Client in Breach of Copyright?

[jordanshaboom]

If we, as an agency, were to purchase content to use in a production for a client (a promotional video, for example), would they be in breach of copyright if they displayed this video on their website? If so, who would be liable?

[AndyJ]

Hi jordanshaboom,

I'm not sure I have correctly understood your question. If you supplied something which you obtained from a third party, and the client then used that material in a way which had not been authorised by the third party supplier, then your agency may well be liable since any licence ( a form of contract) would have been between you and the third party, and you may not have been explicitly authorised to sub-licence the client. However, if the licence did cover the use you honestly believed the client wanted the promotional video for, but they subsequently misused the copyright material for another purpose outside the licence, then the client may be liable. As ever with these things, much will depend on what was said to whom at the time.
However if your client commissioned you to provide, amongst other things, the video, and they have adhered to your terms (eg they've paid the bill) then in the absence of any specified limitations from you, there will be a presumed licence for them to use the copyright material that you have provided. The extent of their use (how long, in what media, or in territories etc) should also be governed by the terms of the contract between your agency and the client. If the contract was a verbal one, then a court will generally try to infer what the parties intended at the time. So, for instance, if the brief was to produce a promotional video but nothing was explicitly said about where it would be displayed, much might hang on how the client normally advertises or promotes itself. So if they already had a website for this purpose, then it might be reasonable to assume that they would have intended to use you material there.
Little details such as whether the format, quality or size of the video was specified in the brief will be significant, as a format etc which is optimised for the web would tend to indicate that was the intended purpose, whereas a higher quality or different format optimised for, say, video projection at a trade show, might indicate another primary purpose.
As a point for the future, and to avoid disputes, it is well worth having a check list which you complete with the client at the time of the first brief which covers such details. The details from the checklist can then be transferred to the written quote for the work, so that both sides know exactly what they are agreeing to. Any amendments to these parameters can added later, and may or may not be subject to additional fees.
If you have to obtain copyright material from a third party in order to complete a commission, make sure you are clear about what the client intends to do with the material so that you can obtain the correct licence from the supplier. Your standard business terms should make it clear who is to be liable in the event of any subsequent infringement claim. Generally speaking you will be liable for what you supply, but if the client supplies the material (eg photographs of his premises or products), then he will be responsible for indemnifying you. All these matters should be put in writing.

Please come back if I have misunderstood your question.