Copyright Aid

Hello,

I hope someone can shed some light on my situation.

I was working with a band, (Band 1) producing video projections for their live performances and making video recordings of these to help with their promotion.

Naturally, my video projections also appear in the live video recordings so the recordings are also beneficial to my promotion.

The band split up, the founder member kept the band name and got a new line-up together (Band 1b). Everyone else formed a new band (Band 2).

Now the founder member of Band 1 has had the live performance videos removed from YouTube and Vimeo, claiming copyright infringement on my part.

I was never paid for either the video projections or making the live videos. It was a labour of love.

The sound engineers at the various venues recorded the audio that I use on the videos, this was supplied to me by the founder member.

Also. Band 2 have made all new material but still use one song that was written during the Band 1 days as they wrote it themselves and the founder member of Band 1 wasn't involved in the writing of that song.
Something he openly admitted at the time, both verbally and in writing (on a private thread on Facebook).

Band 2 paid me to make a promo video of this song. I did and we put it on our respective YouTube / Vimeo pages.

Founder member of Band 1 has since decided that he did in fact write it and, guess what? He's had it taken down from YouTube. We've filed counter-claims but it's been a month now and the videos haven't been reinstated.

Sorry it's a bit complicated. Could anyone help me understand my legal position and how to get our videos online again?

Thanks in advance

eefee

Hi again eefee,
This is somewhat complicated but not at all uncommon with bands when they split and reform. There have been several court cases involving bands like Procol Harem over who was or wasn't entitled to royalties from the song writing, and similar disputes due to changes of lineup.
Let's just try and clarify who owns what rights here. The video projections appear to have no input from the band and so you will hold copyright in that specific element (classed as a film, of which you are the producer and director), although as you were commissioned to make the projections for the band, there is an implicit licence for Band 1 to use the projections, even if you weren't paid. However Band 1 no longer exists and it would appear that there is some dispute over ownership of all the rights etc belonging to Band 1, and so it may be that while you remain the copyright owner, the implied licensees cease to exist. That means that if Band 1a were to continue using your projections as part of their performance that might infringe your copyright, since your agreement was with Band 1 - a different entity for legal purposes, I suspect.
Next comes the video you made of the performances. Since you had the permission of all the members of Band 1 at the time to film their performance, you are, again, the producer of that video and you own the copyright in it outright. Permission to include the songs (the words and music) is implicit in the permission given to make the video, since the performers include within them the writers of the songs - that applies irrespective of who within Band 1 actually wrote what. The only obligations you have towards Band 1 is to credit them as the performers and writers of the songs (their moral rights) and to provide them with fair remuneration (their economic rights) from any money you make in selling or otherwise exploiting your rights in the video, for example selling copies of the video, providing licences to TV stations such as MTV (known as broadcasting) or obtaining advertising revenue etc from Vimeo or YouTube (known as making available to the public) etc.
In order for any members of Band 1 to object to the exploitation of your copyright in the video, they would need to show that you did not have the permissions referred to (for example if you had in fact covertly videoed them at a gig without permission). They cannot invalidate your copyright as a producer by retrospectively withdrawing their permission. If they feel that you have somehow denied them the remuneration to which they are entitled, then they could start a proceedings to recover what is owed to them but that does not per se give them any rights to get your video taken down, and is a separate matter to copyright infringement which is what is effectively being alleged to Vimeo and YouTube.
You mentioned sound engineers. They will be treated as producers of the sound recordings and will own the copyright in the sound recording (a sound recording is also known as a phonogram). While Band 1 would have had an implicit licence to use the phonogram as part of the deal they had with the engineers, it is more debatable whether they also had a licence to authorise you to incorporate the phonogram into the video and much would depend on what the engineers understood to be the intended use of their recording by the band. Ideally there should have been a direct agreement between you and the sound engineers as technically they alone have the right to decide how their phonogram is exploited. However it does not sound as if you have any dispute with the engineers. The founder member (or indeed any other member of Band 1) have no say in the use of the phonogram since they are not the owners of the copyright in it. This of course might be different if the producers of the phonogram had assigned their copyright to Band 1 or to any single member, but it rather sounds as if nothing so formal occurred. An assignment would have had to be made in writing.
Once legally incorporated into your video, the sound element forms an integral part of the video.
The disputes about who actually wrote the songs is only of peripheral importance. If the founder member did actually help write the song later performed by Band 2 and he obviously had not given you permission to record the song then, technically, your video may infringe his copyright. But since you have written evidence to support the view that he did not write the song, you would probably not be liable for any damages if the matter went to court, since you had a reasonable belief that you had the permission of all the actual song writers. In any case, the founder member would need to establish his claim to share in the song writing copyright before he can approach Vimeo etc with takedown notices.
Takedown notices to services like Vimeo or Youtube are done under the US Digital Millennium Copyright Act (DMCA) and one of the stipulations for a valid takedown notice is that the person sending it has full legal rights in the material complained of. If he doesn't or cannot easily show this to be the case, and the poster issues a counter notice, then Vimeo etc should restore the video and allow the parties to resolve the matter between themselves in court or elsewhere. Regrettably because they receive so many takedown notices,services such as Vimeo just react to the first notice (which they are legally obliged to do in order to avoid liability for secondary infringement) but fail to restore things with the same diligence, because they are not commercially or legally obliged to host every video which is submitted. However perseverance on your part may work in getting the video put back up.
So, quite a long reply, but since the situation is complicated, this is necessary to try and cover all the issues. And this example shows just how important it is to get arrangements like this tied down in written agreements at the time, so as to avoid petty but acrimonious disputes later. If you intend to do more of this sort of work for bands, look into getting a standard agreement (something like this) for bands or other clients to sign. Lots more information on what filmmakers need to know about obtaining clearances can be found here: BBC

AndyJ, you are a legend. Thank you once again.