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Client relationship in jeopardy – help!
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Can’t say what’s legal in the U.K. In the U.S. the only thing that matters at the end of the day from a legal standpoint is what is on paper and what can be proven. Absent that, judges fall back to common practice and in that case in the US I understand it to be the shooter’s tapes and footage unless some other arrangement was made in advance. But nothing is ever simple.
For many people their personal code of ethics demands more, and there is nothing wrong with that, but it is not a legal requirement. This is something you choose to do, a commitment you make.
Legal or not, code or not, a third element is to ask oneself what is good for business in this situation. Well, the best thing would have been TO HAVE IT ON PAPER UP FRONT EVERY TIME. (sorry for the shouting). But failing that, will witholding the footage gain you business or lose you some business, regardless of your legal standing?
This has to be your judgement call. My personal feeling for this specifc case is that the footage can’t be legally cleared to use elsewhere, so the shooter owning it in perpetuity is legal, as far as that goes but it is a pyrrhic victory, since you now get to store tapes you can watch but not sell, (they can sue you for that aspect) and you’ve ticked off a customer who will try to burn your name and reputation in the marketplace. In this business referrals are mother’s milk, the main way you get more business. Antagonizing a client on principle may be noble and right but not be in your best interest.
The better part of valor for this specific case is to bill for the tape stock or hard drives the footage resides on, (unless these were already paid for under the terms of the contract) and any personal time you have to take to transfer it off your system. Bill for those things not already paid for under the contract, cash or certified check up front, and hand the tapes over, with a smile. And make a vow in blood to never put yourself in an undocumented contractual situation like this ever again. Write the terms you want, present it, and if that includes retaining the tapes, live with it if the clients say “no way”. Or figure that in when you calculate the rates.
I would not hand over project files or edit decision lists you created in your shop though, as those I would consider proprietary tradecraft. Much like the t-shirt shop that makes your custom tee will not usually give you the master silkscreen frame itself unless you pay extra for it, and the chef usually doesn’t give away the recipe, just serves up the meal. Again, you will want to explain this up front to the next client so there is no misunderstanding; if they want tradecraft like project files and AE comps and anything you generated internally that they didn’t supply, like custom music you made, they have to pay for it separately, IF you are inclined to release it.
Or they can put you on salary with benefits and own everything you think, do, and say, all the time. Again, this is a U.S. perspective, I don’t know how much is directly applicable to a U.K. or E.U. situation.
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We’ve run into this situation twice with large clients. U.S. intellectual property law is clear and as many have pointed out, in the absence of a contract stating otherwise, the producer/shooter/production company owns the footage.
But as others have also pointed out, ethically it’s a sticky situation. In each of our cases, the clients wanted to take literally hundreds of tapes of footage AND graphic and AE comps… and use the material to revise, recreate or update a video we previously produced.
In our cases, we felt it was necessary to ask for something financially in return for all this. The graphics alone represented hundreds of hours of design work, much of it very-high end in style and quality, and we didn’t feel comfortable releasing that to the client to do with as they wish.
In each case we presented the clients a buyout fee for what they wanted, and each was very fair considering the amount of assets.
One understood the reasons behind us wanting compensation, mulled it over…then decided to keep using us and is still using us today and is quite happy with the work.The other client was behind on their bills (not with just us but with many vendors), and we asked for quite a bit more in compensation than the first client (but it was still very fair). They turned us down but also kept using us for another 2 months before laying off 85% of their staff and essentially folding up shop.
To my mind, if a client asks for ALL your footage, it’s usually not a good sign, and unless they’ve requested ownership of the footage (as many large companies do), it’s totally your call on whether to release it or not.
Very little good can come of releasing a large volume of your work…unless the client is up-front and forhcoming about it’s use, and also assures you they’re not trying to cut you out of the food-chain.
Chris Blair
Magnetic Image, Inc.
Evansville, IN
http://www.videomi.com -
just recently I had a client from 5 years ago call asking if they can have the raw footage. It seems they are looking for the original unmixed audio from some interviews, but were not very clear. I of course offered up our services for any future editing work they may need. Never hesitate to find an opportunity when someone calls you out of the blue, you never know.
They asked if they have access to the raw footage, and can they see the original contract. I explained that, A, the contract is in storage off site, since this was from 2003, and B, they paid for the work, they own the material, our company provided a service. I had the tapes in a box right where I left them, and was never going to touch them ever again, as the footage is useless by anyone but the original client.Am I worried they will re-cut the project without me? Not really. The original project was about 100 hours of editing and another 100 hours of Director work. If they have the budget and inclination to start from scratch, good for them.
Come to think of it, yesterday I had yet another client ask for raw footage. This was a bit different – we paid for the shoot, but he is still the client. The video we created is done and in our library. He wants the raw footage for other teaching purposes, which is fine, as long as he gives us credit if he uses it.
It never hurts to be nice.
Mike Cohen
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I come across with this issue already and I have clear my position.
If the client hires me as a cameraman to shot something, all the rushes are of his property.
If I’m hired to make a finished video, my client is proprietor of the video with all his content. The rest, rushes included are mine.
If my client wants the video and the rushes too this have to be agreed beforehand.
Normally when I film I’m not working just as a cameraman, but I’m already directing and building the story on my head. I shot and work much more than my clients video needs and I want this extra job to reverts in my self, not in my clients pockets.
However with few of my clients we’ve got a share-rights agreement. But i know that if they want to re-use the stock footage probably they will contact me to work with them.
Cheers,
rafael -
Well, the good news is I had a meeting with the client this morning, and I’m starting a new project for them. The guy who asked for the footage is off on leave so I guess I’ll have to wait a little longer to find out what he wants it for. Watch this space…
Just wanted to pick up on a few points made earlier in the thread though.
Walter, I disagree with you 100% about client owning the footage. We didn’t just turn up with a camera, point it at something and hit record. The shots were thought about, directed and represent the culmination of many hours of hard work in pre-production.
It’s a fairly common misconception amongst clients who don’t understand that what we do doesn’t just happen. Sometimes it looks effortless because the best videos make you forget you’re watching a video. Non-professionals don’t notice good camera work, but bad camera work sticks out like a sore thumb. So my main beef is why should the client get to exploit my hard work, skill and creativity as many times as they like, but only pay for it once?
Conversely, why shouldn’t I get to maximize the return on my time and investment by being able to use, reuse and even sell that footage on as I please – some of it is great generic material of people using leisure facilities, cops on the beat etc, that has definite potential for being sold on as stock footage or re-appearing in future projects. And I’m certainly not in business to hand over work I’ve done to a competitor – is there a single production company out there that would?
To Mike Haensler – I can assure you we have done everything in our power to keep this client happy – they’ve had approximately $3000 worth of work this past year that we’ve not charged them for! What I can’t legislate for is being undercut. As I’m sure everyone here knows only too well, there are a lot of hacks out there, flogging appalling productions and production values, but getting away with it because the price is right. It appears that’s what’s happened in this case. I’ve no doubt that when the client sees the difference in what we give them to what ‘Company X’ has given them, they’ll call us back. However, in the meantime we are in an economic meltdown and money talks.
Anyway, thanks for the input all. Plenty of food for thought.
Merry xmas!
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[Neil Weaver] “To Mike Haensler – I can assure you we have done everything in our power to keep this client happy “
No you haven’t. If what you say is true, the only thing that will make this client happy is to give them EVERYTHING for free!!
AND DAMMIT PEOPLE, MY NAME IS MICK…..NOT MIKEorNICKorMITCHorRICK……MICK…with an M an I a C and a K…..MICK…….like Mick Jagger…..and yes this is meant as a joke so please don’t take it any other way. Feel free to bastardize my name any time you like….(he said to them knowingly…)
Mick Haensler
Higher Ground Media -
Perhaps I should just offer them a full refund on all the work I’ve done so far just to be on the safe side then!
Thanks Mick
(Got it right that time. Damn you skim reading!)
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I’ll quietly just say that I’m always troubled by these threads where someone feels that the mere act of shooting something imbues it with some kind of magical value that must be legalized, fought over, protected and negotiated. I understand rights for creative work. But really, unlike a work of creative fiction like a movie – most of the kind of corporate video we’re talking about is NOT generating unique creative work of lasting value. So I think trying to hold it tightly in order to squeeze more incremental billings out of it is silly.
Two thoughts.
After 25 years producing videos, I can’t think of a situation where my footage ended up being worth more than the EXPERIENCE I developed creating that footage. I’ll gladly pass along the footage without regret, precisely because I see it as the LEAST valuable asset I have. Think: they can take the images, but never can they take from me the understanding of how to create such images.
Secondly, all that so-called valuable raw material? Timelines. Graphics. 3-D source files? If they ask for it, send them EVERYTHING! Boxes of tapes, Disc after disc of digital files. Why? Because it’s so much fun to think of another person trying to go in and deconstruct/reconstruct a project without any fundamental understanding of the original thought process behind it.
I envision them as they start loading stuff into their computers. Poking around. Realizing that they don’t even have most of the software necessary to RUN the files. (Haven’t met a client with Omni-Graffle, the program I used to do quick video graphics, yet!) I imagine them so confused that they tuck the box in a closet and start over from scratch, because the program isn’t really the digital assets – a good program is the THINKING behind the program. The decisions. And you can’t typically look at something and decode the WHY of it easily.
So holding on to so called “assets” is, IMO, the attempt to control something that there’s really no need to control.
Send the “STUFF” wherever it needs to go. It’s just stuff. Particularly if releasing the stuff helps to make people feel good about who you are. THAT’S Valuable. You always get to keep your experience and understanding – and to walk away knowing that they PAID you to learn more.
That’s the real win.
My 2 cents anyway.
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Very Zen Bill. And possibly the right way to look at it.
Just had a call from the client. Turns out another dept has commissioned someone else to produce them a short piece of internal comms that they want to use my footage in. I’ve told them that’s fine. I will only charge a fee for compiling and transferring the material, and they can use it free of charge, upon written agreement that it doesn’t end up in this other person’s/company’s archive.For all the debates about the ‘value’ of raw footage – and there are good points on all sides – I don’t think any of us are in business to give our competitors a leg up, nor are we there to be treated like punks by our clients.
Thanks for the help all!
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I have been an independent in TV sports for 15 years. Over that time I have had just about every relationship I can think of with big networks, small networks and other clients. If you value the relationship with a client then work to keep it. If you do not, move on and find other clients. Many clients do not really care what goes into what they pay for, only what comes out. For me the best way to get more clients is to keep the ones I have satisfied. We have choices and so do your clients.
Cheers,
JW
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