Steve Gordon is an entertainment attorney specializing in music, television, film and video, and the author of The Future of the Music Business (Hal Leonard 4th ed. 2015).
Although MTV does not play music videos anymore, the format has become more important than ever in breaking new artists. But before making your own video, though, it’s important to know the legal ins-and-outs of producing them.
This is the eighth installment of my 11-part series on basic music industry agreements, focusing on the business of producing music videos. This article contains a form agreement that can be used to hire a video producer, as well as releases for people and locations appearing in videos.
In the first part of this Introduction, I give a brief history of music video followed by a survey of how successful artists have used and continue to use them to launch their careers. The second part of the Introduction offers a summary of business considerations in producing videos.
Part I: History & Continuing Importance of Music Videos.
1. Before Music Videos
Audiovisual presentations of music have existed since the first motion pictures containing sound. In fact, the first Hollywood “talkie,” released in 1927, was a musical featuring Al Jolson called “The Jazz Singer.” Before the invention of the video cameras, there were many musical short films featuring the performance of single songs, such as Frank Sinatra’s patriotic “The House I Live In (That’s America To Me).”
These films were sometimes shown before main features at movie theatres. In the 1960’s, artists like the Rolling Stones and the Beatles started to make short form films of individual songs to promote their albums. The dawn of what we think of as music videos began in the 1970’s. For example, in 1975, Queen commissioned the production of a video for their new single, “Bohemian Rhapsody,” to show on Top of the Pops, a popular British TV show showcasing the week’s top hit songs. In the U.S., Video Concert Hall, launched on November 1, 1979, was the first nationwide video music program on American television, predating MTV by almost three years.
2. MTV and the Birth of the Era of Music Videos on Television
In 1981, MTV launched by airing “Video Killed the Radio Star,” and this began an era of 24-hour-a-day music videos on television. The founders of MTV, including Robert Pitman (current chairman and CEO of iHeartMedia, Inc. (formerly Clear Channel)), convinced record labels to produce more videos and to give them to MTV for free, just as they gave free records to radio stations. The pitch was that the videos would promote the labels’ records and increase sales. The only money MTV paid the labels was a relatively small fee to secure exclusive rights to play select videos for a limited period of time.
For instance, MTV paid Sony Music $4 million a year for such rights. By the mid-1980s, MTV grew to play a central role in marketing pop and rock music. Many important acts of this period, most notably Madonna, Aerosmith, The Who, Phil Collins, John Mellencamp, Phil Collins and Billy Idol, owe a great deal of their success to the seductive appeal of their videos. After years of controversy regarding the lack of diversity among artists on the network, MTV aired Michael Jackson’s “Billie Jean,” “Thriller” and other videos, which helped Jackson become the best-selling pop artist of all time.
But by the late 90’s, MTV sharply decreased the number of videos it showed on its airways. Former MTV president Van Toeffler explained: “Clearly, the novelty of just showing music videos has worn off. It’s required us to reinvent ourselves to a contemporary audience.” A decade later, MTV was playing an average of just three hours of music videos per day, preferring cartoons such Beavis and Butt-Head and, later, unscripted reality shows such as Jersey Shore.
MTV continued to play some music videos instead of relegating them exclusively to its sister channels (such as MTV Hits), but around this time, the channel began to air music videos only in the early morning hours and in Total Request Live or TRL, which aired the ten most requested music videos of the day, as voted by viewers via phone or online. As a result of these programming changes, Justin Timberlake implored MTV to “play more damn videos!” while giving an acceptance speech at the 2007 Video Music Awards. Despite the challenge from Timberlake, MTV continued to decrease its total rotation time for music videos in 2007 and shut down TRL in 2008.
3. YouTube and the Rise of Cover Videos
YouTube was created by three former PayPal employees in February 2005. In November 2006, it was bought by Google for $1.65 billion. The online video sharing site is this generation’s MTV. Artists like Beyoncé and Taylor Swift regularly have hundreds of millions of views for new videos, and their record companies and music publishers monetize them by allowing ads.
YouTube keeps approximately 40% of the ad income, although the details of their formulas for arriving at the exact amount is not public record, and the balance is paid to the copyright owners. YouTube allows you to share your videos with a worldwide audience. However, the thing that makes YouTube great for new artists — that it’s so easy to upload and reach a huge audience — also makes it incredibly competitive.
YouTube reports that hundreds of hours of video content are uploaded to its servers each minute. So, although you have a potential audience of millions that you can directly reach with your video, standing out in the sea of other content is a huge challenge. One way new artists have used YouTube to attract attention is to “cover,” that is, re-record hit songs. A good example of an artist who was discovered from making covers is Justin Bieber.
Before he was the erratic “bad boy” that many love to hate, Justin Bieber was just a kid from Stratford, Ontario. At age 12, Bieber began to regularly post covers of hit R&B songs on his YouTube channel under the username “kidrauhl.” As his videos got more and more views, he was eventually discovered by talent manager Scooter Braun. After tracking Bieber down, Braun flew the then-13 year old to Atlanta to record some demo tapes. Braun then introduced Bieber to Usher, who reportedly beat out Justin Timberlake in a bidding war to sign the young YouTube star.
After being signed by Usher, Bieber recorded his first album, released the single “One Time,” and proceeded to have his face put up on tween bedroom walls everywhere. He’s had 3 multi-platinum albums that have all reached #1 on the charts, and continues to play to sold-out arenas all across the world.
Another example of how cover videos have launched careers is Vazquez Sound, a musical trio known for their covers of hits including Adele’s “Rolling in the Deep,” which has garnered over 172 million views. In September 2014, Vazquez Sounds released their first original album, which was an instant hit that earned them a nomination at the 2015 Latin Grammys for “Best New Artist.” Another example is the pop duo, Karmin. They broke a couple of years ago with a string of clever, sassy covers of hits by acts such as Lil Wayne, Nicki Minaj, and Katy Perry.
Alessia Cara, a 19 year old Canadian singer and songwriter, is another example. She is currently signed to Def Jam and is best known for hit single “Here,” which reached the Top 20 in the United States. Before her original album was released, though, Cara was known for her acoustic song covers on YouTube.
4. YouTube Musical Celebrities
Other Artists have made a career by producing original content for their YouTube channel. A prime example is Lindsey Stirling. She plays the violin, she dances and then she does them both at the same time. Stirling began posting videos of herself performing in 2007 after failing to be signed by a major record label. Now, she claims they are begging to sign her, but it’s too late — she doesn’t need them anymore. Explains Stirling: “It’s a very loyal fan base that wants you to succeed because they found you. It wasn’t some big radio station or record label that shoved art down someone’s throat.”
Coming in fourth in Forbes’ round-up of the most financially successful YouTube personalities, Stirling raked in $6 million in earnings last year. She has also released two albums, Shatter Me and Lindsey Stirling, scored a book deal, and developed a lucrative touring career.
5. YouTube’s New Subscription Service
YouTube recently unveiled its long-discussed paid subscription service, “YouTube Red.” The new service offers ad-free versions of all current YouTube videos, and additional exclusive content from some of the site’s top creators including PewDiePie and Lilly Singh, both of whom perform music as well as comedy. It launched on October 28 and costs $9.99 per month.
YouTube Red will have a big emphasis on music, providing access to music streaming service Google Play Music and a new app called YouTube Music, which offers a Pandora-like personalized playlist based on a selected song or artist. Both music apps also have ad-supported versions that non-Red users can access.
6. Self Made Indie Videos Launching Careers On Social Media Such As Vine & Instagram
Over the past several years, with the advent of smart phones with video capability, as well as greater connectivity across social platforms, an entirely new phenomenon has occurred: singer songwriters as well as rappers catapulting themselves to recognition and commercial success by using self-contained performances on social media in addition to, or other than YouTube.
One example is Shawn Mendes. In 2013, when he was 15, Shawn Mendes began posting cover videos on Vine and picked up millions of views. The next year he was signed to Island Records and became the youngest artist to debut in the Top 25 with a song on the Billboard Hot 100.
Part II. Legal & Business Issues.
1. Cover Videos
It is legally necessary to get a license from the owner of the song before making a cover video. However, YouTube has developed a system Content ID that deals with this issue. The system recognizes the identity of the cover song and then notifies the publisher. The publisher can then choose to order YouTube to take down the video, or let the video continue to play and “monetize” it. If they choose the latter, YouTube splits the advertising revenue with the publisher.
It is important to note that if the publisher chooses the second option, the artist performing the cover will not receive any of the fees generated by advertising. This, however, is to be weighed against the possibility of worldwide recognition discussed above.
Vine and Instagram do not employ Content ID. But the music publishers have not, so far, cracked down on covers on these social networks. An argument could be made that the snippets played in these services are “de minimis,” i.e., too trivial to amount to copyright infringement. It can also be argued that these brief videos are “fair use.” The argument would be that, under the doctrine of fair use, a person can use a brief excerpt of a copyrighted work if the new work is “transformative” of the original.
2. Work For Hire Production Contract
I was the Director of Business Affairs for TV & Video at Sony Music from 1991 to 2001. We produced over 250 videos each year that I worked there, and every video that Sony commissioned was a “work for hire.” Under the copyright law, a work for hire is defined as follows:
(1) a work prepared by an employee within the scope of his or her employment; or
(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.
In the case of works made for hire, “the employer or other person for whom the work was prepared is considered the author …[and] owns all of the rights comprised in the copyright.”
Recently I worked with a small book publishing company that wished to produce a series of music videos to promote the new edition on one of its religious text books. The videos will feature songs by 12 different Christian rock acts. The agreement that we used to commission the videos was basically the same as Sony’s work for hire agreement. I recommend to my artist clients the same business format for the production of their music videos. Re-published below is sample work for hire contract for producing a music video.
If you are either a new artist or a small label, and you wish to create a music video, in addition to using a work for hire agreement, you should also make sure that you will not have legal problems associated later on with any person or location depicted in your video. Although you should always have every side artist, model, dancer or actor in your video sign a release, some judgment is required when determining whether to secure a location release.
Personal Releases: If a label is commissioning a video, the artist’s appearance in the video will generally be covered by the recording agreement between the artist and the label, which usually includes a provision specifically addressing music videos and giving the label the right to use the video for any promotional or commercial purpose.
If an indie artist is appearing in a video, obviously she will not need a release for her own performance. But whether the commissioning party is a label or an artist, they will want to have any other person appearing or performing in the video sign a personal release giving the label or the artist, as the case may be, the right to use the video, including that person’s appearance and/or performance in all media.
Usually, the production company will handle this responsibility. An example of a personal release is included below. Personal releases do not vary very much, although some contain more legalese than others. The basic point of any personal release, however, is that the person signing the release grants the artist or label all rights to use their appearance and/or performance in the video.
Note that the person signing such a release may have recorded their audio performance as a background vocalist or musician. A separate contract usually covers that audio recording, but the release contained below would cover that audio performance as well. Also note that the release usually does not include financial remuneration, but if a musician, dancer or actor contributed a performance in the underlying audio track, there may be a separate agreement in which that person is compensated.
A cautionary tale about failing to secure proper releases: The producer of a video for an artist at a major record label used a picture of an old girlfriend from her Facebook profile in a spilt second of a still titled “Missing Persons” in a video featuring the artist singing about a romantic break-up. The ex-girlfriend noticed and was not pleased. She retained a lawyer who was able to negotiate a significant settlement.
Crowds and Audiences: If you are shooting in a public place, releases should be given to anyone wandering into the scene if they are recognizable. If they don’t want to sign the release, you should avoid using that footage. If you are shooting in front of a live audience you can use a sign at the entrance to the performance area informing the audience that, by entering, they consent to appearing in the video. The sign should be large enough and displayed in a place prominent enough that anyone entering will notice. However, if a person from the audience is featured, or especially if they appear on stage, they should sign a personal release.
Location Release: The location release at the end of this article is for a venue that agrees to let you shoot your video at their location without a fee. It is particularly useful if there is a sign or logo that people would recognize. The release will make it clear that no consideration was expected for the use of the location.
Of course, sometimes a location, such as a restaurant or bar, will require a fee. In that case, the amount to be paid can be inserted in the release.
Public Places: Generally, if public venues and landmarks such as the Empire State Building appear in the video, you do not need a release if the location is incidental to the action in the video. But if, for instance, you are shooting in front of a well-known place such as Nathan’s hotdog restaurant in Coney Island, and their name appears prominently in the video, it would be wise to have the manager sign a location release.
The use of a trademark in a music video is generally protected by the First Amendment, but not always.
Likelihood of Confusion Test: The limited purpose of trademark protection set forth in the Lanham Trademark Act (15 U.S.C. § 1051 et. seq.) is to avoid confusion in the marketplace by allowing a trademark owner to prevent others from duping consumers into buying a product or using a service they mistakenly believe is sponsored by the trademark owner. Trademark law aims to protect trademark owners from a false perception that they are associated with or endorse a product or service.
Generally, to assess whether a defendant has infringed upon a plaintiff’s trademark, the courts apply a “likelihood of confusion” test that asks whether use of the plaintiff’s trademark by the defendant is likely to cause confusion or mistake, or to deceive as to the affiliation, connection, or association of plaintiff’s brand with defendant’s product or service.
Applying these principals to music videos, the bottom line is that if a trademark is used in such a way that it is not likely to confuse a viewer into thinking that the brand sponsored the video, the producer has a First Amendment right to use the mark. The classic example is a rapper wearing a baseball cap or t-shirt. Just because the singer may be wearing a Yankees cap or Baltimore Orioles t-shirt doesn’t mean that a reasonable person would think that the Yankees or Orioles sponsored or produced the video.
On the other hand, where a trademark is prominently featured, it may be reasonable to think that a brand is sponsoring the video. For instance, a number of brands are featured in the video for “Telephone” featuring Beyoncé and Lady Gaga. But in that case, the brands were actually sponsoring the video by paying for product placement. In fact, these days, many indie artists use brands to help pay for or at least defray the costs of their videos. But if you have not received approval or received a sponsorship from a brand, it is important not to lead your viewers to believe that you have by drawing too much attention to the brand in your video.
Product Disparagement: Also called product defamation, trade libel, or slander of goods, product disparagement is any statement about a brand that is false and likely to adversely affect its profits. Product disparagement includes negative statements about a product or service, false comparisons of competing consumer products or services, and statements harming the reputation of an artist.
Applying these principals to a music video, it is important to note that showing a brand’s name or logo in a negative context could prompt a demand that the video be changed or not shown at all. Consider this real world example: a record label made a video in the early 90s, when MTV was still playing videos, of a toy train running off the track and smashing into small models of people made of clay. During the video, close-ups of the artist as the conductor of the wayward train would appear. The video was lighthearted, and no one would think that the artist/conductor was actually running over real people. However, the name of the well-known U.S. railroad appeared on the toy train, and they were less than amused. In fact, they sent a letter to MTV demanding that they stop playing the video.
The label agreed to take the name off the toy train by blurring it, but the railroad still insisted that the video be banned because the color of the toy train — a particular shade of yellow — was the same color as its actual trains. The label reacted by changing the entire color of the video to sepia which made the toy trains a different shade of yellow. Yet the railroad still had a problem because the cars were still yellow.
The label defiantly re-released the video. But the railroad company initiated a lawsuit against the label and was able to persuade a federal judge to permanently enjoin the further exhibition of the video on MTV and any other outlet. Later, the label settled the suit by paying damages to the railroad in addition to agreeing to never using the video for any purpose again.
5. Artwork and Other Copyrighted Works
Best practice is to avoid using material protected by copyright. This will save you a lot of headaches, and possibly money. The case of Ringgold v. Black Entertainment Television is an important case in this regard. In the late 90’s, Faith Ringgold, a successful contemporary artist, sued BET for airing an episode of a television series called ROC in which a poster containing her artwork appeared. In the scene, at least a portion of the poster was shown a total of nine times.
In some of those instances, the poster was at the center of the screen, although nothing in the dialogue, action, or camera work particularly called the viewer’s attention to the poster. The nine sequences in which a portion of the poster was visible ranged in duration from a little more than a second to four seconds. The aggregate duration of all nine sequences was approximately 27 seconds.
The case was decided by a federal appeals court in New York. The court found BET liable, rejecting the de minimis defense raised by BET. As already noted in the section on “Cover Videos” above, if the amount of a work copied is so trivial as to fall below the quantitative threshold of substantial similarity, the copying is de minimis and does not constitute copyright infringement. But the court found that in addition to its appearance in the scene, there was also a qualitative connection between the poster and the show. The poster included a painting depicting a Sunday school picnic held by the Freedom Baptist Church in Atlanta, Georgia in 1909, and was intended to convey “aspects of the African-American experience in the early 1900s.” ROC was a television sitcom series about a middle-class African-American family living in Baltimore, and the scene in question was of a gathering in a church hall with a minister.
In contrast to Ringgold, the case of Sandoval vs. New Line Cinema Corp stands for the proposition that use of copyrighted artwork in the background of a scene may be de minimis. In Sandoval, the same court that decided the Ringgold case, found that the use of the plaintiff’s copyrighted photographs in the motion picture Seven was de minimis and therefore not actionable. The photographs appeared in the film for a total of 35.6 seconds but they were always in the background and were never in focus. The court found that the “photographs as used in the movie [were] not displayed with sufficient detail for the average lay observer to identify even the subject matter of the photographs, much less the style used in creating them.”
The court distinguished the facts from Ringgold because there was no substantive connection between the appearance of the photos and the subject matter of the scene.
The agreement below contemplates that an artist is hiring a production company to produce a promo video. The same form of agreement may be used by a record company. An artist may consider forming a corporate entity (i.e., C corporation, Subchapter S or LLC) in order to avoid any personal liability in regard to any agreement including a video production agreement. In addition, an Artist would be wise to consult with an accountant or attorney about forming an LLC or S corporation for tax purposes including eligibility to deduct video expenses from their personal income.
This article and other articles in this series should be used as a guide to understanding the law, but not as a substitute for the advice of qualified counsel. This series of articles and the forms included in them have been created for informational purposes only, and do not constitute legal advice. If you’re going to be making any significant legal decisions, you should consult an attorney.
Steven R. Gordon, Esq., ([email protected], www.stevegordonlaw.com) is an entertainment attorney specializing in music, television, film and video. His clients include artists, songwriters, producers, managers, indie labels and music publishers as well as TV and film producers and digital music entrepreneurs. He also provides music and sample clearance services for producers of any kind of project involving music.
The author gratefully acknowledges the assistance of Ryanne Perio, Esq. in the preparation of this article. Ryanne is a litigation associate at the WilmerHale law firm. He would also like to thank his intern Jena Terlip, 2L at Benjamin N. Cardozo School of Law, for her research and editing assistance.