I am not a crook!

[Dave Blackhurst]

Originally Posted by Steve House

Because the law can modify or void a contract if it deems a provision in it to be against other prevailing law. If case law defines the videographer to be the producer, you can't sign a contact that transfers that role to your client unless the real functions are transferred as well. You can't wait in the car while your buddy robs a bank and then beat a charge of driving the getaway car by producing a letter he signed that absolves you of responsibilty for what he is about to do. If the law says you are responsible, a contract that transfers that responsibility to another party would be found to be void on its face. Hand over the raw footage and walk away, he's responsible for what happens next. You create the final program, you are. But you can't do it and then say he's responsible when in actual fact he's not, even if he's agreed to the subterfuge.

The key is "against other prevailing law" - true, you cannot have a contract provision contrary to law, but the point here is that if the CLIENT can in theory produce their own video legally, then they should be able to hire someone to do it for them. SO, it doesn't violate the law. RICO/Mob type prosecutions are where you hire someone to do something that's illegal for you to do... you are BOTH liable.

You CAN fix your own electrical/plumbing, etc, but most would rather pay an "expert". You CAN make your own personal video project, but what you're paying for is someone with more expertise... not a perfect analogy, but...

What we are all examining carefully is if and how the small event videographer can avoid stumbling into being a criminal for doing something that's otherwise legal...

Do you have ANY case law where a contract provision that I see as perfectly legal, specifying that the client is the one assuming any liability for copyright clearances, has been voided on legal grounds?? Contract provisions, including those assigning or transferring liability (like insurance) in writing are typically upheld, it's the ones where "interpretation" is up in the air that the court can "imply" or assume. Thus, my suggestion to put it in writing rather than leave it open...

Case law sadly is usually where there's more grey than black and white, resulting in "contract disputes" or damages, so putting it in black and white can help you avoid becoming "case law" should something "go bad". Unless you have specific case law, you've got no precedent for your argument. Honestly I don't think there's any "case law" specific enough to make my suggestion invalid, but if you've got one, I'll gladly look it up! That or a case in which an individual was held liable for use of copyrighted music that they purchased and used for private use in their personal video?? Format shifting has been strongly upheld for quite some time as a right of a consumer/purchaser, though perhaps not in this specific context - the law is still playing catch up.


The "small event" client is simply hiring someone to do something they COULD do themselves, but just as a producer does, they pick the best talent they can afford to make all the technical decisions and give their best skills to the task - sure a big time producer is going to be more "hands on", but I'll bet that they choose talent they trust to give them the results with as little "direction" as possible. Not unlike the small client, the producer wants to bring the production in on time and on budget, not sweat f-stops or transitions - true there's more planning and creative interchange, but the budgets/audiences/products are in different leagues. The small event client also wants to bring in a personal production on time and on a set budget, and pays you to do it.

Your point about videographers "taking ownership" is a good one, and thus my suggestions that might help reduce liability. Take care which hats you put on, and you could at least have a pretty good defense rather than making yourself an "easy target". The best defense is a well written contract... and care in your words/representations.

Sure it's "glamourous" to be a "production house", but if it keeps me from potential liability, I'm content to be a videographer/editor <wink>!


It wouldn't hurt to learn enough about getting clearances from publishers for kid's plays and stuff either, and I think I'll have to look into that and see how it goes, as I expect to be video'ing a LOT of plays in the next decade or two with three small children entering school age! I wouldn't mind recouping my editing time somehow! It may be more trouble than it's worth though!


You also used the term "for retail sale" in an earlier post - I believe that's a HUGE stretch for most event vidoegraphy - you're not selling to just any Joe or Jane, you're delivering a limited, usually small number of copies of the final edited version of the event, only to people who otherwise COULD have videotaped the event themselves... BIG difference, and I think that's the gigantic 900 pound gorilla of a "loophole" we're noticing!

One other idea that just occurred is to explicitly transfer the copyright (and thus the ownership) of the final edit of the event to the client, except for retaining specific rights for demo/showreel/promo purposes.

[Steve House]

Originally Posted by Dave Blackhurst

...

You also used the term "for retail sale" in an earlier post - I believe that's a HUGE stretch for most event vidoegraphy - you're not selling to just any Joe or Jane, you're delivering a limited, usually small number of copies of the final edited version of the event, only to people who otherwise COULD have videotaped the event themselves... ....

If you are operating a business producing wedding and/or event videos for customers from the general public, it's a retail business selling goods and services just like Sears or Walmart or your neighborhood plumber or auto shop or LovelyBride Portrait Studios. I get the feeling you envision it to be the same thing as a parent taping their kids school play and one of the other parents offering to reimburse them at token amount for their trouble if they'll give them a copy of the tape. I don't think anyone would debate that a professional photography studio offering wedding and event coverage among its photographic services is a business operation selling their products and services in the retail marketplace - why do you think an event videographer is any different? We're not talking about Uncle Charlie taking vids of the family - whether it's a full time operation or just a weekend activity, we talking about someone who is ostensibly a media professional operating a business and servicing customers that are drawn from the general public. You don't need a brick-and-mortar storefront for it to be a retail business, just ask Amazon.

Maybe this perception you offer is why the wedding still photographers sometimes look down on videographers with disdain as not being the "real professionals." You're either just another guest with a really nice camera or you're a professional media production specialist and content producer - you can't have it both ways.

[Travis Cossel]

You guys both offer excellent points, and I think the funny thing is that neither of you are "correct". I think at the end of the day this is still a huge grey area.

I have to say once again that it doesn't make sense that an individual can do something and it's legal, but if he pays someone else to do it better then it's illegal. It just doesn't make sense, no matter how many times you make points about "retail" and "law" and "producing" and whatever else. In the end, that simple comparison is what all of this hangs on, and it just doesn't make sense.

Originally Posted by Steve House

Maybe this perception you offer is why the wedding still photographers sometimes look down on videographers with disdain as not being the "real professionals." You're either just another guest with a really nice camera or you're a professional media production specialist and content producer - you can't have it both ways.

Honestly I don't think this issue has ANYTHING to do with photographers' disdain of videographers. I think it has to do with the medium and the history of videography. Photography was perceived as art long before video was, and it wasn't until fairly recently that videography started reaching a level that most of us would consider art. I think THIS is why some photographers look down on videographers. I think some photographers view videographers as competition too. They think they should be the only one's capturing the day, and that video is just inept for that. I also think this trend is changing fairly rapidly.

[Steve House]

Originally Posted by Travis Cossel

...
I have to say once again that it doesn't make sense that an individual can do something and it's legal, but if he pays someone else to do it better then it's illegal. It just doesn't make sense, ....

It's not illegal for you to pay someone to shoot it for you but it may be illegal on his part to accept your offer. You keep jumping back and forth between the situation of the videographer and that of the client. What is legal for the client to request and accept and pay for if delivered is not necessarily legal for the videographer to provide. It's not illegal for the B&G to request their favourite pop song be used in the video and but it is illegal for the videographer to provide it without securing the proper license. There are a lot of things like that. You can replace your own leaky sink if you like perfectly legally. You can pay someone else to do it as well, without regard for whether or not they are a licensed plumbing contractor. But in most jurisdictions you can't hire yourself out to replace sinks unless you are licensed. You have no legal liability for hiring an unlicensed contractor but he has one if he accepts the job. Back to video - the client wouldn't be expected to know the law but as the professional who is in the business, you are. You would be reasonably expected to know all the rules and regulations governing your profession and would be the one who bears the ultimate responsibility to insure your business practices and the products you deliver are in compliance with them.

[Dave Blackhurst]

Steve -
There is a DIFFERENCE between a product and a SERVICE... it's a nuance to be sure, but it's there. A "product" you produce and put out there and hope it will sell to John Q. Public, a "service" you typically contract to offer your expertise and skill for a price. It may involve physical delivery of some sort, but it's the EXPERTISE you are really selling.

If I was a plumber and installed a copyrighted design high end foo-foo plumbing fixture, I pay for the fixture, I add a markup for my install, and the customer doesnt' pay a royalty every time he flushes...

I say this because at least some copyright arguments run just about that way - the customer must pay for every use, but the law doesn't swing that way...

If the client says "here's the song I want on my video", and signs off in the contract that he's responsible for any copyright ownership/clearance issues, I don't think you run a whole lot of risk, and I think if you make clear that the copyright for the finished work goes to the client, it is their "problem". You gave them a SERVICE, the "product" is theirs for their personal use/misuse and you have no control over that.

When talking photographers, they too are sometimes reading the digital writing on the wall, and offering the files to the client on disk, knowing that the client can just as easily make copies other ways...

Digital media changes everything (anyone see the "last typesetter"? Digital killed them off), and you (and the law) either adapt or become extinct.

[Travis Cossel]

Steve,

I don't think the plumber analogy works. In that case the plumber HIMSELF has to be licensed just to perform plumbing services. There is no similar license required for a videographer just to perform his services - which are shooting and editing.

You are attempting to extrapolate that the videographer is responsible for licensing music used in the video, but in reality, he is only being paid to shoot the material and edit the footage. The client is requesting that certain music be used, and if the contract that is signed specifies that the client will obtain all necessary rights, then the client is in full knowledge that he is responsible for obtaining those rights, not the videographer .. whose only responsibilities now are to shoot material and edit the video. I don't see how that doesn't legally transfer the responsibility to the client.

If you explain in the contract that any music provided by the client for use in the video will need specific licensing, and that the client is responsible for obtaining that licensing, then I'm sorry, but at that point the client IS responsible.

For me the bottom line still rests with the fact that it's not considered illegal for the client to edit his wedding to a song, but it's illegal for whoever he pays to do it. No matter how you justify this logic by the current law, in terms of common sense, it DOES NOT make sense.

[Steve House]

Travis, you are arguing what you feel the law OUGHT to be while I am trying to explain what I understand what the law actually is. You might feel that getting a letter of responsibility from your client should absolve you of blame in the event of a copyright dispute. I might even agree with you that would be a good way for it to work. But to the best of my understanding, it simply doesn't work that way and if you going to be in the business, you have to operate within the framework of what the law IS and not what you would like it to be. Your only get to vote about what the law should be when you vote for your elected representatives - otherwise, your and my personal opinions about how it ought to work simply don't matter. Tens of thousands of people have lost legal cases of all sorts while being totally convinced that they were in the right and that the law as it was applied to them didn't make any sense. Here the law clearly states that making an unlicensed copy for any purpose other than your own personal use is illegal, except under clearly stated and very limited circumstances. From my readings about copyright law I am led to believe that the reason you can make your own copy but not do it for someone else, whether you are paid or not, is that the courts have explicitly said you can't - if someone wants a copy they have to physicaly make it themselve for it to be legal. It says what it says, whether it makes sense or not, and as far as I know anyone who has tried to come up with a "creative" workaround has lost when it's been tested.

[Travis Cossel]

I guess I still disagree that your interpretation of the law is spot on. I think it's a pretty grey area and I think the decision on how to apply the law could go either way depending on the judge involved, especially with the aforementioned contract involved.

To this date, on this forum, I have yet to see someone actually quote (word-for-word) the actual law that applies here. What I've seen over and over again is people like you and me arguing about what we "think" the law is. The exact wording has never been presented, so it's actually pretty hard to have a real discussion about it. That's like arguing about what frame rates a particular camera can record in when no one actually has the camera specs or a camera in hand.

Even then, the actual wording of a law can often be interpreted and applied differently depending on who is actually performing the interpretation and application.

Case in point, a while back I was trying to figure out a section of my state's sales tax law, and after realizing I couldn't figure it out, I contacted my state auditor's office. I spoke with two different auditors on two different days and they gave me completely opposite answers ... and both were reading the exact same law. The funny thing is that if I had to go to court regarding this law, a judge might rule somewhere in between these two auditors. Some laws are pretty straight forward, like speeding, but many of our laws are flexible to interpretation.

In general it's best to just "play it safe" in my opinion, but at other times it's worth the risk that you might be wrong. In the world of wedding videographers there isn't much of a choice. You either take the risk or you go out of business.

[Vic Owen]

Regarding the last paragraph, it all really comes down on how much risk you're willing to take. I agree that it puts wedding videographers between a rock and a hard place. Take the risk or starve...!

I don't see much ambiguity here, though. You can legally produce and sell anything you for which you own the rights. All your video footage falls into that category, as well as anything you create in, say, Garage Band. If you use music recorded & copyrighted by someone else, you don't own it. Period.

It seems black & white, IMHO.

[Mark Ganglfinger]

Well, I did't think anyone was going to take this thread seriously, I was just really mad, and using this forum to blow off some steam.

Just for the record, I am not really confused about the law.
I know it is illegal to

1. tape a play, or recital or anything else that uses music (unless you wrote it)
2. use copywriten music in wedding videos
3. Breathe (ha ha ha)

I was simply griping about the lack of common sense in our legal system.
There has been several posts refering to taping a play as stealing (which is legally correct, I know) but I feel my constitutional right to the "persuit of happiness" has been completely trampled on by not being able to watch a video of my kids or thier friends sing a solo. Or offer my kids friends a tape to reward them for their hard work.

I am impressed at the level of discussion on this thread. The amount of thought put into these responses has been great and has been more civil than some discussions on this issue.

I feel better, having a little more insight on the topic, and am hopeful that eventually things may get better. Maybe someone on this network may by instrumental in changes in the system!

On the bright side, my business just got audited by the IRS (for 2006 which was my best year ever) and they ended up owing me $24. See! I really am NOT a crook!

Now, I just have to deal with the town I live in. They have requested a list of every peice of gear I own so they can have me pay property taxes on it every year (silly me to think that paying sales tax was good enough)

Mark G

[Chris Hurd]

Originally Posted by Frank Simpson

Getting back to the original events of this thread, plays and musicals are licensed for live performance only. No other rights are granted, and recording of rehearsals and performances are strictly and specifically forbidden. Intended use of a recording is not even an issue. Producers enter into this agreement every single day.

Bingo!

Frank Simpson's entire post is an excellent summation of the whole issue. His words there are golden.

Originally Posted by Mark Ganglfinger

Well, I did't think anyone was going to take this thread seriously, I was just really mad, and using this forum to blow off some steam.

Never a good idea. You need to understand that I didn't set this forum up for you to use that way. If you want to blow off some steam, go start a blog and do so (that's what blogs are for, after all). Our members took this thread seriously because this site has a very strong "no bullshit" reputation. My goal for this site is to have serious discussions, and come away from it with information you can actually carry into your day and put to use. And you can see from the level of of discussion so far that we've succeeded in doing that. You received a serious response because that's the type of people we draw into this site (and they are the *only* kind of people I'm interested in attracting to DV Info Net).

So yes, when you post here, you need to expect a serious answer (otherwise -- don't post).

I am impressed at the level of discussion on this thread. The amount of thought put into these responses has been great and has been more civil than some discussions on this issue.

It's all very much par for the course around here, standard operating procedure, and it's what makes this forum the single best one of its kind anywhere on the internet. Thanks for understanding,

[Travis Cossel]

Originally Posted by Mark Ganglfinger

Now, I just have to deal with the town I live in. They have requested a list of every peice of gear I own so they can have me pay property taxes on it every year (silly me to think that paying sales tax was good enough)

Property tax or "use" tax? I've never heard of paying property tax on equipment.

[Travis Cossel]

Originally Posted by Chris Hurd

It's all very much par for the course around here, standard operating procedure, and it's what makes this forum the single best one of its kind anywhere on the internet. Thanks for understanding,

No, thank YOU for creating a place just like this. Much appreciated.

[Travis Cossel]

Originally Posted by Vic Owen

I don't see much ambiguity here, though. You can legally produce and sell anything you for which you own the rights. All your video footage falls into that category, as well as anything you create in, say, Garage Band. If you use music recorded & copyrighted by someone else, you don't own it. Period.

It seems black & white, IMHO.

I guess the ambiguity lies in the idea that it's legal for someone to tape their own wedding and set it to music for use in their home, but it is illegal for someone else to do it for them. The process used and the end product and the usage for that product are exactly the same in both cases, so it doesn't seem to make sense that one is considered legal and the other is not. That's why it's not black and white.

[Vic Owen]

Heh.. I'm not very smart, so I try to keep things simple. <g> That's why I used the word "sell" in my stem. Whether I sell it, or buy it from someone, if it contains copyrighted music, then I'm making a choice to skirt the law. Seems pretty clear to me. (I try to not over-think this stuff...)

cheers