Creating a marketing video; adding 3rd party content

[oldscout]

I create marketing videos for clients by capturing and creating my own content. I shoot my own stuff and edit the videos myself. I'm based in the continental USA.

I've been retained to create a marketing video for a client to demonstrate a new product. This video will also require the use of 3rd party content (video and still images) per the wishes of the client. His attorney has advised him to either get permission from the owners of the 3rd party content (preferable) and/or tag the 3rd party content with a source credit while the 3rd party video clip is visible in the main video (adequate). The content will only be shown for brief moments in the final video and serve as supporting material. Examples of 3rd party content are an image of a newspaper headline or a video clip (5-10 seconds) extracted from an evening news program. I intend to follow the instructions of the attorney in producing the final forward-facing, public video.

In the contract between myself and the client, the client will be responsible for proofing the final video before release and check for errors and omissions and hold me harmless for loss of income and other hardships that he may incur due to errors in the video. However, the client will not hold me harmless/indemnify me in the event of legal action arising from copyright infrengemnt by any 3rd party content owner.

I contend that since I'm following the instructions of his counsel to the letter that he is ultimately responsible for the final content, especially since he has agreed to bear the responsibility of proofing, and thereby absolving me from any liability.

Hoping I could get opinions on how I should present my counter-argument to my client. BTW, my client is a really nice guy - first class - and is receptive to further discussion. Thanks in advance...

 

[PayrollHRGuy]

You need to ignore the second part of the lawyer's suggestion and stick with the first part. Get written permission from the copyright owners. Provide the client with copies of the written permission and keep a copy for yourself in a safe place.

 

[oldscout]

You need to ignore the second part of the lawyer's suggestion and stick with the first part. Get written permission from the copyright owners. Provide the client with copies of the written permission and keep a copy for yourself in a safe place.

I do see your point, but I'm still looking to devise a counter-point to my client not wanting to indemnify me despite adherence to his attorney's instructions.

 

[quincy]

I create marketing videos for clients by capturing and creating my own content. I shoot my own stuff and edit the videos myself. I'm based in the continental USA.

I've been retained to create a marketing video for a client to demonstrate a new product. This video will also require the use of 3rd party content (video and still images) per the wishes of the client. His attorney has advised him to either get permission from the owners of the 3rd party content (preferable) ...

Not only is getting permission from the copyright holders "preferable," it is necessary if you wish to avoid infringing on the copyright holders' rights.

... and/or tag the 3rd party content with a source credit while the 3rd party video clip is visible in the main video (adequate).

Crediting the creator of content is not "adequate" if you wish to avoid a copyright infringement action. You need permission (generally granted in the form of a license) from the copyright holder - with very few exceptions.

The content will only be shown for brief moments in the final video and serve as supporting material. Examples of 3rd party content are an image of a newspaper headline or a video clip (5-10 seconds) extracted from an evening news program. I intend to follow the instructions of the attorney in producing the final forward-facing, public video.

I recommend you only follow the advice of the lawyer in regard to getting permission from the copyright holder.

In the contract between myself and the client, the client will be responsible for proofing the final video before release and check for errors and omissions and hold me harmless for loss of income and other hardships that he may incur due to errors in the video. However, the client will not hold me harmless/indemnify me in the event of legal action arising from copyright infrengemnt by any 3rd party content owner.

Both you and the client can be sued for infringement if you use copyrighted material without authorization. Because your client's plan is to use the copyrighted material of others in a marketing video, permission is even more important. Commercial uses of copyrighted material is rarely considered a fair use of the material.

I contend that since I'm following the instructions of his counsel to the letter that he is ultimately responsible for the final content, especially since he has agreed to bear the responsibility of proofing, and thereby absolving me from any liability.

Sorry but that defense will not work for copyright infringement. If you know the content of your video uses copyrighted material, and you use it without authorization anyway, that is willful infringement. If the copyrighted material is registered with the US Copyright Office, statutory damages and attorney fees and court costs can be awarded the copyright holders. Damages awarded for intentional (willful) infringement exceeds the statutory $750-$30,000 per infringement, and can be as high as $150,000 per infringement.

Based strictly on your attorney's second suggestion (saying attribution is adequate), I recommend you locate another attorney, one who specializes in copyright law.

It is good that you have a nice client. I hope he is also smart and recognizes the legal need to acquire permission from rights holders. If permission is not granted, the copyrighted work should not be used.

Good luck.

 

[PayrollHRGuy]

I do see your point, but I'm still looking to devise a counter-point to my client not wanting to indemnify me despite adherence to his attorney's instructions.

Unless they are providing the copyright protected material you should be indemnifying them.

 

[quincy]

oldscout, you should discuss your liability insurance needs with your insurance agent - and you will want any contract personally reviewed by an attorney in your area prior to signing.

Again I have some doubts about the attorney you have already been in contact with as it appears he is not comfortable with IP laws. Infringement suits can get costly quickly. You want to take every precaution possible to avoid one.

Good luck.

 

[PayrollHRGuy]

Oldscout,

Is the 3rd party stuff you want to add generic or about something specific? If it is the former there are plenty of places that you can get the video and stills you need that when purchased comes with the copyright authorization.

 

[quincy]

Oldscout,

Is the 3rd party stuff you want to add generic or about something specific? If it is the former there are plenty of places that you can get the video and stills you need that when purchased comes with the copyright authorization.

Third party content almost always requires licensing.

The type of insurance you should ask your insurance agent about is generally referred to as media liability insurance, which is often part of a business insurance package.

As a note: Several videographers/filmmakers have been sued for using even small amounts of copyrighted material without authorization. One example out of many many examples was an infringement lawsuit against Michael Moore for use of 70 seconds of a rights-protected video. The lawsuit settled out of court (as most lawsuits will) but it was a costly lesson for Moore.

 

[Zigner]

Third party content almost always requires licensing.

The type of insurance you should ask your insurance agent about is generally referred to as media liability insurance, which is often part of a business insurance package.

As a note: Several videographers/filmmakers have been sued for using even small amounts of copyrighted material without authorization. One example out of many many examples was an infringement lawsuit against Michael Moore for use of 70 seconds of a rights-protected video. The lawsuit settled out of court (as most lawsuits will) but it was a costly lesson for Moore.

I think that PayrollHRGuy was talking about places that let you use stock images (for a fee) - yes, you get the license from them.

 

[PayrollHRGuy]

That is exactly what I was talking about.

 

[quincy]

I think that PayrollHRGuy was talking about places that let you use stock images (for a fee) - yes, you get the license from them.

Right. For a licensing fee.

Unless the material is in the public domain, permission from the copyright holder is generally necessary. The stock photo agencies generally purchase the copyrights from the creators of the works then license the works to others. These tend to be limited licenses and often not for commercial uses.

 

[PayrollHRGuy]

I believe that purchased pretty much implies a fee.

And there are plenty that do so for commercial purposes.

 

[quincy]

I think that PayrollHRGuy was talking about places that let you use stock images (for a fee) - yes, you get the license from them.

I believe that purchased pretty much implies a fee.

And there are plenty that do so for commercial purposes.

It depends on the specific license and company.

 

[PayrollHRGuy]

Well of course it does. But the OPs question wasn't about where to find the stuff.

 

[quincy]

Well of course it does. But the OPs question wasn't about where to find the stuff.

Um, I read his question. And I answered it. You were the one who mentioned stock photos for some reason.