Who owns rights to a live streamed footage of a concert?

Question

I work for a festival in the digital department. I received a request from a documentary filmmaker about wanting to use a portion of a live-streamed footage of our concert. The clip lives on our YouTube channel, which is where the filmmaker came across it. In the contract with the performing band, it stipulates that the festival reserves to right to live stream the performance and place on YouTube in perpetuity, and also that media outlets may use record and use 2 minutes of the performance (doesn't say of the 'livestreamed' performance). It doesn't say anything about allowing a third party to use it for another type of a production (=documentary).

My question is: who owns rights to this footage? The festival, the company that did the livestreaming, the band, the band's label? Do I (as the festival) have a right to give permission to use the footage to this filmmaker? If I should refer them to someone else, who should it be?

If it helps, I am in Canada, the artist from Columbia, as is the filmmaker who made the request.

Answer 1

Generally speaking, copyright flows from the end of a pen (or at the A/D converter of a digital recording device). However, owning the copyright to a specific artifact, such as a digital video clip, does not trump all the other rights and claims that may be made regarding the materials captured within that clip. Which means that there are several rights all in play at the same time, and those rights may conflict. The legal term for getting enough rights so that you can do what you want with the rights you own is called "clearance" by those in the industry, and "collective rights management" by Wikipedia (see https://en.wikipedia.org/wiki/Collective_rights_management).

The long and short of it is that it is not enough for you to "own" your video clip if you want to use it somehow. Depending on how you want to use it, and your tolerance for risk, you need to get every party who might lay a claim to any copyrighted or trademarked material within your video clip to agree that they are OK with you using it in whatever way you say you want to use it.

Sometimes you can ask for, and receive, a "worldwide, perpetual, royalty-free license to use XYZ material in any way, imagined or not yet imagined". Other times, you might have to settle for more limited rights "a performance of the video at the ABC Bar in New York City, on December 31, 2015 only, for a fee of $10,000 paid to XYZ Rights Holding Company," and agree to a whole bunch of other stipulations to boot.

There are entire industries that make furniture and automobiles for Hollywood studios so that they don't have to ask for the rights to feature an IKEA kitchen table or a Ford station wagon in a movie. That's how bad/hard the clearance problem can be.

If you are lucky (and risk-tolerant), you might only need permissions from the band and the film maker. If you are unlucky or not risk tolerant, you might need permission from every person captured on camera, and from every company that made every item that appear anywhere in the film. Good luck!