Can client be held responsible for copyright infringement or is it always producer?

[FiddlerMD]

I was recently contacted to shoot a commercial and the client said something about using a scene from a movie. I told them it's illegal w/o rights, but they kept going on about how "it's old and it's foreign and all producers are dead and no one will look for us" .... i'm sure many of you have heard this before .. in any case.
I did not go into details since this was the initial call and it's nto like i actually have to use this footage. but i was wondering, if they insist on this footage, can i be legally held liable for using it as the producer of the video or would it be the client that's responsible for obtaining licenses? Can this be written into the contract?

 

[Huy Vu]

I would put a line into the contract that says "any copyright infringement resulting from this work(s) will be the responsibility of the client."

That way it's understood that you put said clip in the video with the understanding that the client has the right to that particular clip. If they don't then it's their ass on the line, not yours. Similar to how film festivals make you sign an agreement so that they can't be held liable for exhibiting copyrighted materials.

That's the "don't ask, don't tell" way of doing it because you already know they don't have the right to the clip. If you're against it and the client won't back off then I would suggest you don't take the job.

 

[Barry_Green]

It depends on how old the film is and whether it's passed into the public domain. If it's public domain you shouldn't have a problem.

 

[milksac]

I would put a line into the contract that says "any copyright infringement resulting from this work(s) will be the responsibility of the client."

In court this will hold about as much water as a paper bag. If there's a lawsuit you will need a lawyer to defend yourself. If you ultimately win because of the clause in the contract the legal fees you will have spent defending yourself will exceed the profits made from producing the commercial. If you lose, your company will need to file bankruptcy. Sounds like a fun game. Wanna play? If you're uncomfortable and you feel that your company is at risk then politely decline the work. At the very least do the research yourself to determine if the film is in the public domain.

 

[Noiz2]

In court this will hold about as much water as a paper bag. If there's a lawsuit you will need a lawyer to defend yourself. If you ultimately win because of the clause in the contract the legal fees you will have spent defending yourself will exceed the profits made from producing the commercial. If you lose, your company will need to file bankruptcy. Sounds like a fun game. Wanna play? If you're uncomfortable and you feel that your company is at risk then politely decline the work. At the very least do the research yourself to determine if the film is in the public domain.

I think that is a bit overstated. You should be able to put a clause in the contract that makes rights acquisition the responsibility of the client. And you should have a clause that makes them responsible for any legal costs arising out of litigation connected to those rights. You should probably have that in the contract anyway. You have no guarantee that they got rights from all of the locations/ people that are in the film either. In the US I don't think this should be a big deal to get in a contract in a way that would keep you as safe as your ever going to be. I mean I can sue you right now for some made up slight. You will have to go to court and defend your self or you loose by default. So yes you can get sued and if they get sued you probably will also be named. The contract should keep you from having to do too much to defend your self and should keep you on the winning side. It might also get you dropped from the suit. Talk to a lawyer about what you want to protect yourself from and have them make up the clause. You really should have this anyway.
In Canada the laws are a bit different and I would definitely talk to a lawyer about how to protect yourself.

As to the film. If it's in the PD it's clear. If it isn't and they think nobody will ever notice they are delusional. This is a commercial, it is going to be seen by a LOT of people. The odds of getting caught are WAY TOO high.