt payment for services rendered is of the essence. Title of ownership to the rights and proceeds of the Producer’s services shall not transfer until full payment is made.

4. Treatment / Script Approval. The Producer shall provide the Label, a written script in a format standard to the production industry prior to the start of production. Producer agrees to provide the Label with said script no later than XXX, 2011. Label shall have the right to approve said script for production or stipulate changes thereto in order to make said script suitable for approval for the Label. Script Approval shall be in writing with a signature block for the Label. Any changes made by the Label to the script or Project may alter the Grand Total as stipulated in Paragraph 3.

5. Cast and Crew. Producer shall, subsequent to script approval by Label, exercise sole discretion in the hiring and firing of cast, crew and other production staff. The Producer insures the highest possible standards of production for the specified budget.

6. Budget Approval. Label hereby approves the Grand Total as presented in Paragraph 3. Producer warrants that the production shall cost no more than the Grand Total without prior written consent of the Label. Label reserves the right to increase, not decrease said budget at any time after the execution of this Agreement.

7. Project Delivery. Producer acknowledges the Label’s delivery date for final master as being XX, XX 2011. Upon completion of services, Producer shall deliver to the Label, a master copy of the finished Project available for download in digital format. Producer will upload master copy to private, secure area accessible only by password. Password is privy only to Producer and Label. Producer hereby acknowledges that digital download for media is the only acceptable format for delivery, as well as a master source for subsequent duplication and distribution of the Project. If the Label requires additional format (eg. Betacam SP), Label acknowledges there will be an additional fee for this service.

8. Project Format. Producer acknowledges required final master is 25fps (frames per second) and either resolution of (1280 x 720) or (1920 x 1080) progressive scan is acceptable. Unless otherwise requested, video compression adopted will be standard H.264/MPEG-4.

9. Cancellation and Postponement. The Label acknowledges and agrees that Producer is blocking out specific time based upon a firm commitment from the Label. The parties agree that the following cancellation/ postponement policies are incorporated as part of this agreement.

A) If notice of cancellation/ postponement is received one to four business days prior to the commencement of the shoot, the Label will be liable to the Producer for:

1. All out of pocket costs
2. Full production fee on the job as bid

B) If notice of cancellation/ postponement is received more than four business days prior to the commencement of the shoot, the Label shall be liable to the Producer for:

1. All out pocket costs
2. Not less than 50% of the production fee as bid

10. Copyright Assignment. Producer does hereby acknowledge such employment, and that the terms of such employment, such performances and all rights appertaining thereto are entirely the property of the Label, its successors and assigns, absolutely and forever, for any and all copyright terms and all extension and renewal terms of copyright whether now known or hereafter created throughout the world, and for all uses and purposes whatsoever, and credit may be given for said performances to the Producer in whole or in part, or not at all at the sole discretion of Label.

11. Show Reel. Label agrees that the aforementioned Project may appear in Producer’s promotional reel(s) together with other works produced by the Producer as part of a non-commercial representative sample of the Producer’s work.

12. Governing Law. This Agreement is entered into in the City of London and Country of United Kingdom and is guided by and governed by the laws of that Country.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written.

AGREED TO AND ACCEPTED:
BY:

"PRODUCER"
XXX



BY:
"LABEL"

Company Name: ………………………………………………

Representative: ……………………………………………..
(an authorised signatory)

Re: Exclusivity rights to music label company?
 

I've been pressed to provide this, so I'm out of time. I've drawn up the following paragraphs as a rider agreement to the original. I think they were after ownership of the video.

After discussing this also with some colleagues, it would seem music videos, unlike other videos, work differently in that the label expect to own the music video produced.

Since I am not about to start arguing with them over this, I'm happy to hand over exclusive authorship to them in an effort to build a good relationship with them.

Here's what I sent over in case anyone else comes looking. Please note, I am NOT a lawyer and if you use the contracts I've posted here and in my previous post, you hold yourself completely responsible for them.

--
MUSIC VIDEO CONTRACT RIDER 2011 – Exclusive License

The following constitutes a rider to the attached contract and shall be deemed incorporated within the agreement. In the event of any conflict between the provisions of this rider and the agreement, the provisions of the rider shall prevail.

13. Full Payment Acknowledgement of “Work for Hire” Agreement. This is to acknowledge that full and complete payment for Project: (“XXX”) has been received from the Label and that articles pertaining to section 10 (“Copyright Assignment”) of the attached agreement are now in force for perpetuity.

13.1 Label now exclusively owns and controls all rights in and to the music video and thus is permitted to broadcast, telecast, simulcast, narrowcast or transmit the music video in perpetuity by means of any network or transmission system now including but not limited to any terrestrial, satellite or cable systems.

13.2 Label is permitted to upload, transmit and broadcast the music video online for perpetuity.

13.3 Label is permitted to grant sub-licenses to any third party in respect of rights granted in terms of this agreement, which will include rights to syndicate the channel in part or in whole to any broadcaster throughout the world.

13.4 To cause or permit any performance in public of the music video.

13.5 To authorise the editing, re-recording, mixing, remixing, dubbing, re-dubbing, or other adaptation of the music video at Label’s sole discretion, and nothing contained here-in shall be construed to obligate the Label to employ Producer in connection with this agreement.

13.6 Label shall not be required to pay any royalties which may be associated with the use of the sound recording and performance featured in the music video or with the broadcast or copying of the music video.

14. Indemnity. Label hereby indemnifies and holds Producer harmless against all claims and costs including, without limitation, legal fees, damages and expenses arising directly or indirectly from broadcast or adaptation of the music video.

IN WITNESS WHEREOF, the parties hereto have executed this amendment to the original Agreement this 7th day of June, 2011.


AGREED TO AND ACCEPTED:

BY: BY:

"PRODUCER" (XXX) “LABEL” (XXX)

Re: Exclusivity rights to music label company?
 

Your section 13.6 could be a problem. Unless you are the composer of the music or author of the lyrics you cannot waive payments of any royalty due on the music itself. You're recording carries one copyright but the music carries another. You can assign your copyright to the record label but that has no bearing on the copyright on the music itself that is owned by the composer and his publisher - the copyright on the music and the royalties due for its performance are completely separate from yours. Since you gave your client the right to use the music without paying royalty, a court MIGHT interpret that to mean you have assumed the burden of paying those performance royalties to the publisher out of your own pocket. This is why contracts such as this should NEVER by DIY - bite the bullet and have it at least reviewed in detail by an attorney specializing in intellectual property law.

Re: Exclusivity rights to music label company?
 

Hey Steve, Do you know where online I can find the producer keeps the copyright if they are hired by company X. I think I may have a situation coming up where that could be handy to know going into the meeting. Thanks.

Re: Exclusivity rights to music label company?
 

Note: I am not a lawyer. Start with a reading of our copyright act, which is available online. There's a whole section on ownership of copyright where it states that the creator of a copyrightable work owns the copyright except when it is a work-for-hire and when that applies, such as when it is created by an employee acting within the scope of his regular duties. As to whether you are acting as an employee when you have been hired by a client to produce a video for them, Revenue Canada defines when one becomes an "employee" and publish the criteria they use for "Employee or Contractor" online. It is a common misbelief that being paid to produce something is sufficeint to make it a work-for-hire. Note that your Company X client may wish to own the copyright to the program you produce for them and your tranferring it to them is certainly a legitimate point of negotiation for your contract, it's just that the fact that you're being paid does not in itself automatically make them the owner of the copyright. Unless it is a work-for-hire, you need to explicitly transfer copyright in writing if they are to own it. I don't see any reason NOT to do so in many cases, just make sure your fee adequately covers their potential uses of the product.