Using Beyoncé's 'Formation' Video to Understand Your Creative Rights
Disclaimer: I am not an attorney, so please seek legal counsel from an attorney if you have questions or concerns.
When Beyoncé releases new music, or new anything for that matter, it seems like the world stops (said in my best Bey voice) and all focus is on what she's doing...well, at least on your social media timelines. The typical slay! and yaaaaaaassssssss! tweets flooded my timeline when "Formation" came out last month. It usually takes me a while to visit a Beyoncé project because I like to visit it once some of the hype dies down. But this time, I decided to check out "Formation" on the Saturday afternoon that it spontaneously released. I won't give a thorough review of it, but I will say that I loved the overall messages of embracing blackness and celebrating its diversity and history. I'm not the biggest fan of the song lyrics as I am of the video, but once I thought about the video's diversity, a lot of the song's references made sense and made me a little more tolerant of the lyrics.
What really caught my attention was the drama about some of the video's footage. A few of the scenes of New Orleans, particularly the post-Hurricane Katrina ones, were used from a short Sundance documentary called That B.E.A.T., a documentary about New Orleans' "sissy bounce" music, a version of bounce music created by LGBTQIA artists in NOLA. The director and producer, Chris Black and Abteen Bagheri, tweeted about the use of some of That B.E.A.T.'s footage in the video and how they didn't approve of it. However, that conversation ended quickly when Melina Matsoukas, the director of "Formation," tweeted thanks to Black and Bagheri, and when Beyoncé's rep reported that the team received approval from Sundance to use the footage.
I thought this situation was an important one to talk about, especially in terms of music artists and knowing what types of things to consider when creating and distributing music. It's important to know the importance of copyright and publishing, especially as a creative that plans to publish and make money from their music. I'm not an attorney or anyone extremely knowledgeable about intellectual property, but I wanted to share five things that I'm learning that other creatives should learn from the "Formation" video confusion.
READ and UNDERSTAND your contractual agreements before signing.
The directors of That B.E.A.T. were upset about their work being used without their permission, but they didn't consider the possibility that Beyoncé's director had every right to use the work as long as Melina had the permission of the actual owner, which they did, according to Entertainment Weekly. Have a lawyer or someone knowledgeable about these types of deals with you during the process of negotiating a contract so that you don't make these types of public errors. Reading is fundamental, folks. This leads to my next point.
Whatever you do, get SOLE or JOINT ownership of your work.
Even though the directors for That B.E.A.T. receive royalties, they don't own the rights to the documentary; Sundance does. Beyoncé's camp went to Sundance for permission to use the images from the documentary AFTER talking to Bagheri. When creating a work with another person, make sure to take the time out to request the rights to your publishing, particularly the rights to how your work is used, in your agreement. It allows you to be an integral part of the decision-making process when someone requests to use your work.
You don’t necessarily have to, but you should file for copyright protection.
For those that aren't familiar, copyright protection is the protection of a creative work, like music, writing, art, and recordings, from being altered without the permission of its owner. People will suggest that you don't have to file with the U.S. Copyright Office because a creation is protected as soon as it is formed. But, I think it's wise to file, especially in case of a situation where someone tries to use your work without permission, proper credit, or by altering it, and you decide to sue them. You can sue without filing for copyright protection, but you'll have a better opportunity to win a case if you do so.
Filing is easy to do and you can do it online at the U.S. Copyright Office's website. It's also very inexpensive. For one item, the U.S. Copyright single application is $35. You can even file a whole project under a standard application for only $55. The downfall is that it takes a long time to process, but it's worth it in the end. Read about the differences between single and standard applications (and about filing work for multiple contributors) here and protect your art!
If you're recreating someone else's work, get their permission.
The directors may not have given their permission, but like mentioned above, Bey's camp received permission from the documentary's owners. I know folks love to sample like crazy, but before you put your sampled music out there and make money off of it, try to get the permission of whoever owns the sample's publishing. I know it's an arm and a leg, but you will run into a legal issue if you don't. There are a lot of rap artists that have been sued for copyright infringement because they supposedly didn't get the sample cleared. This list from XXL is from early 2015, but the list includes 15 cases that include copyright infringement. Get. The. Sample. Cleared.
Beware of "work for hire" agreements.
I'm not sure if the director and producer of That B.E.A.T. were under a "work for hire" agreement, but the concept is something that artists should know about and be cautious of. "Work for hire," or WFH, is an agreement that states that when one person's work is used in a collective for another person's project, it will be the sole property of the project owner. They own the copyright and publishing, which means that an artist who agrees to WFH will only be paid a flat fee when they give away the work. Similar things like this are done for studio session musicians; some artists are paid a one time flat fee for their performance instead of a residual payment through royalties. If possible, seek a license agreement, which will provide you with residual income and rights over your music.
I hope you use the "Formation" video fiasco as a way to get your business opportunities right and make smart decisions that will benefit you creatively and financially.