Obtaining Content Rights for Music DVDs
Law & Finance, September 2001.
By Steve Gordon
At a time when the recording industry is suffering a decline in
in part to unauthorized downloads facilitated by the Intemet,
are gaining a measure of solace from an increase in sales
generated by another
new technology: digital video discs. Music DVDs, like VHS
live music conceits or compilations of promotional video clips.
feature more brilliant visuals and higher-quality sound, and are
of containing more content than VHS cassettes are.
Record labels can enhance sales by adding so-called "bonus"
each DVD release. Such bonus content usually consists of items
such as photos
and other images, bonus promo videos, audiovisual excerpts from TV
biographies and discographies. The inclusion of such extra
DVDs raises a host of rights clearance issues.
Photos and Other Images
Bonus materials consisting of photos or other images fall into
cate-gories: pictures of the artist and pictures of others. If the
depicts the artist, the label generally does not need releases
agreements usually permit the record company to use images of an
to promote the sale of records and videos. Of course, as a matter
relations, it makes good sense to allow the artist to veto the
of any pictures the artist doesn't like.
Even if the only person depicted in an image is the artist, the
make sure that it has the permission of the owner of the copyright
image, unless it is in the public domain. Often marketing people
labels will want to use photos from magazines, books or
the labels generally do not own these images. Unless the copyright
in these images consent to their inclusion in the DVD, the label
liable for copyright infringement and be subject to an injunction
There is no standard fee for the use of images in a DVD, so each
is a separate negotiation. This is assuming the owner can even be
On the other hand, the labels may own the right to use images from
art or photo Music DVDs shoots that the label commissioned. But
that case, unless the images were created by an employee, the
must have a con-tract transferring the copyright to the label or
rights covering the use of the images in the DVD.
If people other than the artist appear in an image, the label must
clear the copyright in the image, but may also have to secure
those people. Because a DVD is a commercial product, the people
in the picture could have a right-of-privacy claim; that is, that
is using their picture for commercial gain. Even if the label can
releases that were signed at the time that the picture was taken,
may not be sufficient if the language of the release allows the
use of the
picture for promotional purposes only. In that case, a label may
try to identify and locate the indi-vidual and enter into a new
allowing the commercial use of the image. On the other hand, if
focuses on the artist, and the other people in the picture are not
then a release may not be required.
Typically, a label will commission an independent production
produce a promotional music video. A great deal of money is
these promo clips. Some, particularly those featuring superstars
Michael Jackson or Madonna, may cost more than $1 million each to
In exchange for a production fee (generally 15 percent), a
will produce a promo video on a work-for-hire basis. This means
label can use the video for any promotional or commercial purpose
any additional payment to, or consent from, the production company
people hired by the production company, such as the director.
However, certain people appearing in the video-for instance,
dancers-may be entitled to additional payments for their inclusion
commercial DVD. The artist, too, may be entitled to additional
for the inclusion of the promo video in a DVD, depending on the
of the artist's recording agreement with the label. The bottom
is that because the label usually owns the copyright in promo
use of promo videos generally involves fewer clearance hurdles tan
of other bonus materials.
Often a label will commission a writer to generate a short artist
or liner notes for the release of a CD. The label may want to
materials in the bonus section of the DVD to entice hardcore fans
the disc. If an employee of the label wrote these bios or liner
label would own all rights in them. If the record company
from a freelance writer, the contract would probably allow their
because the author transferred the copyrights in the material to
company or because the grant of rights was broad enough to allow
use in connection with any "record." Record is usually defined in
industry agreements to include audiovisual devices. But if a
or newspaper review is sought, then the label will have to clear
from the owner, which may be the publication or the author,
the deal between the author and the publication.
Sometimes marketing and other creative types at a record company
to include in the bonus section of a DVD footage of an artist's
in a television show, such as "Saturday Night Live." Trying to get
from one of these shows can be difficult because the program's
may not want their show to be associated with the record label.
the show may be more likely to respond favorably if the management
artist pursues the clearance. The producers of the show may be
if they feel that they must do so to stay on favorable terms with
But even if consent is obtained, payment is usually required.
usually involve an advance against a certain per-unit royalty. If
from the show or the in-house band played with the artist during
performance, the release of the performance in a DVD may require
union-mandated payments. Finally, if the audio-visual footage was
a venue such as a concert hall or stadium, other union-required
could be triggered to labor groups such as the stagehands.
Discographies usually consist of the tides of each previous album
video of the artist featured in the DVD. The original packaging
for each such album and home video may also be shown. In addition,
song contained in the prior record and home video may be listed.
on the tide of each song, the consumer may be able to hear a brief
of that song, or in the case of a home video, the viewer may hear
an audio-visual excerpt.
In regard to album and home video artwork, the labels almost
the right to use such artwork to promote sales of the record or
issue. Using the packaging in discographies arguably promotes
sales of the
old albums and videos in issue. With respect to playing excerpts,
generally own the masters and the videos, so playing an excerpt
generally pose any obstacles. However, this raises the issue of
the labels must acquire additional licenses from the owners of the
music (i.e., the songwriters and their representatives, the music
to play excerpts of the recordings. The record companies have
taken the position that playing small excerpts of music to promote
of a catalog does not require additional publishing licenses. To
of this writer, the songwriting community has not challenged this
Although DVDs are not generally available for download on the
they soon may be. Thus, a lawyer who is clearing the home DVD
about clearing the above materials for download as well. Of
third-party consent is necessary, this will probably require
payments. The lawyer can structure such download rights as options
be paid unless and until the disc becomes a digital file.
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