illegal use of my music in trailer

[spiderman]

Maybe this should be in the Music Biz section but I think this might get more response here...

I've decided that my music has been used illegally and wanted your opinions. It's a bit of a sticky situation so here is some back story.

I've composed for this director before. We were friends and the first film was successful. The second film (funded) is here and bad things are happening. My contract was sent last Winter but never signed or retainer paid... forgivable. A first trailer was cut last Spring and I was paid for that. Suddenly a second promo cut is needed for a conference presentation and I'm told to score it by x-date. Not asked... not offered payment... No budget available but the feature contract and retainer would be sent if I could "help." My biggest mistake... I did it for the cause and the retainer.

I was asked for Philip Glass-like tension. It goes out. Rewrite requested. I denied. Tensions flared... feature gig was threated.... I caved and produced an excellent rewrite.... more industrial, after-all the temp track as Manson.

Sent it off and the director hacked it. Moved sections around with bad editing and taste... added weird guitar sample in bad place.... Further more... is now using it all over YouTube and his website.

Never paid for any production or usage. Never asked permission to edit or use on website. No contracts, memos, or emails.

I'm an idiot for getting in this situation... I still wonder...
Am I right? Is this illegal usage of my music?
Should I push back and ask music to be removed from site regardless of outcome? (the feature doesn't pay THAT much anyway)
What should I learn from this?

[paul999]

Depending on where you are the laws are different. Dependent on legal fees vs reparations it could be hard to make it worth your while. In Canada we have small claims court were you don't need representation for up to $2500(I think) It would take a day of your time and $40 to file $30 for a title search and your in business.

In Canada contract law doesn't require a signed document. The fact that you had a document with terms on it and then both did behaviors that showed the contract was in existence is enough. For example. You agreed on a price. You created and recorded the score. He paid. The fact that you didn't make it clear that you were to be paid for the second is a problem. You may be able to claim some right to royalties.

In the future at least make an invoice with all terms and payment schedule on it.

Hope this helps.

BTW Talk to an attorney.

[spiderman]

Originally Posted by paul999

In Canada contract law doesn't require a signed document. The fact that you had a document with terms on it and then both did behaviors that showed the contract was in existence is enough. For example. You agreed on a price. You created and recorded the score. He paid. The fact that you didn't make it clear that you were to be paid for the second is a problem.

To be clear... Our contract is for a feature film. The first trailer was a separate gig and was completed. A second trailer (completely different cut) is also a separate gig. I gave permission to use the first trailer verbally and cashed the check. That was last Spring.

The second trailer is now. I was told it was for a conference. It's now all over the web. No papers were signed. No payment arranged. No verbal consent to edit or use my music in this way.

[paul999]

Originally Posted by spiderman

The second trailer is now. I was told it was for a conference. It's now all over the web. No papers were signed. No payment arranged. No verbal consent to edit or use my music in this way.

Do you have any documentation or anyone that heard the other party directly say that it was for the conference only? This could be a copy right infringement of him stealing samples of your work. I definitely would be seeking legal advise.

[spiderman]

Originally Posted by paul999

Do you have any documentation or anyone that heard the other party directly say that it was for the conference only? This could be a copy right infringement of him stealing samples of your work. I definitely would be seeking legal advise.

Legal will be explored but I prefer to hear some informal thoughts before seeking the advice of someone else who stands to profit from this. You're right and eventually I might... but my current lawyer isn't a music specialist and I'm not certain I should pursue this... it would endanger the gig and for what? Pride?... Principal?...

I'm in nfo gathering mode... Thoughts?

[TRANQUILO]

copyright anything you create before you send it off. That way you are shure to retain ownership of the songs and get your proper monies owed.
I belong to sesac and always upload and copyright my music before it gets released. Its easy. Look into ASCAP, BMI and SESAC foe details on how to join

[spiderman]

I'm already with ASCAP and my understanding is that copyright exists on fixation of creation to media, in this case digital file. Sending the material to the US Copyright Office is only a registration of the copyright. Likewise, ASCAP and other PROs, only collect performance royalties. They don't enforce copyright laws, measure music performances from a personal/business websites, or factor into rights violations.

(Just my understanding... I'm sure there is some other angle... If I'm wrong, let me know)

[piano]

Directors can be little shits .... na BIG shits.

Rewrites to the bitter end. You were right to refuse a rewrite without payment because even though you thought it was spectacular he would have asked for many more.

I'd call him and POLITELY tell him it would appropriate for him to compensate you $XXXX for using it on several projects outside the original intent.

Most likely he will promise you his next gig..... get it in writing with payment if a gig is not delivered in 3 months. Post dated check is your best method of collecting in court.

[RedTuxedo]

Originally Posted by spiderman

I'm already with ASCAP and my understanding is that copyright exists on fixation of creation to media, in this case digital file. Sending the material to the US Copyright Office is only a registration of the copyright. Likewise, ASCAP and other PROs, only collect performance royalties. They don't enforce copyright laws, measure music performances from a personal/business websites, or factor into rights violations.

(Just my understanding... I'm sure there is some other angle... If I'm wrong, let me know)

That is all true, but REGISTERING that copyright with Library of Congress and also ASCAP would make it very difficult for this director to steal your song without owing you anything. Get that song registered and stop talking about it till that is done. Hopefully the director didn't beat you to it. There is something about dramatic works as well. I'm not a publishing expert, just know enough to stay out of trouble.

[spiderman]

Aye-Aye-Captain. I did my title registration with ASCAP last night and will file with LOC today. Now what?

I guess part of my OP was to day, "this guy HAS already violated my rights and stolen my music." What's the smart play?

I'd call him and POLITELY tell him it would appropriate for him to compensate you $XXXX for using it on several projects outside the original intent.

Most likely he will promise you his next gig..... get it in writing with payment if a gig is not delivered in 3 months. Post dated check is your best method of collecting in court.

I like this recommendation and think it might be the only solution that would destroy the current project.

Can anyone else share any stories about similar situations?

[georgia]

contact Youtube and tell them they are hosting the trailer with copyrighted material and they (youtube) are in violation. More times than not they will remove the material. They don't want this kind of problem. I have been successful with Youtube, facebook, myspace, etc on a similar issue with graphics and video work that was unpaid for and not authorized. Include in your email to them any Registration/copyright numbers... Make sure you let them know that you intend to pursue this matter if they do not remove the offending material within 5 business days.

cheers
geo

[piano]

Originally Posted by spiderman

Aye-Aye-Captain. I did my title registration with ASCAP last night and will file with LOC today. Now what?

I guess part of my OP was to day, "this guy HAS already violated my rights and stolen my music." What's the smart play?



I like this recommendation and think it might be the only solution that would destroy the current project.

Can anyone else share any stories about similar situations?

Collecting money in court is a difficult thing. Been there.

It costs far more money to go to court than it does to use a collection agency - hence why there are so many collection agencies.

Keep is civil for now. Don't threaten court or the like. Be firm and clear about what you want. Actually write out a script for yourself anticipating his answers. This will take some time - about a day or two. But it sure beats losing money on a lawyer. Basically, only use a lawyer if you want blood - because it will cost you more than you will get.

First solution:

1. Get him to give you money - problem solved!
2. He has no money or won't do it --- get him to give you work (it is KEY you are friendly but firm with him. Keep good feelings inside while you talk to him - it shows!)
As a guarantee you will get work in three months have him write a check which you may cash under no work given condition. A bad check is very easy to get satisfaction in court.

3. All that fails? Well he is a dick and he knowingly stole your work. Say nothing to him and take him to small claims court. He will get the pink slip in the mail and try and resolve it before court - usually a day or week before.

4. Still no go - then prepare your case... no lawyer and see how it goes. Still satisfying if you get no money.

[Rick Sanchez]

If you sent them music prior to having an existing copywrite and with only a verbal contract, it's going to be difficult to receive compensation at this point.

If the trailer is only playing on YouTube and not paid advertisement on the web, broadcast on network or cable, the compensation would be meager at best.

I would send a nice letter to the director/producer of the film/trailer letting them know they are using copywritten material without permission along with an invoice for licensing the cue(s) being VERY specific as to how that license applies (web only, broadcast and web, presentation, regional, national, global, etc.) Also let them know you will be notifying YouTube or any other host to have the trailer removed for copywrite infringement should they not respond.

Or...let it slide and take it as a lesson learned, read some books or take a class on licensing agreements and be more careful in the future.

[spiderman]

Originally Posted by Rick Sanchez

Or...let it slide and take it as a lesson learned, read some books or take a class on licensing agreements and be more careful in the future.

That's where I'm leaning and I've already learned some concrete stuff but I'm still trying to resolve some gray areas. (Hence this discussion) Here are some remaining questions...

Are verbals worthless in this business? Should I require everyone to document and sign everything in triplicate?

Does a copyright exist on creation of intellectual property or on registration? I've read on creation. Other than official time/date stamp evidence of my property, what benefit would registering bring to this situation?

[Rick Sanchez]

Originally Posted by spiderman

Are verbals worthless in this business? Should I require everyone to document and sign everything in triplicate?

Does a copyright exist on creation of intellectual property or on registration? I've read on creation. Other than official time/date stamp evidence of my property, what benefit would registering bring to this situation?

Verbals are not worthless in this business, but unless you have worked with someone in the past, know them well or they come highly recommended as trustworthy, honest and ethical, it's good to have some sort of contract, especially for ownership or licensing issues. Work for hire is another issue altogether. There are boilerplate licensing proformas available online for a very small fee and if that is your business, well worth exploring. Music libraries often let you download tracks to "try out" for free, but if it's used in a final product, the producer must pay the licensing fee. As far as your work being edited and altered beyond recognition, that is something every composer/songwriter has to accept when it's being used in film, television or advertising. Deep breath on that one.

The copyright creation question is one for an experienced attorney. I've heard both things but it's probably more difficult to prove creation date without registration as even digital file creation dates can be modified fairly easily.

[Henchman]

I would let your "friend" know, you can't do anything else until the contract is signed for the funded feature.
What I'm kinda smelling here, is you did a great job for free on the first feature. Doing him a favor.
Now there's money, he's holding off, getting you do do stuff for free, but looking at other composers with a bigger track record, thinking it will be better for his film, even though he's most likely wrong.
That's why he hasn't signed the contract yet.

[piano]

Originally Posted by spiderman

Are verbals worthless in this business? Should I require everyone to document and sign everything in triplicate?

Does a copyright exist on creation of intellectual property or on registration? I've read on creation. Other than official time/date stamp evidence of my property, what benefit would registering bring to this situation?

Do what I said and THEN worry about this.

All documentation does is provide a way of establishing proof.

First find out if you are dealing with an ethical person who will compensate you for the use of your work. Maybe he made a mistake. Maybe he thought you would be OK with it. Contact him and find out first.

Your questions above will cost some some money with a lawyer. Frankly ASCAP should be able to provide you the answers.

[Storyville]

Originally Posted by paul999

Do you have any documentation or anyone that heard the other party directly say that it was for the conference only? This could be a copy right infringement of him stealing samples of your work. I definitely would be seeking legal advise.

In America, the production company would have to provide documentation that they could legally use the music. Verbal agreements generally don't hold up in these cases.

OP - if there's no contract stating they can use your music, and you can prove it is in fact your music, you should have little problem getting a proper settlement.

[spiderman]

Just for clarity's sake... The feature contract was signed and the first check cashed while making the "stolen" trailer. Despite feeling shorted on the feature contract and being told to work for free, I've calmed down and have no intention of raking the guy for this.... it's really just become a learning situation for me and I appreciate your comments.

I do think that I'll explain to him what I consider to be legal and ethical violations. I'll include in the explanation a fair-priced invoice for the actual usage, he might pay some or all of the fees but I'm not going nuclear.

[RedTuxedo]

Originally Posted by spiderman

Just for clarity's sake... The feature contract was signed and the first check cashed while making the "stolen" trailer. Despite feeling shorted on the feature contract and being told to work for free, I've calmed down and have no intention of raking the guy for this.... it's really just become a learning situation for me and I appreciate your comments.

I do think that I'll explain to him what I consider to be legal and ethical violations. I'll include in the explanation a fair-priced invoice for the actual usage, he might pay some or all of the fees but I'm not going nuclear.

Probably the smartest way to go. Doubt there is much money in it, but sometimes the learning process offers the greatest rewards down the road. Very well thought out and also taking a step back after the fury shows wisdom.

[corky]

Well, what are you going to do though? I don't know if your particular situation is legal of not since it appears you weren't paid. But anyway, in general once someone HAS paid for your music/sounds, they can go on to hack it up and do whatever they want with it.

I was taken aback a bit this past week when I got a note that a well-know artist (using the term very loosely) had bought a copy of a CD I sell at CDBaby of famous old speeches from the turn of the 20 century. There are all kinds of people on the CD from Buffalo Bill to famous inventors and presidents. This guy won the Turner Prize a couple of years back, and if you know anything about that, then you know how questionable the art is that these jokers produce. This guy is famous for "found" art--taking bits from here and there of video and audio in public domain and mashing it together to come up with a sort of sensual collage. I hate that this kind of crap is passed off as art, and I hate that my CD will be used in this way. But... I did state that anyone is free to do whatever they want with the tracks (except to resell them) after they've bought the CD. In other words, I'm keeping everything in PD. That was a big drawing card in getting people to buy the CD. So here we are. I knew this would happen eventually.

[tomlee]

Originally Posted by corky

I was taken aback a bit this past week when I got a note that a well-know artist (using the term very loosely) had bought a copy of a CD I sell at CDBaby of famous old speeches from the turn of the 20 century. There are all kinds of people on the CD from Buffalo Bill to famous inventors and presidents. This guy won the Turner Prize a couple of years back, and if you know anything about that, then you know how questionable the art is that these jokers produce. This guy is famous for "found" art--taking bits from here and there of video and audio in public domain and mashing it together to come up with a sort of sensual collage. I hate that this kind of crap is passed off as art, and I hate that my CD will be used in this way. But... I did state that anyone is free to do whatever they want with the tracks (except to resell them) after they've bought the CD. In other words, I'm keeping everything in PD. That was a big drawing card in getting people to buy the CD. So here we are. I knew this would happen eventually.

Really quite amusing.
You rip someone apart for producing art, someone who is respected in their field - disparagingly using quotes that they make "found" art - and that "I hate that my CD will be used in this way".

At least he is using works (and other objects) to create a new work, kinda like sampling.

Whereas you are simply profiting from selling others material that is in the public domain.
And with little-to-no investment in physical production (other than the time to collect the audio).

Really?

[corky]

Really quite unamusing.

I reproduce treasured speeches, taking the time to get them as close to perfection as I can, zeroing in on pops & clicks to take them down or out by hand rather than relying on some funky program to do it poorly. I employ a number of different, and expensive, NR techniques to clean those old cylinders, some of which are barely audible when I first get them. And I EQ them to the best of my ability. In short, I take old cylinder recordings that are never in particualrly good shape and make them into something worth listening to. And then I sell them at an incredibly reasonable price, even allowing downloads of individual tracks instead of forcing someone to buy an entire CD. And to top it off, I could claim copyright on these and tell people that if they want to use these speeches they should go out and beat the bushes for 40 years trying to find copies of extremely rare material like I have and spend their own time and money digitizing and restoring them while learning some very expensive software with a very steep learning curve. But no, for a dollar they can buy any track they want and use it any way they want in movies or music or anything else. They even have the right to produce crap in the name of art with it. But don't ask me to like it or call it art.

Yeah, I'm a real beast I am.

[kubimusik]

OP:

At first glance it sounds like you're in a massively grey area regarding re. what precisely you got paid for and what rights they have to your music. So either you want to do something, then get a lawyer and have him/her explore if you even have any options. It will all depend on what's in your contract, etc. Or you let it slide.

Either way, as you suspected registering copyright makes no diff in this situation.

[ggegan]

My observations about thing type of situations:

1) Whoever has the most/best lawyers wins

2) Even if you win, you lose because they will never hire you again

3) Word spreads and then you have to justify yourself to other people who heard rumors about you

4) Sometimes you just have to bend over and take it like a man

[tomlee]

Originally Posted by corky

Really quite unamusing, and quite stupid.

I reproduce treasured speeches, taking the time to get them as close to perfection as I can, zeroing in on pops & clicks to take them down or out by hand rather than relying on some funky program to do it poorly. I employ a number of different, and expensive, NR techniques to clean those old cylinders, some of which are barely audible when I first get them. And I EQ them to the best of my ability. In short, I take old cylinder recordings that are never in particualrly good shape and make them into something worth listening to. And then I sell them at an incredibly reasonable price, even allowing downloads of individual tracks instead of forcing someone to buy an entire CD. And to top it off, I could claim copyright on these and tell people that if they want to use these speeches they should go out and beat the bushes for 40 years trying to find copies of extremely rare material like I have and spend their own time and money digitizing and restoring them while learning some very expensive software with a very steep learning curve. But no, for a dollar they can buy any track they want and use it any way they want in movies or music or anything else. They even have the right to produce crap in the name of art with it. But don't ask me to like it or call it art.

Yeah, I'm a real beast I am.

Hey corky. It is quite possible i was dismissive of your craft, and undervalued it - which ironically is quite hypocritical considering the nature of my post.

Contemporary or Conceptual Art is not your thing, I would argue that it is a difficult medium to access and understand. There is a strong sense of 'emporers new clothes' about it to those without the understanding of it's nature.

Some of it is crap (even when understood), It just irritates me when it is dismissed offhand in a somewhat ignorant way.

I apologize for dismissing your work.

[corky]

Don't sweat it. I don't mind a collage kind of thing if it works and makes a good statement, and truthfully, this particular guy I'm referring to seems like a good guy. It's not like he's making skin flicks or anything. Actually, of all the people that have won the Turner Prize, his work is among the best. But if you look into Turner Prize winners, I think even you would agree that being among the best doesn't mean much. If you recall that time Yoko Ono sat onstage in Japan back in the 60s allowing audience members to come up and cut off pieces of her clothes as a statement about women's emancipation...well the Turner Prize has stuff like that. But who knows, maybe this guy will do something nice. I hope so anyway.

[spiderman]

Don't you mean....

4.) Sometimes you just have to bend over and take it like a prostitute.

[ggegan]

Originally Posted by spiderman

Don't you mean....

I prefer to think of us as hired guns.

[musikwerks]

I feel for you... but unfortunately you have bent over and dropped your pants for this guy.... he's going to butt-surf you forever until you're prepared to call his bluff and/or lose the gig.

It's a hard thing to do. I recently 'fired' a client that refused to pay a few thousand dollars for cost overruns that were their own fault and outside the scope of our agreement. They made reference to the 'fact' that I made 'good money' out of the project so why was I going after this money now, also claimed the extras were a result of my poor management, which was totally not true. It was all extra labour and damaged gear costs that I had already paid in order to keep my crew and suppliers happy and my gear usable.

On top of that, the job in question was only a few days after a chemotherapy infusion and I was not well and they knew it, but I honoured my word and delivered for them.

Never again.

You're always going to be treated like this unless you set firm boundaries. People will take advantage wherever they can if you give them the opportunity. That's why good clients are worth far more than the invoices they pay.