Earlier this week, we posted a blog
that discussed the issue of signatory talent payment obligations in relation to
the unauthorized posting of commercials on third party websites such as
YouTube. A number of readers have asked for clarification on the following two
points:
Q: If an advertiser is made aware that a commercial
has been posted on a website without their authorization and the advertiser does
not notify the website to remove the commercial, is the advertiser obligated to
make an internet payment to the performers in the commercial?
A: No. It has consistently been the JPC's position that regardless of
whether an advertiser has been notified of an unauthorized posting or not and
regardless of whether it decides to demand that a spot be pulled down or not,
the advertiser is not obligated, at any time, to pay any fees to performers who
appear in those spots. The individual performers can, of course, pursue action
against the third party website or the third party that posted the spot to
protect their individual rights, but they cannot look to the advertiser to make
payments for such use.
You should be aware that the unions may not share
the JPC's position on unauthorized postings. In our experience, although the
unions may seek internet use payments in their initial claim, they withdraw such
a demand if the advertiser requests removal of the material from the offending
website. The JPC does not believe that an advertiser is required to do so under
the contract, but some advertisers have chosen to in order to avoid the costs
and risk associated with defending a claim. That determination is up to each
individual advertiser.
The JPC is unaware, however, of any advertiser
capitulating to the unions' demands for internet use payments in the case of
unauthorized use. Nor does the JPC recommend doing so, as it may not only place
advertisers at a competitive disadvantage relative to the market but also create
unhelpful precedent for the industry in future negotiations or
arbitrations.
Q: What about other copyrighted or licensed
material in the commercial?
A: Signatory obligations under the contracts relate
only to the payment of performers in commercials. Commercials may contain other
material the use of which may be restricted by license/contract agreements, e.g.
stock music, celebrity contracts, photographers contracts, etc. You are advised
to seek legal counsel on these issues in regard to specific ads and commercials
should you receive a demand from those third parties.
