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A guy filmed my act performing with another artist, can he display the footage having breached agreement(s) to share it with us?

Asked about 3 years ago - Boston, MA

I made a series of agreements with a friend, who is also a local journalist. He was to come to our shows, and shoot our band performing with another artist. He would get access to stage/backstage/green room etc, and in return would furnish us(my band), the other artist, and his label with copies of said footage, to be tagged with his journalist's company name. It was a footage for access deal, made, and repeatedly confirmed verbally between himself, and the several relevant parties, for several events, over a period of some months.

He wasn't at the shows with a press pass, and came in with our band, through my efforts, (and my coordinating with the artist, label, and venues/staff etc to get everyone's ok, and avoid him cover charges etc.)
These agreements were repeatedly confirmed in conversation, up to,during, and after the events with all of us (band/artist/label)

He never fully provided the footage, and now has demanded I pull all of my postings of what footage I did receive from him,from the internet, and remove them from my system/possession. He has posted some of it online, as an exclusive for his company.

The original material performed belonged to the artist, and in some instances myself, and my co-writer(when we'd sometimes play our original songs during the sets) the rest of the time, we backed the artist, using our (my) arrangements, of his songs.

1) Can this man claim an exclusive on footage he agreed to share? Is this possible when the right to film, wasn't obtained by him in writing, and with him having breached the series of verbal contracts, and later assurances, as to him sharing it?

2) Do I have a case, if I, alone or in combination with the other artist, decide to pursue a cease and desist notice/order/injunction on posting it, and to recover our footage, pursuant to the agreements we made in good faith, with him, which he then breached?

3)If we can't recover it easily, is it at least possible to prevent him exploiting it, not having honored the agreements that he made with us, to share it?

Thanks so much, for any advice. I don't have deep pockets, and I'm passionate about music beyond anything. I'd hate to be cheated out of what represents some of the best, and most memorable shows, of my career.

*screams* thank you!!!

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Attorney answers (1)

Daniel Nathan Ballard

Reputation Level 18

Answered about 3 years ago. Intellectual Property Law Attorney in Sacramento, CA.

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The following is not legal advice and should not be relied upon to take or refrain from taking any action.

You need to speak with an intellectual property attorney, in person, who will seek from you certain important facts that you have not provided. Low cost, and perhaps free, legal assistance can be found via the Lawyers For The Arts (go to http://www.vlama.org/ ) or the business or intellectual property law clinic at one of the many law schools in Boston. Call them.

Your dispute boils down to determining (1) who owns the copyright in the various videos and (2) what rights (if any) do other parties have in those videos.

As to the first question, it sounds as if you intended that the videos were to be "works for hire" such that you owned the physical copies of the videos and the copyright to the videos. The question that begs to be answered, however, is "in exchange for what?" Providing the videographer with "access" to the shows does not cut it regardless of how talented the band is or how fun the shows were -- being at the shows was a prerequisite to taping the shows so his being there was really a benefit to YOU, not to him. The only benefit I gather that may have gone to the videographer was the POTENTIAL that you would publish the video and therefore provide him with publicity because his company name was listed as the producer of the video. This is very dubious consideration, however. In short, I'm not at all sure that you and the videographer entered into an enforceable contract. You simply did not promise nor give him anything of value in exchange for the video or any rights to the video. Absent that exchange, the videographer may not have any duty to give you HIS videos.

The rule is that the creator of a copyrightable work owns the copyright in the work unless (1) the creator is an employee, in which case the employer owns the copyright, (2) the creator signs a "work for hire" agreement -- which only applies to eight particular types of works (audiovisual works being one of them), or (3) the creator signs an "assignment" agreement that transfers ownership of the copyright to the other party. None of these three scenarios appear to apply in your situation. Your own attorney needs to evaluate the facts more carefully but at first blush the videographer seems to have the upper hand.

As to the second question, because the video contains music (i.e., performed "musical compositions" and "sound recordings") that are each protected by their own copyrights, it becomes a quite complicated process to determine what rights all of the various involved artists -- including the videographer -- have in those videos. You'll have to sit down with an intellectual property attorney to work out those rights.

It's well worth spending a weekend learning about music law. Visit amazon.com, query "music law," and buy a few books on the subject. And then spend a few days learning about the business of your art.

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