Do I own my band's music video if I paid for it?

November 6, 2012

Dear Music Lawyer,

I am a member of a band, and we are preparing to record our first music video. I put up the money for the video and, I suspect, some members of the band may not reimburse me for their portion of the video's cost. I have a receipt for what I paid and want to protect my investment. How do I protect my investment in the video and obtain ownership in my name?

—JS

Dear JS,

If you want to own the copyright in the music video in your name only, you would be wise to have a written agreement with both the videographer and your bandmates to that effect.

The videographer should sign a work for hire agreement providing that the work was specially ordered or commissioned for use as a contribution to an audiovisual work (i.e., your music video). This language could be folded into the videographer's service agreement that states the terms of the recording -- when and where it will take place, fees, turnaround time if they are editing, etc.

Staking a claim of ownership in the music video with your bandmates could be trickier, unless you're the type of band in which you are the leader/songwriter and you employ your bandmates. Bear in mind that use of the music video would involve more than just the video footage copyright. To distribute and otherwise exploit the music video, you would also want to have the clear right to use the musical composition that is embodied in the video. If you don't own/control 100% of that underlying musical composition, you might have to get the other songwriters to agree to the music video's creation (remember that you need synchronization rights to synch up a song with a video) as well as certain exploitations of the music video (e.g., exclusive licenses).

Overall, I get the impression that you feel like you should own the video simply because you paid for it. However, that's not how things work from a legal perspective. Unless a copyrighted work is a work made for hire, copyright ownership (at least initially since copyrights are property that can be transferred/sold) is not dictated by who paid for the work's creation, but by who authored/created the work.

Frankly, it sounds like your agreement was that the band members would pay equal amounts for creation of the music video, and you want more control in the band unless and until they reimburse you. Since ownership and control can be separated, you could agree that the band owns the music video, but perhaps you get to make decisions about how the video is used and/or you get to collect any monies that flow from the video (and gigs? CD/merch sales?) until you recoup your expenses. In the alternative, maybe you have an agreement that you initially own the video, but you agree to assign ownership/control of the video copyright to the band after you have been fully reimbursed. That might get your bandmates to pay up.

But you've also got to think of what should happen if some of your bandmates reimburse you and others don't. I'm afraid there are rarely standard answers to these kinds of questions, although it's certainly not uncommon for some band members to be able to afford more than others. Just be clear with what you expect for putting up all the money for the video, preferably in writing.

—Amy E. Mitchell