Can We Use Video of Deceased Musician?

Dear Rich: A musician friend recently gave a concert. (Let's call him the Musician.) He was a master of traditional folk music, so the tunes were either his distinctive arrangements of public domain music, or his original improvisations. The Musician was dying, this was his farewell concert, and he passed away about a month later. A friend of his (let's call her Ms. Go-Between) asked her friend to videotape the concert. No actual agreements were made with this fellow, and certainly nothing written. We assumed the Videographer was volunteering his services, as we all are. A group of us, friends of the Musician (including Ms. Go-Between), are actively fundraising to produce the Musician's legacy project: to bring out his unreleased recordings. Our online fundraising offers premiums for donations. When I started up this effort, Ms. Go-Between wanted to offer a DVD of the farewell concert as a premium. So we did that -- and it cannot be changed now as donors have started to claim these premiums. Ms. G-B also wants to use part of the video's audio recording on the future CDs. We're gearing up to do fulfillment of the premiums, in part using the DVD made by the Videographer, and now it gets sticky. It seems that he expects payment for each and every copy of the concert DVD we give away, Ms. G-B agreed. Videographer also claims full copyright on the DVD. It seems that at best there is a dual copyright on this video. One to the Musician's estate, as performer/creator of the material, and one to the Videographer who taped and produced the DVD -- is that right? If we pay him all or some of what he's asking, does he then fall into a work-for-hire category, and thus assign his copyright to the Musician's estate? If he does the right thing and gives it to us at cost (the original assumed agreement), does he then retain his copyright, and have some rights to the eventual music CDs, if his audio tape ends up being used in it? How much money is at stake here? If you are dealing with less than 100 orders, you might want to enlighten the videographer as to total sales of this disk (and that it is not expected to make him rich). You can agree to pay him a royalty based on the disks that are actually paid for by fans (thereby avoiding advancing funds on a speculative basis) You can also offer a lower royalty for rights to the audio recording because the videographer's claims are not as clear with that disk. Get the royalty agreement in writing and have the videographer assign all rights if possible. If the videographer won't assign copyright, get an exclusive license for all of the rights discussed above. A simple agreement describing this arrangement will be fine.
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.