An article written by Eldar Manor and published on the IndiEarth Blog:
Creators setting out in the audio-visual industries may spend endless hours in pursuit of their creative desires. They may write songs, record them, create video clips and do other amazing things, but understanding some of the basic legal rights that make up their creations are sometimes overlooked.
Complexity of Rights Involved in the Content Creation Process
When a song is written or recorded, complex multi-layered intangible properties are created. Multi-layered, because there are rights in every aspect of a creative property: In the song, in the performance, in the sound recording, in the visuals and in the graphics. Such rights can be bought, sold, licensed and otherwise dealt with in ways similar to tangible properties such as a house or a car. The ability of content owners to deal in such creative properties (rights) without hindrance may depend on how such rights are dealt with during the content creation process.
Usually, the creative process involves the input of more than one creator. Thus a song may have been written or arranged by more than one person, a recording may include session performers not forming part of the “band” recording a particular album or it may include a sample from another recording owned by others, the script of the video clip for a song may have been written by a hired writer and the album’s cover graphics may have been created by an external graphic designer.
The complexity of rights involved making up creative properties means that those who create and aspire to own such properties, need to legally deal with the creation of such rights in an orderly way so as to ensure that the creative property they want to end up with is actually one that can be licensed, sold or otherwise dealt with without undesired obstacles. An owner of a sound recording wishing to license that sound recording for various uses, will need to ensure that he is not only owner of that sound recording, but that he also has all the necessary permissions from other rights owners whose creative properties are included in such a recording, be it owners of samples used or of performers whose performances are included therein.
In the past, the roles of parties involved in the creative and business aspects of the music industry were clearly defined. A music publisher published songs, a record label produced, marketed and handled the distribution process of albums and the artist or band were more involved in the creative side of things. Today, roles have become blurred.
With ever-changing technological developments, a band may be taking on both creative and label responsibilities. This “content owning freedom” comes at a cost though. It requires from such content owning creators acute awareness of the legal and business aspects of their trade which were once vested with record labels or publishers and it means in practice that such creators cannot focus only on creation.
Creators Signing Content Licensing Agreements
When creators are in control of their content, they will most probably be the entity negotiating and signing agreements relating to the commercial exploitation of such content. One of the basic terms in any content licensing agreement will be a requirement by the party receiving use rights that no third party rights will be infringed by the particular agreement and any of the uses granted under it. In order to be able to make any such declaration, the content owning creator will need to ensure that he has agreements in place with all those involved in the content creation process, which deal with the rights contained in such content (and that may mean songs, recordings, performances, artwork, graphics, visuals etc…) so as to try and cover as much as possible all desired content use scenarios.
Copyright & Rights Clearance Misconceptions
One of the biggest misconceptions that I come across over and over again in the context of clearing rights in the content creation process, concerns who owns the copyrights in commissioned works. It is usually wrongly assumed that those who commission creative works are those who own them. That logic does not always work in the case of creative rights.
If a band commissions a graphic designer to create a logo and packaging graphics for an album, we assume that the band would own the copyright in such logo and graphics. We also assume the same when a producer of a video-clip hires a writer to write the script for such video-clip. In both examples, unless an agreement is signed between the parties that transfers or assigns such rights to the commissioning party (or if the work is a “work for hire” in the US), then the first owner of the copyright in the creative work commissioned may be in many jurisdictions the creator and the not the commissioning party.
Given the diversity of content uses and the speed in which technology changes both content forms and their platforms, the best case scenario for the content owner who desires to pursue commercial exploitation of his content is to have worldwide rights for all possible uses in the songs, the sound recordings, the visuals and graphics and of the various elements making up any video clip produced (such as the script, the direction and the artwork) and other creative elements making up such content. If that is not possible, the content owner will need to secure those rights that are essential for him in the content exploitation process.
The complexity of the rights clearing process is further highlighted by the fact that even careful rights clearance planning is not full proof against possible claims. Moral rights, which are personal rights designed to protect the creator’s integrity and his right to be identified as creator of particular creative work, are separate from the economic rights in creative properties and are treated differently by different jurisdictions. Thus in certain jurisdictions like the UK, these rights can be waived by the creator. But in other jurisdictions, this may not be possible. This means that in the UK environment, content creating owners may have more legal certainly in the rights clearance process than in other jurisdictions.
Final Notes
Content creation rights clearance requires careful planning and a series of agreements. Such agreements should not be handled alone. Seeking legal advice from a specialist lawyer is highly recommended.
There are two major obstacles that deter creator content owners from dealing with the contractual side of the rights clearing process (and therefore undermining the strength of the creative properties they may own):
- Creator content owners are usually reluctant to spend money on legal advice: Content owners are advised to treat their creative properties as they would their house or car.
- Creator content owners are deterred by making agreements: Agreements may create awkward situations between people involved in the content creation process. It is advisable to deal with such awkwardness now, then having to undo legal entanglements later on.