I created a 90 second video project under a SAG New Media Contract that ran with success on YouTube. I was then approached by a television station about airing it. I contacted SAG to find out what would happen with the contract and the actors since all of them are union. They told me it would need to become a theatrical tv contract. After some back and forth with both SAG and the tv station, it seemed that it might be cost prohibitive to air it as I would be responsible to pay residuals out of pocket to the actors. So we shelved it so I could look into other contract options. But then I recently discovered that the station aired the spot. I contacted the station and they had no idea how it had slipped through and promised to fix the issue. Then several weeks later it was spotted again several times. My question: If SAG were to somehow discover I knew about this, would I be held responsible for not reporting it? The thing is, I would like to be able to discuss the airing publicly, send out a press release, update the imdb credit, etc, but am worried about having to pay big money to the actors out of pocket. Is there anything else I am missing here? It's such a weird situation to be in. Frankly, I am happy it aired, or continues to air, but I don't know quite how to handle it.
1 Answer from Attorneys
The TV station should have had a contract with you (and pay you) before they use your copyrighted material--they know that even if you don't. Customarily, part of the contract would be that the distributor (TV station) pays any residuals owed to the actors. If you had discussions with them and then "shelved" the discussions, that would seem to indicate there was no contract and you had not given them permission.
If this station played the video without your knowledge and consent, as they apparently did, you may have grounds for suing them for copyright infringement. Copyright infringement, especially willful infringement (intentionally playing the video aware that it is copyrighted material), would give you substantial statutory damages--up to $150,000 per showing. The fact that you contacted the station after you became aware of the first viewing, and yet they continued to air the video, would seem to be an indication of willful infringement.
Certainly, if SAG comes after you for the residuals, the station should pay. You should not be held liable for infringing showings made without your consent, but you may have to defend yourself in court or arbitration if SAG brings a claim against you.
You should consult with a litigation attorney who handles copyright lawsuits to discuss your options. Unfortunately, my office does not handle litigation--my focus is on negotiating clear agreements in order to avoid litigation. If, however, you would like to work out an agreement with the station, please feel free to contact me.