This is an awkward boundary issue in addition to a copyright issue. You need a contract clause that agrees the client is responsible for all licensing.

Use that clause in your contract when you are subcontracted to edit a work for hire on a project that truly belongs to someone else. The owner of the completed project is the one who requires the license - not you. Employees and subcontractors do not require a separate license from the owner unless they also use the project for other purposes.

If they have it wrong then it they who have it wrong.

This is why it is so awkward, you are right, they are wrong about sync licensing but then this is their responsibility not yours. You can advise them but if you refuse to do business with them you cross over the boundary of a decision that belongs to them and are in the position of accusing them.

I think the best thing to do is to have a contract where licensing issues are declared to be an issue the client is required to resolve when shooting a project that will belong to a different client. If you also advise them that you believe a sync license is required, I doubt you would be found liable should it become an issue.

Getting the client to take legal responsibility is always a good idea.

I've told this story before, but I did a project years ago for the NSA, and they wanted "We Won't Back Down" as the background music. I explained that they needed to get copyright clearance and that I couldn't do it, and to check with their lawyers to see if they could. Two days later, my client came back with the solution:

They were going to classify the project as "Top Secret" (which it wasn't) so that no one outside the agency would know about it!! I finished my job, and the video disappeared into thin air.

Bob,

I agree with most of what you say, but if YOU are the editor and you knowingly use copyright material on a project without permission, then you are liable for it. The client can claim that you did it without their knowledge.

If the client claims they have the rights, and you are comfortable with that, then you are in the clear . But I would get it in writing.

Many of our clients do license their own music for their projects. IF we have doubts, we have a waiver that they sign.

Dave T2

"You can advise them but if you refuse to do business with them you cross over the boundary of a decision that belongs to them and are in the position of accusing them."

I don't think i quite agree with that. If you follow your logic to the conclusion that means you're advocating that a contractor work for the client in any situation, even knowing it's illegal. Unless you've already signed a contract, you always have the right to refuse work for any reason, or for no reason. Even after a contract is signed, if significant items surface that weren't presented before signing, both parties should have an out available to them. Finding out after signing a contract that something potentially illegal is involved is certainly grounds for breaking a contract, with no recrimination upon yourself involved. So, the decision to not use copyrighted material can certainly rest upon the contractor, even if the only way to make that decision is to pull out of the project.

If you follow your logic to the conclusion that means you're advocating that a contractor work for the client in any situation, even knowing it's illegal.

Aiding and Abetting come to mind.

Except how do you know it's illegal?

Aiding and abetting is based on reasonable belief.

If the kid down the road asks me to run off 20 copies of a commercial DVD it's very reasonable for me to know that what I'm being asked to do is dodgy.

If a client asks me to transfer titles that they've produced that contains music it's pretty reasonable of me to assume their legals etc have taken care of the licencing issues.

If it's all a bit grey get your legals to draw up a proforma contract with the magic word " warrant" in it.

I've played this "I'm holier than thou" game. Bad move in this industry, even the body that administers copyright thought I was nuts. End result, I lost the job and a chance to get a good client. Someone else did the job, got the client and is living very happily thereafter.

Bob.

A "Hold-Harmless" clause in a contract is almost useless. It could go to show that you KNEW you needed to be indemnified because you KNEW what you were doing was of dubious legality, therby helping to prove that you SHOULD have not done it in the first place. In other words, you can't claim ignorance of the law.

A "Hold-Harmless" clause in a contract is almost useless. It could go to show that you KNEW you needed to be indemnified because you KNEW what you were doing was of dubious legality, therby helping to prove that you SHOULD have not done it in the first place. In other words, you can't claim ignorance of the law.

If it's in all contracts, that's not true. I could have every client sign a piece of paper that says music they gave me they got the rights to, doesn't matter if they used music or not.

MichaelS: did they SAY they have sync rights? They could of, they're a cable company & could very well pay them for their own commercials they'd make, or hire out. BMI & ASCAP deal with that stuff, that's one of the reason's they are there (and for a TV show, the production company pays them, the TV station pays them & the cable/satellite company pays them, all for the same stuff).

You could of just said "Fine, give me it in writing that you have the sync license & I'll do it." Normally they just fill out a reports every so often & send it in to BMI/ASCAP & then get a bill (like radio stations). If I came to you to do a job & said I have the sync rights all set up, would you question me (if I were a client)? Would you call BMI/ASCAP to check up on me, would you even think twice if I said "Got permission, lets go!"?

And if so, why? If I hired someone to dig me a pond they don't request a copy of the deed to make sure I own the land. if I hired someone to build me a house & I provided the lumber they don't call the FBI to see if a lumber truck has been hijacked, but if I hired someone to do a video for me I should go all out to prove they can legally do it?

In my opinion, BMI, ASCAP & the RIAA have purposely scared all the smaller guys in to being WAY to cautious for no reason other then the threat of legal action even if no threat exists. (isn't that, legally, terrorism?) Perhaps to get more $$ for them by bullying people in to a corner that they don't need to be in. Kinda like unions. :)

You are correct.

Broadcasters (radio, television, cable media departments, etc.) have no more right to synchronize music than anyone else. They DO have the right to broadcast the music because they pay ASCAP / BMI for that right. But, synchronization is a completely different license and is never provided to any end-users (like a television station) as a blanket policy, like broadcast rights licenses are.

If that were the case then I could produce all of the commercials I wanted and leave the music track off, send them to the puny little local UHF station and have them sync the latest top 40 hits to them and I (and them) would be immune from prosecution -- but of course, that's nonsense!

Sync rights to copyrighted music is negotiated on a song by song basis with writers / performers / producers / distributors (usually through a clearing house contracted to do it for them).

That's why there are buy-out or needle drop music packages produced specifically for that purpose. To make licensing high quality music affordable for the many production folks that have to live within the constraints of realistic budgets.

You were completely right in refusing to participate in the illegal use the copyrighted work of others. And a "hold harmless" or release agreement would NOT protect you from legal action, no more than getting a hold harmless agreement from the head bank robber that states you could drive the getaway car without worrying about prosecution. A document that states that you will be not be held responsible for committing an illegal act is, by its nature, invalid.

A document that states that you will be not be held responsible for committing an illegal act is, by its nature, invalid.

This is true but as the editor you're not the one commiting the act. You can use any track as a temp track for a set fee. It's then up to the broadcaster to secure the sync licence. So long as they're well aware of this and you've informed them of such you're covered.
Of course the broadcaster would be dead stupid to try to secure a sync licence after they've paid you for all the work but it does happen this way around.

Hold Harmless clauses in commercail dealings do work, that's why I'm having a contract rewritten at the moment. They're obviously useless in criminal matters. There's a Hold Harmless clause in every software licence, probably even the Vegas one.

Farss - An intellectual properties seminar I attended years ago was pretty clear on the points I was attempting to make in my previous message. But, if you're comfortable doing business this way then go for it, but not me. .

Thanks all.

"A "Hold-Harmless" clause in a contract is almost useless. It could go to show that you KNEW you needed to be indemnified because you KNEW what you were doing was of dubious legality, therby helping to prove that you SHOULD have not done it in the first place. In other words, you can't claim ignorance of the law."

In most cases when you are the presumed expert, such as shooting wedding events, then the "Hold-harmless" clause is absolutely worse than worthless because it would be used as an admission of culpability.

In this case, the cable TV company could arguably be the superior expert in copyright issues, and a simple clause putting all licensing responsibility on them would probably be sufficient.