February 19, 2011
With well over two million wedding ceremonies taking place annually in the United States alone, it is not surprising that the wedding industry is still healthy, in spite of the state of our dismal economy.
Despite the economy, wedding planners, caterers, florists and more who are involved with wedding productions are surviving, if not thriving. That is also the case for still and video producers. Along with the opportunity to be part of this profitable business come responsibilities and potential liabilities. This article outlines some of the legal pitfalls you should know when embarking on or pursuing a wedding video career as a part-time job, or an avocation. Knowing where the mines are in the minefield is always a good idea and helps minimize your exposure.
It is good practice for you to draft and execute a few written agreements with your client and with others before the event. You do not have to hire a lawyer to prepare the agreements, as long as they are clear and grammatical and preferably printed, as opposed to handwritten. Of course, it would be a good idea for you to retain a lawyer to review your agreements before they are executed. This review process will cost you much less than if the lawyer had to draft the agreement from scratch.
Write in plain English, not legalese. Short sentences are best. Once you have drafted an agreement, consider making it a form that you can use for future events with different parties. You can modify or revise your form agreement for future use, as different situations arise. This, by the way, is how lawyers work: they often start with a previous document written by themselves or others, and customize it for the present parties and situations.
The agreement with your client, known as an “event agreement,” should cover standard terms and conditions found in any contract, such as: names and addresses of the parties (your client and you); time and location of the event; work to be performed; and materials to be delivered to your client, including as many specifics as you can recite. These specific terms can include:
- The time and place of the event and the duration of your participation in the event, with an extra fee for time you spend above and beyond the agreed-upon length of time at the event.
- The length of the final, edited video.
- Whether you will record the wedding ceremony, the reception, or both.
- How many copies of the final video will be delivered and in what medium.
- When or where to deliver the video.
- Music, still photos, or other materials to be provided by your client, by you, or by both of you.
- The fee you are charging, including the down payment and any applicable taxes, and when the fee is to be paid as a lump sum or in installments.
- Excuses for your non-performance due to acts of God (e.g., natural disasters) or other unforeseen events, such as illness, labor strikes, etc., called force majuere.
- A refund or partial refund policy if the wedding does not occur.
- Penalties for non-performance, if any.
- The jurisdiction in which litigation or arbitration will be conducted if a dispute arises that cannot be resolved solely by you and your client.
- Warranties by your client and by you.
- Indemnification by your client to release and agree to protect, save harmless, and defend you from lawsuits.
- Copyright ownership.
- Your storage policy for original tapes or cards or files for archival purposes.
- The amount of wedding cake you and your staff will be entitled to. (Seriously, if you require food and drink for your staff or you, be sure to specify that requirement with your client in writing, too.)
Music Sync Agreement
You will want to use another agreement with the live band or DJ. This agreement should include a warranty clause stating that the performers have the right to play the music they will be performing. An indemnification clause protecting you from lawsuits for copyright infringement would also be a good idea. The agreement should also grant you a sub-license – technically, a synchronization license, so you can include the music you record with the video images you take. This sub-license should expressly allow you to video the performance and event, edit it, and display it in limited distribution video copies and/or on Internet sites.
A permit for shooting your video at the church, hotel, city hall, or park will not be necessary, as long as your client has arranged with those places to hold the wedding event there. Allowing photographers and videographers to work during the event is either explicitly included or implicit in the agreement between your client and the owner of the venue. You might ask for a copy of that agreement to see if any restrictions are recited that can affect you.
Finally, you will want to enter into a separate agreement with each of your outside contractors or employees, if any. This agreement should be used for all of your projects, so you will not have to re-create it for every occasion. To be complete, this agreement should also include the rate of pay for each participant, the work to be performed by your assistant, taxes to be withheld, a code of conduct before, during, and after the project, and copyright assignment to you of the work your assistant creates. If the people you hire to assist you use their own equipment, you might want to write into the agreement if you are paying for the rental of said gear, or if it is included in the hire pay.
For samples of any of these agreements or to get ideas of other terms and conditions in agreements, search them on the Internet.
As a matter of decorum, protocol, courtesy, civility, and common sense, rather than strictly legal considerations, be as unobtrusive and non-disruptive as possible during the event. That means not imposing your equipment or yourself in places or at times that are inappropriate. For example, even though, as a videographer, you may want to include a scene of the bride getting dressed before the ceremony, you may have to forego those shots if the bride prefers privacy. Also, if camera-shy guests prefer not be in the video, respect their wishes. As you know, using photo releases for people who appear in your video is a good idea for a certain type of movies, but this is not one of them. For starters, it would be a logistical nightmare to have every one of hundreds or even dozens of guests to read and sign releases. But legally, most everyone is expected to know that photographers are likely to roam freely around the ceremony and reception venue. They also can be confident that your video will have very limited distribution, online video sites like YouTube.com being the exception nowadays. Impliedly, therefore, in court you can argue that all of the guests and the wedding party (the principals) have consented to being photographed or videoed merely by attending the event.
Nevertheless, refrain from shooting subjects who are performing private activities. (Scratching and picking come to mind, as does erratic behavior or unconsciousness due to intoxication.) Those occasions that subject the guests or principals to ridicule may give rise to lawsuits against you based on invasion of privacy, however unlikely that may be.
One way to ensure that your video is “clean,” is to send a copy to your client before finalizing it or making copies. The risk, of course, is that the client may demand significant revisions to your work, requiring much more time than you budgeted. You might want to cover this contingency in your agreement with your client.
Your Website and Copyrights
As you may have heard, businesses routinely use the Internet to show credibility and to publicize the services they render. If you hire a web designer to develop your site, you may find that you do not own what you think you do. Often, companies learn this lesson the hard way, when the web designer refuses to allow the website to be copied or used as a template for another site. Or worse, sometimes the web designer attempts to extort the very party who has paid him or her.
How can his happen? After all, you paid cash for the development. You may have entered into an agreement, prepared by the web designer, that spelled out your designer’s duties and obligations. It does not seem logical or fair that you would not have complete ownership and the right to use the website materials any way you wish. It may not be fair, but unfortunately, it is legal.
The U.S. Constitution that went into effect in 1789 states that Congress has the power to secure for authors for limited times the exclusive right to their writings. This provision was to protect the individual artist from unfair copying of his or her creative work. The original Copyright Act, pursuant to the U.S. Constitution, was enacted in 1790. The Copyright Act lists an ever-growing number of “writings,” now called “works of authorship,” that are protectable under our copyright law. Under the original Act, and surviving to this day, is the clause, “the owner of copyright… has the exclusive rights to do and to authorize” a number of activities, including reproduction of the work and preparation of works that are derived from the original. This statement cuts two ways for you: as the creator of a video, you automatically own the copyright to your video of the wedding; but as the owner of a website, you do not automatically own the copyright to the work that your website designer creates. In the first case, your client pays you for your work, but since you performed the work, it is you, not your client, who automatically owns the copyright to it. In the second case, although you pay your website designer, you do not automatically own the copyright to the work that appears on the site.
Case law has settled the question (for now), holding that, absent a written agreement to the contrary, the individual who creates the work is the owner of the copyright.
You may provide all of the text and images for your website, and even give the web designer detailed directions to arrange those images and text on the computer screen. Even though you agree to pay the designer for his or her services, it is still the web designer who owns the copyright to the work.
Get it in Writing
An agreement signed by your designer and you can take care of the situation. If both parties agree that the work is a “work made for hire.” courts will generally decide that the designer has created a work whose copyright rights are transferred to the entity that commissions him. These four magic words – work made for hire – when included in a written agreement, allows you, as the entity that commissions the work, to own the copyright rights. A well-drafted copyright assignment agreement should include a clause that expressly assigns the work to you, regardless of whether the court rules that the work was one made for hire. Needless to say, it makes sense to reduce your agreement for website design to writing before you make a payment and the work begins. A final note on copyrights. In the credits, be sure to display your copyright notice: © Your Name 2011. This notice grants you certain rights, and provides free advertising.
You may want to investigate three types of insurance. In the order of importance and least cost first, a general liability insurance policy protects you against any mishaps by people who attend the ceremony and/or reception. The common sorts of mishaps include injury to visitors due to your or their negligence. For example, lights can come crashing down or cables can be tripped over, injuring the guests and, of course, damaging your equipment. Accordingly, you may wish to obtain a business owner’s policy (BOP) to cover those events.
Along with the BOP often comes a worker’s compensation policy to cover your employees, if any. Depending on the state in which you do business, you may also be required to have a disability policy, which protects your employees and is a requirement at this time in California, New York, New Jersey, Rhode Island, and Hawaii.
Another policy that is more expensive and less popular is a professional liability policy that covers errors and omissions. This policy protects you against any legal action that can be brought against you by dissatisfied clients (“Oh, you didn’t mention that you wanted the video with sound!”) or by others who appear in your final video.
Finally, much more rarely, you may wish to investigate an insurance policy that protects you against infringement of intellectual property, such as copyright infringement and trademark infringement. There may be no need for the infringement policy if you include an indemnification clause for such legal actions in your agreement with your customer. The last two types of insurance may be combinable.
Incorporation or Limited Liability Company
Insurance companies are sometimes reluctant to issue policies to individuals, so forming a corporation or limited liability company (LLC) may be advisable. If you decide not to purchase insurance policies, consider forming a corporation or LLC to help insulate you from liability. Another benefit to establishing your own company may be for immediate deduction of some expenses and reduction of taxes that you would otherwise have to pay. See your accountant or financial adviser for more details.
Finally, you should engage the services of an accountant or tax preparer to help you register your company, report income, and pay taxes on such income to appropriate local, state, and federal agencies, as required.
Contributing editor Attorney Mark Levy specializes in intellectual property law. He has won many amateur moviemaking awards.
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