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I am an singer/songwriter and agreed to do a music video with a director/producer. He is now refusing to give me the video.

Silver Spring, MD |

We had no contract and I didn't pay him to shoot the video, however, I funded the entire video shoot, wrote the script, and own copywriting of the song. Before we started shooting we agreed that the video would be used for promoting each of our careers in any way possible. He finally finished the video (4 months), but is refusing to get it to me unless I sign an agreement releasing all of my rights.

Attorney Answers 5

Posted

So, the take-home is always get all agreements in writing, b/c people forget quickly what they agreed.

So, if anyone else can testify first hand what you two agreed then you can point out to him what he agreed an that actually you did have contract, an oral one, and it is enforceable because it was to be completed within a year. If you wrote the script of the video and the song then you have copyrights on both, and can sue him for infringement if he uses the video; tell him that. Alas, you cannot actually sue until and unless you register these copyrights, and after you apply for registration it takes 10 or 11 months, although it is retroactive. If you sang the song you also have a performance copyright.

The question is whether you want to settle on some basis that saves you the cost and risk of suing, or just sue. Up to you.

Licensed in Maryland with offices in Maryland and Oregon. Information here is general, does not create a lawyer-client relationship, and is not a substitute for consulting with an experienced attorney on the specifics of your situation.

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Marc Jacobson

Marc Jacobson

Posted

But ownership of the video, in the absence of a writing to the effect that it is a work made for hire under section 101 of the copyright act, belongs to the videographer, not withstanding the oral agreement.

James Juo

James Juo

Posted

Even so, the video could be considered a derivative work, so the videographer could be an infringer. Also, assuming there is an oral agreement, the artist would have a license to use the video as a promotional tool.

Posted

I agree with Attorney Marcus' comments. I would add that the other party might have already filed for copyright with false statements, so you do need to submit what you have created for copyright protection as soon as possible. If there are two applications of copyright for the same material, then you are going to be involved with litigation on this point, along with the other issues. So one of your first steps is to register your copyrights. You would do well to hire an attorney who believes in your case and is willing to work with you in pursuing your rights. If you do not have money for an attorney to represent you, then perhaps you can pay for a consultation or two for advice as you go along with your case. Whatever you do, do not sign away all of your rights. Keep your rights. Seek what is fair. Reach an agreement based on what you both originally agreed, but because memories are frail, you might have to compromise on some of the issues. Next time, be sure to get your agreement totally in writing before you start, and when changes to the agreement occur, then be sure to draft an addendum to the contract, sign and date it, and each party gets a copy. If the subject matter is particularly valuable, then you should have the agreement notarized to make sure your signatures can be more credible in a court of law. Make sure that two documents are notarized, because notaries use an impression for the seal which cannot be copied by printers, and each of you should have a bonafide, provable notarized document.

This answer is designed to provide general information only, does not constitute legal advice and does not establish an attorney/client relationship. I am an attorney licensed in Maryland and California. A consultation and retainer will be required if you would like to obtain my representation. Office: (410) 381-1656. David Mahood, Esq.

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Marc Jacobson

Marc Jacobson

Posted

Please see my answer below. I think the fundamental copyright issues here need to be addressed, and they are different than those which apply in general contract law.

Posted

What I wanted to add to the points already made, is that it is very possible that you two have a joint ownership of the copyright of the video because it sounds like you both contributed substantive, copyright-able elements to it. Absent an agreement to the contrary, even if you contributed most if not all of the creative elements in the video, you would own the copyrights 50/50. Joint copyright ownership gives you both the right to register (of course, you would need to disclose this work has more than one author in the registration for it to be valid) and exploit the work without the permission of the other joint owner, however, you owe each other royalties for revenue you derive from its exploitation. You will also need to consider what other people were involved in the creative process of getting the video shot because they too may want to claim joint copyright ownership in it.

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Marc Jacobson

Marc Jacobson

Posted

This is an interesting answer, and it may be a joint work. But the fact is, even a joint work will require a synchronization license. A joint work requires that both parties intend that the work be owned jointly, and the parties intend it to be a joint work. I don't think we can find that here, since to me, anyway, it seems Singer/Songwriter intended to own the work outright, even paying for it all.

Gergana Hristova Miteva

Gergana Hristova Miteva

Posted

You make a valid point, and without getting into too much legal hair splitting, my understanding of the legal standard of a joint copyright ownership is that it is the default in the absence of an agreement as long as their intent to is to combine their efforts into creating one inseparable work which is comprised of interdependent parts. Under this definition, the parties' intent to create a joint work or not does not come into play. As you correctly point out, a music video is comprised by elements which can independently stand on their own as creative works, however, the question again is the intent of the parties - if all parts of the video were created simultaneously, this points to intent to create one interdependent work, and so on. For the purposes of the questioner, the take away is that the copyright ownership of the video is not straightforward and he needs to either come to an agreement with the other party or hire a lawyer.

Posted

I think the answer to this question is a bit more complex than my colleagues suggest. First, in the absence of a writing, signed in advance of the creation of the video, the copyright law presumes the director producer owns the copyright in the video. Frequently these work for hire agreements are signed after the fact, as of the date they should have been done.
Second, the director producer can do nothing with the video without the singer/songwriter's permission, in the form of a synchronization license of the underlying musical composition. This license grants the owner of the video the right to use the composition in timed relation to the visual images. Frequently a non-exclusive grant, the failure to use this renders the use of the video impossible, because the making of a copy or a broadcast or other distribution of the musical composition is an exclusive right under copyright, owned by the singer/songwriter, as the owner of the composition (or her publisher, if any).
Third, if an existing recording was used in the video, the owner of that copyright (SR) would have to grant a "master use license" to the director/producer. If the recording did not exist before the video was created, and the recording was made for the video, at the moment, its my view that the director/producer owns that recording. And if the song has not been commercially released, and is not generaly available to the public, the director cannot release that song on a record. If it is generally available, another recording can be released, subject to the compulsory licensing scheme of section 115 of the copyright act.

Its a bit of a standoff. Director owns the video, but in all events, can't use it without Singer's consent.

Been here, done this many times.

Get the deal signed up front!

This post does not create an attorney-client relationship between my firm and the asker. In all events, the asker is well advised to secure advice from an attorney with experience in the area covered by the question asked. This answer is posted for general purposes only.

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Posted

Interesting stalemate, it seems. If you want the video, I think you have to work a deal releasing some rights. I think your best approach is to get a high profile Entertainment lawyer on your side to negotiate this and see if this is a mere bluff by the videographer or if he is well advised. If he is well advised, you will need to let him use the video for you to get to use the video, but "release all rights", that you should not have to do.

I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is at your sole risk. This is done without compensation as a free public service. I am licensed in IL, MO, TX and I am a Reg. Pat. Atty. so advice in any other jurisdiction is strictly general advice and should be confirmed with an attorney licensed in that jurisdiction.

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Bruce E. Burdick

Bruce E. Burdick

Posted

If the videographer is in NY, Attorney Marc Jacobsen or Maurice Ross would be a good choice. If the videographer is in LA, Attorney Pamela Koslyn would be my choice for you. If somewhere else, call one of those 3 and get a referral.

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