Thursday, February 28, 2013
Can We Use Video of Deceased Musician?
Unrealism. If the videographer is being unrealistic and won't agree to the terms described above, he should be made aware that he will be unable to distribute, stream, reproduce or otherwise exploit the video unless he obtains permission from whoever owns the rights to the musical compositions. That's because the video contains (1) an audio-visual copyright reflecting the videographer's authorship, and (2) a copyright in the original musical compositions, in this case owned by the musician's estate. Based on this second copyright -- as well as any claims that the musician's estate may have regarding right of publicity or similar claims -- the videographer can not duplicate, stream, or reproduce the video or audio without the permission of the respective copyright owners.In other words, he is not the sole copyright claimant to the video.
What about dispute resolution? You can also suggest that the parties proceed to mediation or arbitration at California Lawyers for the Arts. If that fails and you're certain that the videographer will never sue, you can always consider the risky strategy of distributing the disks without permission.
The music CD. Typically music CDs are considered to be "sound recordings" which copyright law defines as “works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work.” Since your audio CD is derived from sounds accompanying a motion picture, we're not sure what to make of its status. We believe that it would either be considered a derivative work (derived from the video) or would be analogous to a sound recording. If it were a typical sound recording it would be jointly owned by the musician's estate, any other musicians who performed on the work, and possibly the videographer for fixing the sounds. The trouble with the videographer making claims to the sound recording only is that we're not sure that simply placing a microphone on stage, or hooking a direct feed from the P.A. to video camera constitutes sufficient originality to qualify for sound recording authorship. We doubt it, but we don't have enough information to be certain.