He never sold the rights to his work, he was only paid for the performance on the night. If it had been turned into a commercial product he would have gotten significantly more plus royalties no doubt. The only copyright rests with the score of the music that was performed, and I guess the rights of the members of the orchestra to control what their performance could be used for outside of the performance on the night. There are performances by world renown vocalists in there as well, but again they haven't sold the rights to that performance either.

you are talking (asking) apples and oranges.

You have copyright - and then you have mechanical licence.

If I hired a band to play some music that I recorded - I still retain the copyright - but I don't have the permission to use footage of the band playing my music (unless I got it in writing first).

So to answer your question - which isn't really that mirky - all the guy needs is consent, in writing, from the folks involved to add their performances in the CV you are putting together and you are covered.

I knew a fella some time back who did the very thing you're describing. He was a cinematographer who used clips from the various commercial projects he'd worked on. He told the powers that be (copyright holders) what he was doing--teaching, lecturing. With their blessing, he moved forward and had no problems whatsoever.

As has been said so many times before, the answer to these questions is, I think, simply ask--get permission.

J--

This would all be very good advice, I've given the "if in doubt ask" advice myself several times on this forum and for one element of this DVD have in fact done just that and been granted permission.

However the major components of it are far more difficult. The performances were never done for the purposes of recording. We are talking about over 100 musicians who in some cases performed the works 10 years ago. Obviously if this was performed for a commercial release the copyright would be vested in a single entity or at most two or three. I hadn't really thought about this before I made the original post but I think technically we'd need the consent of each one of the 100 or so performers!

Hmmm...tricky one here.

I look at this way - you make this dvd as a not for sale product...or a work for hire if you will. If he is hired to go speak somewhere, or appears on some talk show, and they show a clips, or clips, from this DVD it could be considered promotion. In the broad sense this is allowed - someone goes on any talk show and they show a clip. Likewise people who do speaking tours may also use clips. It is like an author doing a book reading, a band going on tour to promote their new album, MTV news doing an interview and so on. At least this is how I am reading your orginal question.

Now the other issue you bring up is the "over 100 musicians" part. If they were all hired out to perform this guys piece than I would think they were already paid for their musical services. As for their likeness that may be another story. I shot some footage for a guitar player and he wants to use it on a DVD which is fine - but I brought up to him that he really should call up the guys he was playing with that night to check with them. Even though the focus of the video is the guitar player certianly the musicians behind him might have concerns especially if there is any mentions of them. They may *want* a mention or they may *not* want a mention. In your case calling up 100 or so muscians to check probably isn't going to happen - so you might consider just blurring out everyone except the main person the DVD is for.

But no matter what it is tricky in the same vein that the whole issue is tricky. Have you ever seen the documentary Kurt and Courteny? In that film you see interviews with various people such as Kurt's Aunt who proceeds to put on some old reel to reel of him when he was 8 or somehting....except you don't hear the music. The director/narrator explains in a VO that John Silva or whoever has prevented the music from being used in the film. This happens several times in the film. Just something to think about.

Only thing I'll say here Farss.....the person creating the work, ie; your guy, is responsible for all clearances. But that doesn't absolve you from any legal wrangling that will potentially take place.
No one has mentioned publishing, sync licenses in the accurate sense (has nothing to do with mechanicals) or union fees if a union orchestra/band was used.
Farss, you already know the answer, I suspect you are just seeking support. :-)

Spot I am just curious - legalities aside for a sec...say I come over to your studio and sit down with you for a while and do an interview. In the interview we talk about your music, you talk about how you have had music in films and maybe you even sit down and play some selections...not video, I mean audio as in play live. Now I go to edit this and as you talk about, say Last Samuri, I show some clips from that and so on. Now it airs on TV or where ever...now tell me honestly. Would you sit there during the interview and say "By the way you can't use any of the music I just played and you can't use any clips from any of the films I mentioned I worked on unless you obtain all the copyrights, mechanicals etc etc".? Now lets say I was hired by you to do this, or even hired by a label to do this.

The reason I ask this is because as I am reading this the DVD would be for use sort of like a VPK. In which case whoever actually airs the piece would have to pay certian things and as far as mechanicals - how does promotion fit into that? I did not think it did and I have never ever once had any label or publicist or artist or manager come to me and tell me I could not use their music, music video, whatever unless I got a sync license. (As it relates to promotion and/or interviews)

Keep in mind that promotions and publicity departments send out videos of acts on a daily basis, just as film studios send out film clips on a daily basis, for use in these sort of things. I know you know this and I also know you are a stickler when it comes to these issues - but unless I am misreading what Farss has asked this would fall under that "promotion" thing and unless Farass was going to start having public screenings for money and use it in a film or what not how would he have to worry about it? Just asking....nudge nudge wink wink.

Actually, I do. And most artists with publishers are cautioned about what they can and can't allow to be used. If we were talking about a song I wrote, and you asked me to play a little piece, you bet I would allow it. But I wouldn't even comment on the use of say "Samurai" because even *I* am not allowed to show my music synced to that show. In fact, i'm not even allowed to perform that music without permission. And have indeed had to ask permission.
We won an Emmy for "The Way West." I have all the symphonic scores for all 64 parts in what's called the "Book." I cannot, and have not, perform any of the music from that without permission. I wrote it, but it was for hire. I've performed it with the Met Orchestra. We were NOT permitted to show scenes from the film for that concert, due in part to the number of copyright holders from the film. So, we used similar footage. And used footage from the show that was not part of the copyright mess related to that part of the show. PITA? YOU BET it is. But in the professional world, rights are highly respected because you never know when someone will trample on yours.
Recently I had dinner with Chris and Trish Meyer. This topic came up. They told me of a person that approached them for a job. In this person's demo reel, there was footage that they knew was a violation of the person's hire agreement, and asked him/her about it. He admitted it was in violation, but it was his work. This persons work is found in some of the biggest Hollywood blockbusters there are.
They didn't hire him/her. Because they felt that if this person would violate their agreement with that studio(s) then it wouldn't be uncommon for him/her to violate the agreements that the Meyer's had made either.
I hate the rules, they are a PITA most of the time. But I expect others to respect my rights, so I respect theirs. Pure and simple. Believe me, I WISH I could include "Samurai" or "Hidalgo" on my reel. I can say I did the work, you can see my name or our studio in the credit sheets, I can show you the checks for the work. But I cannot use any portion of the work, period. Not for promotion, free performance, nada.
BTW, it took a long time to get permission just to perform a song I co-wrote for "The Native Americans," and we were on tour while the series was really hot. We even had the right to show footage from the series during the show. But not permission to perform works from it.
BTW, if the label hired you, THEY would obtain sync rights from Disney, Paramount, Sony, or whomever, and provide you with the releases. That's how it's done.
I really didn't want to comment on this. I get suspended in disbelief when I read what some folks have to say about copyright. (not you, Filmy, you are generally pretty reasonable) It's odd. That stuff doesn't matter when you don't have anything copyrighted. It isn't important when it's not your own work people are stealing or diminishing. But as soon as it's yours.....it's a whole different game. Trust me.

SPOT,
I totaly understand what you're saying about Samurai, you did the work, you got paid for it, you sold the rights to it, someone else owns those rights now and it's totally up to them to decide what can and cannot be done with it. You can still SAY that you did the work. You could even buy a copy of the DVD and send to it people with a note saying which bit to listen to to hear your work. For certain you cannot copy it, include it in a derivative work or probably even perform that piece of music again for the rest of life and not can anyone else for 75 years after you die.
This is so obvious to me at least I don't know why it needs to be mentioned to be quite honest. If this situation was anything like that I wouldn't be asking, I wouldn't even have considered the job in the first place.
Let me give a fairly specific example here.
Let's say SPOT takes his band on tour, in each city he hires a local lighting guy and a few local dancers. These performances are recorded by the venue simply as a record, this happens at just about every venue these days for a number of reasons. So years down the track the lighting guy or the dancers want to be able to show the work that they've done, not just with SPOT but the other acts as well. They're not trying to make a buck out of the performace OK ,they're just trying to get work. The rights to none of these performances were sold for commercial release. Now OK I can see the potential for issues here, unless SPOTs band were playing all their own compositions the composers rights kick in. Even so they've hardly suffered any commercial damage, and yes I know that's not very relevant!

But lets look at this from another angle, lets say he did own all the rights to his work and he wants to put together a showreel, again not for commercial release, just a showreel. Now if this is all as tangled as I'm starting to think it could be, he just violated the rights of the dancers and the lighting guy. Sure they were work for hire, but they were only paid for the work at that performance, not to be part of a video, but it's hardly a 'video', SPOT's not making money out of their work. If he was, fair enough, maybe they should get a few dollars out of it too, they contributed to it.

Perhaps some of you think I'm trying to be a snake and find a way to sneak through a gap. I can understand that some people in the industry have delevloped a siege mentality and that deeply saddens me, I'm certain it does nothing for their creative spirit and that in turn diminishes all of us. All I can say is please remember that not all of us are the enemy, for myself I'm past caring who wins the war, I just want the war to be over so I can get back to enjoying music.

BTW, I just received written release to use the material that has known copyright in this production, so yes I did as ask and I did get. No problem there. If I have to find the names and addresses of a 100 or so musicians, 40 vocalists, 20 stage hands and a scattering of ushers for the rest of it the stamps alone will cost more than the jobs worth.

. . a very sad state of affairs indeed . . . well understood here . . but even so, I'm really wondering what type of creation I can make now . . hmmm.... Would I be pissed that someone had bootlegged my work? . . I don't think I need to answer my own question . . And yes what you speak of "has" to be addressed. This IS a minefield, especially as most of us who have "engaged" with this type of post before, IMHO just want to be legal and have the opportunity to "broaden" their own life's experiences in the time left to us . . Morbid? Well, yes . . Honest? I think I am being that too .. . NO, I know I'm being that.

Thanks for posting this farss . . I think I'll take up basket weaving . . And no, I aint belittling these concerns by injecting some humour . . guess it's my way of coping . . I'm assuming there's no copyright on that . is there?

Grazie

This really has nothing to do with where it started from but anyway.
One of the few releases i used to have has music. I have absolutley no talent in that area myself by the way. But after a stressful day, I'd come home and listen to a bit of heavy metal, just cause its really good at taking you somewhere else.
But lately as SPOT has said there is just so much crap out there and the whole music business seems just like, well business. For me it's taken away the enjoyment of music. Maybe I'm spoilt having grown up in a time when it seemed like musicians believed in what they did.
About the only music I really enjoy now is traditional Indian music. I had the pleasure many years ago of spending a few hours with a very devout exponent of the art, it is a form of music that's pretty well impossible with total belief. I would have sat in front of this guy for 20 minutes and he had no idea whatsoever that I was there.

I always think I am being a bit more clear than I am when I ask these things. :) My question was more based on what was talked about in the interview, or even the reason someone was available in the first place. Obviously if you didn't talk about "Last Samurai" than it wouldn't be considered, or if I said "So how did your work with "Last Samurai" come about?" and you replied "I can't comment on that" it would be a non-issue. I mean I can site first hand two different sides of this coin - in one show I talk to an artist who tells how they have the 'theme' song for a new film. They play the song for me and they also do it on stage and use parts from the film in the video behind them. But there were not any issues with using either, it was publicity all around for both the artist and the film. Same show, different artist(s) - they talk about doing music for "PSI Factor" but also tell me before hand that they talked to the production company and they were not allowing any clips for promotional use out. (And it is ironic because actors on the show could use clips when they went out doing press. Seems to be an anti-musician thing if you ask me)

So I guess a better question would have been started with "With the material you are allowed to talk about..." :) A lot of this all is a bit like Vinnie Vincent. I think overall the feeling was that having him sign this non-disclosure agreement was stupid because everyone under the sun knew he was in Kiss and having to refer to them as "That band you were in" was silly. How very Spinal tap this all becomes at times - "Don't touch it. Don't even look at it."

they talk about doing music for "PSI Factor" but also tell me before hand that they talked to the production company and they were not allowing any clips for promotional use out. (And it is ironic because actors on the show could use clips when they went out doing press. Seems to be an anti-musician thing if you ask me)
Yeah, it does seem that way... But that's what I was referring to, Filmy. If you ask me about Samurai, I can talk about it. I *might* even get away with playing the melody from a scene on an instrument. But I can't use the score, and can't grant permission for use of the video, cuz I don't have it myself. But you can damn well bet if my face appeared, or if I had a name of billboard value, the studio would give me permission in no time at all.