In North Hollywood, there lives a video artist named Vello Virkhaus. Virkhaus' company, V-Squared Labs, creates video content for industrials and rock shows, DVD menus, and other custom animations.
V-Squared Labs enjoys an unparalleled reputation for providing the best in custom content creation and video performance, having worked for Sting, the Red Hot Chili Peppers, and Korn, to name a few. The content specialists at V-Squared come from a background of VJing, as opposed to television direction like many other video directors. The resulting work is unique in its suitability for the growing market of lighting-controlled media servers.
One day, Virkhaus was hired for a series of one-off concerts to mark the release of the final album from a well-known hip-hop artist. The lighting designer/production designer for the hip-hop artist — lets call him “Bob” — chose Virkhaus to provide the video content for the shows and supervised his work, but ultimately, Virkhaus was employed by the record company.
The first concert was a television special and went relatively well. The hip-hop artist never remarked one way or the other on the content that V-Squared Labs produced for the show within the relatively low $30,000 budget. Bob was quite difficult to work with, but Virkhaus had been expecting this as his reputation had preceded him.
For the next phase in this ongoing series of shows, the hip-hop artist was now taking a much more active interest in the visuals that were to be part of his show. Virkhaus showed the library of content created for the previous televised special to the hip-hop artist and received a singularly negative reaction.
“He did not like any of it,” remarked Virkhaus. ‘“That's cheesy; that sucks,’ was the reaction I got. He then saw a couple of the clips that I had left over from a previous job, and he loved them. I had to then explain to him that those clips had been specifically created for a pop-metal band's stadium world tour, and that band had paid about $150,000. His reaction was that he ‘didn't care,’ and we should ‘just steal it.’ He wanted clips from the movie Reservoir Dogs and a load of other copyrighted material, and whenever I talked to him about what he wanted and who was going to pay for it, his attitude was, ‘Steal it. Jack it.’”
Ultimately, the show went on with a mixture of new content created by Virkhaus and copyrighted material used without permission. Concerned about his own legal exposure, Virkhaus approached the artist's management with a contract specifically protecting his liability for copyright infringement on the use of clips of Quentin Tarantino's movies during the show.
“They stalled, and then, they refused to sign the contract,” comments Virkhaus. “All that contract did was release me from liability from copyright violations and placed the liability in their laps, and they refused to sign it.”
At the end of this phase of shows, Virkhaus gave clear instructions to the video rental company to erase the drives used for playback during the show. This was Virkhaus' standard practice at the end of a job. Virkhaus then received a call from the artist's management asking for a copy of all the content used during the previous series of shows. Although not part of the original job he had agreed to do, Virkhaus compiled a tape of the content that was highly specific to the artist such as logos, etc., on the basis that he only had one more show to go. What was specifically excluded from that tape was footage that Virkhaus had shot in and around New York, specifically for the shows, but that, as far as Virkhaus was concerned, belonged to him.
“Video clips that I make are my art,” says Virkhaus. “What I do is not work for hire. Clients are commissioning me as an artist, and they can use my art for their shows, but once the show I have been commissioned for is over, that is the end of it.”
A key difference for Virkhaus between this final show and previous shows was that his own Edirol media server was being replaced by a DMX-controlled media server. This media sever would be directly under production/lighting designer Bob's control from the main lighting control console. By a quirk of fate, the media server that was to be used had previously been used on the pop-metal band's world tour and still contained content created by Virkhaus specifically for that tour. In retrospect, Virkhaus now realizes that not wiping the drive of the media server as soon as he saw that it contained content from the previous tour was a big mistake.
At the end of the show, a distracted Virkhaus overheard Bob asking a technician from the rental company that was supplying the media server and all the lighting for the show for a copy of all the content. Virkhaus realized that the already packed-away media server contained over 3,000 loops of all-original content created for the series of the hip-hop artist's shows and the pop-metal band's world-tour.
“I told [Bob] ‘No way are you getting a copy,’” recalls Virkhaus. “[Bob] then started screaming at me that I had to go and talk to the management ‘right now,’ and that they have to have a copy. [Bob] stood there, got right in my face, and created a serious confrontation. It was ugly, and I backed down. I should have stood my ground, and if things got out of hand, I should have just rolled with it.”
With a media server containing a significant amount of original content now out of his control, Virkhaus undertook a campaign of calling the rental company repeatedly and reminding them to erase the drives on the media server that had returned from the hip-hop artist's most recent show. Virkhaus even went as far as trying to employ the same technician and media server on a new show to ensure that the drive had been erased, only to have the job cancelled when the band split-up unexpectedly.
Time passed and life went back to normal. Virkhaus had new and interesting clients, and Bob continued with the rest of the shows for the hip-hop artist.
However, while on an unrelated new project, the designer for the pop-metal band, a long-time client of Virkhaus', angrily approached him asking “Why is [Bob] using the pop-metal band's footage?” Virkhaus using this footage with permission was one thing; somebody else using it, or Virkhaus selling it, was something else entirely! Virkhaus then spotted the content he had created for the hip-hop artist being used on national television at an awards show.
“They never removed it, obviously,” says Virkhaus. “They kept it, and then used it ever since. I think what [Bob] had done was to promise the client a copy of everything, so that they could get me out of the picture. He had ten shows to do after my last one. With me out of the picture, it ensured that he could work with the hip-hop artist all year using this library of footage. He had some kind of arrangement with them, and that is why he got so furious with me when I said no way.”
Through his attorneys, Virkhaus contacted the hip-hop artist's management to inform them that they were in breach of copyright. The response was that Virkhaus had been employed under a “work-for-hire” contract, and that they, not he, retained the rights to the content library.
“We never had a contract,” remarks Virkhaus. “In fact, the only contract we even talked about was to release me from liability for their copyright violations, and they would not sign it! The legal advice I have received is that I own the intellectual property to anything I've made, except for other people's trademarks or copyrighted logos. Unless there is a contract that specifically states, signed by both parties, that it is a work-for-hire agreement, it is my art they commissioned me to make, and I own it.”
To add insult to injury, several months after the awards show, Virkhaus was showing off his demo reel to a potential customer who recognized some of the content. The new customer had just returned from a media server demo at a rental company, where he had seen some of the content created for the pop-metal band's world-tour.
“That could have potentially taken a client away from my VJing business,” remarks Virkhaus. “The rental company was putting its lighting director up against my whole career as a VJ and using my content to help them do it. Even if the hip-hop artist's management were correct in claiming that I had created content under a work for hire agreement, why is a rental company using it? That is outside the scope of any license.”
In the end, Virkhaus had to give up on the legal route due to the financial realities of the situation. V-Squared Labs is a small operation employing a few select people, and Virkhaus faces a major record label and one of the largest lighting rental companies in the industry, both of whom have significantly deeper pockets. Virkhaus has also lost one of his biggest clients — the designers for the pop-metal band — because the content he created for them is no longer unique.
Now armed with a legally binding contract, drawn up in response to this experience, Virkhaus faces the dilemma of how to implement and defend it. The contract is only worth the amount of money he is prepared to spend defending it, if he can get it signed in the first place. The only way for him to recoup his legal costs is to register the copyright on every job that he undertakes, a significant expense in itself.
The rental company would not respond to Virkhaus or to LD when offered a chance to give its side of the story. Bob, however, had this response:
I am unfortunately not authorized to comment on behalf of [the hip-hop artist] or his productions. I can mention that working with the talented Vello Virkhaus on various productions was great creative success, and I look forward to work with him in the future.
If there is a moral to this story, it is that you have to keep personal control of your content. Otherwise, someone else will. Copyright issues affect all of us, whether we like it or not. Discussion and openness of who controls and owns what at the beginning of a job may well result in a few arguments. It may even cause some loss of work, but the alternatives are much worse.