Music Video Dilemma

D

digitalskylight

Active member
My crew and I made a verbal agreement with a small, unsigned pop band and their representative back in September to shoot a music video. The agreement was that if we did the work pro-bono, not only would it give us experience and the band a music video, but we could also use it as a portfolio piece publicly.

We shot it, edited it, and it's been sitting on the shelf since because they haven't been good about getting back to us.

I recently got back in touch with them, and the band had just been trial-signed with a label. The representative (whom we made the original agreement with) said we are not allowed to put out the music video now because the label owns all rights to the song. If we were to release it, we would receive a C&D and possibly be sued.

Please tell me that this is wrong- my crew never signed an agreement with the label, nor did we receive any sort of compensation for our time. This music video has been sitting around for nine months, and we're all very irritated it hasn't gone anywhere.
 
Disclaimer-- I am not an attorney. You should talk to one. Specifically one that is not only familiar with Intellectual Property/Entertainment law and contracts, but a Music Business Lawyer. The following is not legal advice, nor is it being represented as such. However, you may try contacting VLA (Volunteer Lawyers for the Arts) if you cannot afford an attorney that may help you; they may be able to provide one either free-of-charge, or for a very low fee...

In any event, the way I understand it:

1) There is no such thing as a "trial deal." The band probably signed either a Demo Deal or a Letter of Intent. A demo deal gives the band money to record a master quality demo (basically some album tracks), and the label has first dibs on signing them. That is not likely in today's climate, so instead, they probably got locked into a "letter of intent/deal memo." Probably some kind of "360 deal" at that (lots of rights balled-up into one agreement). That means that the band is beholden to the label, but the label has no real onus to ever follow through or release anything; it just effectively takes the band off the market and locks-up them and their material indefinitely.

2) The label would own master recordings (audio and video) to the songs that they record (or pay to have recorded). The band (or a publishing company, or label-affiliated publishing company that they may have signed with) would own the actual rights to the songs themsleves (but they may have restrictions on release, depending on what was in the deal memo).

3) _Technically_, YOU own the master recording rights to the video you recorded, in liue of any other agreement with the band or other copyright owner(s), although there could be restrictions on it's "release" (even as a demo for you), if you didn't/don't have an agreement in place to such an effect (the "right of first publication" is a big deal when it comes to song material).

The problem is, even if you're right, do you have the time and unlimited resources to go up against a major label's staff of attorneys? This question may mitigate any strategy that you might employ, because we all know that "right' isn't always what comes out on-top...

Possible approaches:

1) Sit and wait. Let them make the first move (maybe after reminding the band, and letting their A&R man know that you have the video?)

2) Put it up on your site anyway, and wait for the C&D. You can then decide whether or not you want to fight it or comply, or offer to come up with a negotiated settlement. Even if the label somehow comes out "owning" the material, it probably would fall under "Fair Use" for you to display it simply as a demonstration of your own work. After all, you never signed any kind of "work for hire" agreement, did you? (Please say "no.")

3) Find out everything you can about the label and the deal the band signed. _Invoice the label_ for a fair price for your work. Include a small "demo" clause paragraph in the paperwork you send.

4) If you invoice the label, put payment terms in the paperwork. Meaning, if they are later than 30/60/90 days after receipt of invoice, there will be additional "late payment" charges (they will hate that, but it might light a fire in the finance office to get a check out to you).

5) Again, this should be number 1-A, but consult a lawyer. As an adjunct/alternative, get a consultation with Moses Avalon (go to mosesavalon.com, and follow the links). (PS-- I don't work for and am not affiliated with M.A. in any way, other than as a fan of his work to empower artists and creative people)

6) This could all change if a) the song was a cover, or the work of another artist, and not an original of the band's, b) if the label is a smaller indie/boutique company that can't afford the previously-mentioned army-of-lawyers, c) if you signed, or verbally agreed-to any kind of work-for-hire agreement, or d) a million other unforeseen particulars...

Lessons Hopefully Learned: ALWAYS sign an agreement stipulating the particulars of any contract. As mentioned by another poster, know your rights (as fully as possible), and have paperwork that reflects those rights and that knowledge. Talk about as many "what if's" as possible before embarking on any spec-work of this nature.

GJ
 
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Gregg Juke said:
3) _Technically_, YOU own the master recording rights to the video you recorded, in liue of any other agreement with the band or other copyright owner(s), although there could be restrictions on it's "release" (even as a demo for you), if you didn't/don't have an agreement in place to such an effect (the "right of first publication" is a big deal when it comes to song material).
--
2) Put it up on your site anyway, and wait for the C&D. You can then decide whether or not you want to fight it or comply, or offer to come up with a negotiated settlement. Even if the label somehow comes out "owning" the material, it probably would fall under "Fair Use" for you to display it simply as a demonstration of your own work. After all, you never signed any kind of "work for hire" agreement, did you? (Please say "no.")

3) Find out everything you can about the label and the deal the band signed. _Invoice the label_ for a fair price for your work. Include a small "demo" clause paragraph in the paperwork you send.

4) If you invoice the label, put payment terms in the paperwork. Meaning, if they are later than 30/60/90 days after receipt of invoice, there will be additional "late payment" charges (they will hate that, but it might light a fire in the finance office to get a check out to you).

Lessons Hopefully Learned: ALWAYS sign an agreement stipulating the particulars of any contract. As mentioned by another poster, know your rights (as fully as possible), and have paperwork that reflects those rights and that knowledge. Talk about as many "what if's" as possible before embarking on any spec-work of this nature.

GJ
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Greg,

Thank you for your advice- it was much more thorough than Craig's.

My issues are the following:

-My contact with the band refuses to give us direct contact with the label. I know who they are- should I go ahead and get in touch with them myself?

-We never signed a work-for-hire agreement. Therefore, can I still go about invoicing the label or even the group themselves?

-They said we can use the video without the music. What good does that do us?

Anyways, thanks again for your help. Lessons definitely learned.
 
Hi,

>>>>-My contact with the band refuses to give us direct contact with the label. I know who they are- should I go ahead and get in touch with them myself?

-We never signed a work-for-hire agreement. Therefore, can I still go about invoicing the label or even the group themselves?<<<<

I would go ahead and invoice them. (The label, that is. You know the band won't have any money)


>>>>-They said we can use the video without the music. What good does that do us?<<<<

That's very true, and why not?

First of all, it showcases your videography/cinematography just like any other demo reel would (from what I've seen, these often have a single-track music background, with no production/original-video audio; I've even seen music video director's reels made-up of scenes from various videos, but without the song soundtrack)... Go ahead, cut something up that you like, or display the whole thing with your own library instrumental track...

Secondly, I'd let the label and the band know that it's up (without their music). What an idiotic thing for a new band and a label trying to promote them to do-- leave a video up of themselves that doesn't even have their own music in it! It will be great promotion for you, and a debaucle for them. You can even put up a disclaimer ("We cannot present the original audio for this music video, due to a contractual dispute"). I'm not saying any of that vindictively; it would be the truth, and any smart record company person or promotional guru would want to nix something like that asap, which might provide a more even playing field for your future negotiations with same.

Get a professional attorney's opinion, but in my experience, these guys will try to scare you out of excercising your own rights.

GJ
 
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Ths issue isn't ownership of the master recording, it's whether the OP has a license for synchorinization rights from the owners of the song's words and melody. If the label acquired the rights to the music the band created and became the publisher of the music, it's their choice whether to grant a sync license or not. Absent a written contract granting such a license signed prior to the band's signing with the label there's likely nothing to be done.

Gregg Juke said:
...

2) Put it up on your site anyway, and wait for the C&D. You can then decide whether or not you want to fight it or comply, or offer to come up with a negotiated settlement. Even if the label somehow comes out "owning" the material, it probably would fall under "Fair Use" for you to display it simply as a demonstration of your own work. After all, you never signed any kind of "work for hire" agreement, did you? (Please say "no.")
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Fair Use would not apply. Fair Use is not a claim you make to a judge that you think it ought to be fair to use the song because of yada yada yada. Under the doctrine of Fair Use spelled out in US law, the only uses that could be considered Fair Use are current events news reporting, criticism and review, academic research, classroom teaching in grades K-12, and parody. Nowhere does the law say "or for demonstration purposes or in a portfolio or resume." A demo reel isn't any of those specifically defined Fair Uses and thus the Fair Use defense would not apply. Indeed, posting the video as a demo is advertising for new business, pure and simple, and I can't think of any use that is MORE of a commercial use of the music than that.
 
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>>>>Ths issue isn't ownership of the master recording, it's whether the OP has a license for synchorinization rights from the owners of the song's words and melody. If the label acquired the rights to the music the band created and became the publisher of the music, it's their choice whether to grant a sync license or not. Absent a written contract granting such a license signed prior to the band's signing with the label there's likely nothing to be done.<<<<

The video in this case is a type of "master recording" (made _prior_ to any agreement with any record company, and which therefore they have no claim over).
It is not "the" master recording (as in, a record company financed album), but it certainly is _a_ master recording. Legally owned by the OP, in the absence of any agreement to the contrary, which is why I used that term.

>>>>Fair Use would not apply. Fair Use is not a claim you make to a judge that you think it ought to be fair to use the song because of yada yada yada. Under the doctrine of Fair Use spelled out in US law, the only uses that could be considered Fair Use are current events news reporting, criticism and review, academic research, classroom teaching in grades K-12, and parody. Nowhere does the law say "or for demonstration purposes or in a portfolio or resume." A demo reel isn't any of those specifically defined Fair Uses and thus the Fair Use defense would not apply. Indeed, posting the video as a demo is advertising for new business, pure and simple, and I can't think of any use that is MORE of a commercial use of the music than that. <<<<

Fair and accurate enough, sir. "Fair Use" was a mis-attribution by me, however, based on the circumstances, it is quite possible that a judge might deem a demo presentation as a "fair use" (lower case). And as stated in my original post, "a million other variables may apply." But the OP still owns the rights to the _video_ recording, which is why I encouraged him to exploit that particular piece to his best advantage.

The record company can't offer a synch license to material they don't own the rights to. It is prudent to guess that they may have signed, or plan to sign the songs to an affiliated publishing company, and that they may be planning to re-record the songs in the video, or may have licensed/leased the band's original master recordings; however, this smells a lot more like a "land grab" based on an infinitely less specific deal memo. In any event, the OP owns the video rights, has a verbal agreement (prior to any other record company agreement) to a synch license for the song with the band (not as iron-clad as signed paperwork, but not an out-of-the-question issue for breach-of-contract with the right attorney working the case; and I am of course making suppositions based on incomplete information/the only facts available), and the OP has a right to expect either at least the terms of the initial agreement to be adhered to, or some form of buyout payment, or both.

To the OP: As previously stated-- 1) check with a qualified music business/entertainment law attorney, 2) a consultation with someone like Moses Avalon would be strongly advised, and 3) if a lawyer seems like too big of a financial burden right now, check with your local/closest chapter of the VLA (Volunteer Lawyers for the Arts). And, if you have any other questions that I might be able to help with (which in no way should, could, or would be construed as legal advise), feel free to e-mail me directly at Gregg@MightyNoStars.com .

GJ
 
Gregg Juke said:
>>>>Ths issue isn't ownership of the master recording, it's whether the OP has a license for synchorinization rights from the owners of the song's words and melody. If the label acquired the rights to the music the band created and became the publisher of the music, it's their choice whether to grant a sync license or not. Absent a written contract granting such a license signed prior to the band's signing with the label there's likely nothing to be done.<<<<

The video in this case is a type of "master recording" (made _prior_ to any agreement with any record company, and which therefore they have no claim over).
It is not "the" master recording (as in, a record company financed album), but it certainly is _a_ master recording. Legally owned by the OP, in the absence of any agreement to the contrary, which is why I used that term.
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Absolutely agree, the video is certainly a master recording of a performance and absent a written work-for-hire agreement it certainly appears our OP owns it lock, stock, and barrel. My comment was meant to suggest that owning the master use rights to that specific performance recording is not sufficient to allow him to actually do anything with it, he also needs the sync rights to the words and music. Whether he has a sync license issued prior to the music being acquired by the label is open to serious debate. Even if he does, proving it in court is going to be very difficult since it will rely on testimony that the conversation he cites did occur and anyone party to the discussion from the band's side is going be loath to risk p***ing off the label by going against their position. Another object lesson in the advice to always put it in writing. Verbal contracts are worth the paper they're written on.
 
Yes! Absolutely, Steve. It would depend in large part on whether this is worth the time or not to pursue-- Is the label in question one of the big three, with an army of attorneys, legal consultants, and accountants on their side, or is this "Eat at Joe's Records." And again, even if our OP/DSL is in the right, it may be difficult to enforce the integrity of that "rightness." (Law of Diminishing Returns)...

Thing is, they are probably used to flexing muscles and rattling sabres, and having folks give up due to fear, which is why it might be in his best interest to at least try the exact opposite!

DSL, if you do pursue this, could you keep us informed on your progress every once-in-awhile?

GJ
 
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