Legal Question in Intellectual Property in California

Liability when re-selling movies that may have illegal copyrighted materials

I own a small video rental store. I would like to sell and rent movies (on VHS or DVD) produced and made by independent film makers from around the country (i.e. non-Hollywood movies). I have no idea if those independent film makers have legally or illegally used music in their movies (i.e. for background music or theme songs, etc.).

Question 1: Will I be infringing copyright laws if I rent or sell these movies if I don't actually know the film maker broke copyright laws (assuming copyright were actually violated)?

Question 2: If I create a release agreement, can I shift all liability to the film maker who committed the violation (and who lied to me about copyrights)? I.e. a contract that says ''I, the film maker, hereby affirm that I have not violated any copyright laws in the making of my movie,

and, if I have, then the Video Rental Store who is selling my movies had no knowledge of my illegal actions and I am solely responsible for the charges that would be brought, i.e. $30,000 for each instance.''

Thank you for your time and knowledge.


Asked on 2/21/06, 1:48 am

3 Answers from Attorneys
Christopher M. Brainard, Esq. C. M. Brainard & Associates - (310) 266-4115

Re: Liability when re-selling movies that may have illegal copyrighted materials

You could be potentially liable if you knew or should have known that they were using infringing material -- e.g., some type of notice.

On question two, you can shift liability to the producers via contract and you seem to be trying to draft an indemnification clause combined with a assurance. I can help you with the drafting project as well as other things I think.

Contact me if you think so, too.

Read more
Answered on 2/21/06, 2:14 am
Richard Jefferson M.E.T.A.L. LAW GROUP, LLP

Re: Liability when re-selling movies that may have illegal copyrighted materials

Question 1: The technical answer is yes which is why you need a properly drafted agreement which addresses this issue. Even blockbuster faces these kind of issues but as long as you are contractually protected you will be in good shape.

Question 2: Again, you have the right idea but you need to have a properly drafted contract so that there is no question about the indie company's warranties, representations, and agreement to indemnify (be responsible) if an infringement did occur.

I could help you with this if you would like. Regardless, do not try to draft this kind of contract yourself. You need to have an entertainment attorney draft the agreement. The small price you will pay for the contract far outweighs getting caught up in a law suit for copyright infringement.

Thank you.

Read more
Answered on 2/21/06, 11:32 am
Elizabeth L. MacDowell Law Office of Elizabeth L. MacDowell

Re: Liability when re-selling movies that may have illegal copyrighted materials

You could be liable for copyright infringement under some circumstances. But, regardless, you could be sued for copyright infringement, and that costs money whether you are "guilty" or not. To protect yourself, you should require your suppliers to indemnify you via a contractual indemnity clause. This would allow you to hold them responsible for any attorney's fees that you incurred defending yourself in a law suit related to their product, or for any damages awarded against you. A proper indemnification clause can help protect you - although only to the extent you can get the money from the other party!

Read more
Answered on 2/22/06, 12:30 am


Related Questions & Answers

More Intellectual Property questions and answers in California