Before You Shoot Music Videos, Read This Important Legal Guide

The Evolution of Music Videos

Ever since the first motion pictures, music videos have existed — though not as we know them!  Originally played with a piano over silent film, music videos began to take shape with the release of The Jazz Singer, a 1927 movie musical. These musicals evolved recording techniques until the mid-1960s, when bands like the Beatles and the Rolling Stones began releasing promotional videos for their songs.

In 1975, the first traditional music video was made: Queen’s “Bohemian Rhapsody”. Four years later, the first nationwide video music program Video Concert Hall launched.  Three years after that was the birth of MTV.

MTV created a new wave of music videos, encouraging labels to send videos as promotional tools for artists.  This brought massive success to pop and rock musicians like Aerosmith, Madonna, Michael Jackson, and the Police.

By the 90s, MTV experienced a sharp downfall.  The novelty of music videos wore off and people demanded more, so MTV gave them Beavis and Butt-Head and, later, Jersey Shore.  Music videos still aired occasionally, but only during odd hours or within specialty shows.

MTV’s dominance was replaced by this generation’s equivalent: YouTube.  Debuting in 2005, it didn’t take long before channels like Vevo began to release official music videos on the site.  Now, rather than waiting for your favorite music video to show on MTV, you could simply search and enjoy.

Legal & Business Issues

Cover Videos 

In order to post a cover video, you legally need to get a license.  Luckily, YouTube has developed their own system for cover artists!

YouTube’s system will recognize a video as a cover and notify the publisher.  This publisher will either take monetization or demand that the poster take the video down . This monetization splits the payment between YouTube and the publisher.  Each of these are weighed against the possibility of worldwide recognition.

Publishers have not yet cracked down on other social media sites (i.e. Instagram).  This is partially due to the length of the clips, as they’re too small to amount to copyright infringement (known as “de minimis”).  It can also be argued that these videos are “fair use,” because the brief excerpt is “transformative” of the original.

Work for Hire Contract

In work for hire contacts, the employer  is considered the author and owns all rights to the music created.  Many big companies, like Sony Music Entertainment, will use these contracts to commission their music videos.

Releases

Release contracts are necessary for music videos.  They ensure that anyone signing acknowledges that they have no rights to their or their location’s appearance in the video.

Here are four types of releases.

• Personal: Anyone featured in a video must sign this release. Here, the person signing the release grants the artist or label all rights to use them in the video.
• Crowds and Audiences: If you are performing in a public place, anyone recognizable should receive a release. If shooting an audience, you can display a large sign notifying anyone who enters that they have consented to appearance. However, if the video features a person from the audience, that person should sign a personal release.
• Location: This is for venues that agree to let you shoot. It is useful with noticeable signs at the venue. The release can write in fees.
• Public Places: Public venues do not need releases if they’re not prominent but if they are, the manager should sign the release.

Trademarks

The First Amendment generally protects the use of a trademark in a music video, but not always.

To assess whether a defendant has infringed upon a plaintiff’s trademark, the courts apply a Likelihood of Confusion Test. This test asks whether use of the trademark by the defendant is likely to cause confusion or mistake, or to associate the plaintiff’s brand with the defendant’s product.

Applying this to music videos, the bottom line is that if a trademark is used in a way that is not likely to confuse a viewer into thinking that the brand sponsored the video, the producer has a First Amendment right to use it.  The classic example is a rapper wearing a baseball cap or t-shirt.  Just because the singer may be wearing a Yankees cap or t-shirt doesn’t mean that someone would think that the Yankees sponsored or produced the video.

On the other hand, when a trademark is prominently featured, it is reasonable to think the brand is sponsoring the video.  For instance, a number of brands are featured in the video for “Telephone” by Beyoncé and Lady Gaga.  In this case, the brands were actually sponsoring the video by paying for product placement.  These days, many indie artists use brands to help fund their videos.

If you have not received approval from a brand, it’s important not to misrepresent a partnership.  Viewers can be misled if too much attention is drawn to the brand itself.

Product Disparagement

Product disparagement is any statement about a brand that is false and likely to hurt the company’s profits.  This includes negative statements about a product, false comparisons to competitors, and statements harming an artist’s reputation.  It is also known as product defamation, trade libel, or slander of goods.

Applying this to a music video, showing a brand’s name or logo negatively could prompt a demand to change or remove the video.  In the 90s, a music video featuring a toy train running off the track and smashing small clay people aired on MTV.  The toy train featured the name of a well-known U.S. railroad, who were less than happy.  In fact, they sent a letter to MTV demanding that they stop playing the video.

The label agreed to blur the name but the railroad insisted that the color of the train — a particular shade of yellow — was the same color as its actual trains.  They changed the entire video to sepia to make the trains a different shade of yellow, but this still upset the railroad.

The label finally took down the video in a lawsuit and paid all damages to the railroad.

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.

Ringgold v. Black Entertainment Television is an important case for copyright.  In the late 90s, Faith Ringgold, a successful contemporary artist, sued BET for featuring her artwork in a show.  Although the show did not discuss the work, the poster was on the scene for a total of 27 seconds.  The federal appeals court in New York found BET liable.

BET raised the de minimis defense. Recall that this is when an amount of work copied is so small that it is below substantial similarity.  However, the court found that there was a qualitative connection between the poster and the show.  The poster depicted a Sunday school picnic held by the Freedom Baptist Church in Atlanta, Georgia in 1909.  It intended to convey “aspects of the African-American experience in the early 1900s.”  The series, ROC, was a sitcom about a middle-class African-American family in Baltimore and the scene in question was of a gathering in a church hall.

Unlike Ringgold, the case of Sandoval v. New Line Cinema Corp stands for the use of copyrighted artwork in the background of a scene as de minimis.  Sandoval sued New Line Cinema Corp at the same court as Ringgold for using his photographs in the film Seven for 35.6 seconds.  The images were always in the background and out of focus.  The court ruled this to be de minimis and therefore acceptable.

The court also 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.”

Ringgold’s image was recognizable and related, Sandoval’s images were not.

Agreements

The agreement below is for an artist hiring a production company to produce a promo video.  A record company may use the same form of agreement.  An artist may consider forming a corporate entity (i.e., C-Corporation Subchapter S, or LLC) in order to avoid any personal liability.

In addition, an artist would be wise to consult with an accountant or attorney about forming an LLC or S Corporation for tax purposes.  That includes eligibility to deduct video expenses from their personal income.

Music Video Production Agreement by Digital Music News

Disclaimer.

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.

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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.