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Client relationship in jeopardy – help!
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It is so funny to see this topic come up again and again on this forum (do a search and spend a few days reading), with the same people always espousing the same views. I started out as a still image photographer, where you ALWAYS own what you shoot, AND the negatives, AND the client pays for your time AND all materials. If they want to own the negatives, they pay more. Unless you sign a “work for hire,” you own the raw footage. If I shoot something for free for anyone (especially non-profits), I definitely own the footage. Depending on the pay scale and job, those criteria dictate whether I will relinquish the footage or not, but always with the stipulation that I must be credited for the footage. It is just plain silly (and wrong) to call this practice “unethical.” The bottom line is always make sure where you and your client stand before committing to a project, and have a signed contract in place to back you up. That being said, anyone can sue anybody for anything in the good ole’ U.S. and usually the deep pockets win, regardless of who is right or wrong, even if you do have a contract!
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Christopher Wright:
It is so funny to see this topic come up again and again on this forum (do a search and spend a few days reading), with the same people always espousing the same views.I agree with you Christopher (and not just because we have the same name). Copyright and intellectual property laws exist for the purpose of protecting the sort of work we do. It doesn’t matter if your raw tapes or project files have any other intrinsic marketable value. Most of what we do and most of the stuff we charge for is intangible. That $.50 plastic DVD, or the digital file on a website magically plays and tells a client’s story. It’s not like a car where you can see and feel what you bought. All the work that went into creating that video AND getting it in a deliverable form has value.
I’ve never understood why the same company that expects you to turn over a box of 100 tapes, is perfectly ok with having to pay for each and every use of a still photograph. Nor do I understand the willingness of people to turn over those boxes of tapes and project files, “no questions asked.”
Clients usually ask for footage because they want to save a crapload of time, effort and money by taking the work you’ve done and give it to another production house to create some deriviative work. So why do so many video and film professionals believe it’s such a bad thing to ask for reasonable compensation when a client asks for that footage, especially when they admit they want it for another project to be edited at another facility?
No one’s even brought up the issue of other facilities taking YOUR work, then taking credit for it. We’ve had this happen TWICE. On one project, we created an ad campaign for regional retailer, complete with a very high-end graphical look, animations and two days worth nicely shot video. When the client asked for the assets (tapes, photoshop files and after effects comps), we gave it to them. A month later, we see our creative campaign completely copied, (except with new text on the graphics) in a series of new spots. They had the audacity to enter the campaign in the addys…it won…and THEY ALL TOOK CREDIT.
I also posted earlier about two large clients that asked for ALL of their footage and graphic files. On both we asked for a reasonable sum that was barely more than the cost to dub the footage tape to tape. Both declined. One continues to use us to this day and our relationship is great. The other is headed for bankruptcy and their request was an attempt to avoid paying us.
So I don’t think anyone is arguing that corporate or even commercial footage has any real value or use to the post house, they’re arguing our creative works have intangible value. Those intangibles are worth something. And guess what…there’s a law in place to protect that value. You can read about here:
https://w2.eff.org/Censorship/Academic_edu/CAF/law/multimedia-handbook
But even after all that…we don’t treat this issue as an “absolute.” We STILL give footage to other facilities as long as the client is doing projects with us. In fact, we did it today. WE copied hundreds of clips for one of our competitors to use on a project they’re editing for the same client. So we look at this issue on a client and project basis.
Chris Blair
Magnetic Image, Inc.
Evansville, IN
http://www.videomi.com -
Very well put, and with your included link, finally put to rest!
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I am having a very similar problem myself right now! I’m in the UK also. My client has been advised that she owns the rushes and that I should hand them over. She claims this on the grounds that she is ‘the producer’ and producers own the rushes.
The original agreement was confirmed by email, i.e. I listed what I would do for the fixed fee, and she replied agreeing to it, and thanked me for being so clear and comprehensive. However, the list did not specify who keeps the rushes.
To summarize, I offered a fixed fee deal to produce a promotional DVD by; shooting (+ hiring a 2nd shooter), editing, designing and authoring the DVD, including packaging. All tape and equipment costs etc included.
The subject was a one-off live performance of a contemporary dance piece that she funded, developed, designed and choreographed. I had to capture the live show as best as possible for a full-version edit and a promo edit. I was left completely to my own devices creatively on how to shoot it (I also directed the other camera and we shot rehearsal also), and in the post-production it was the the usual client/editor etc working relationship set-up.
If it matters, this was done on a shoestring with consumer miniDV but using the usual Apple pro apps for post. I was happy to accept a miniscule fee because I did it for the creative and technical challenge. And I was happy to do more than the original agreement, but in terms of handing over rushes.. well there is a limit. She loves the results… and of course I agree she produced the show itself, but can she have any justification at all for her claim to the rushes because she is ‘the producer’.
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Harry,
I’m not sure about copyright and intellectual property issues in the U.K., but in the U.S., under the scenario you describe, you would own the footage (whether it’s tapes, digital files, P2 cards etc.). She would own the performance and choreography rights since she designed and choreographed the project. So you couldn’t use the footage for anything without her consent, but likewise, without a written agreement stating otherwise, she cannot legally compel you to give her the raw footage.
As many have pointed out on this thread, just because it’s what’s legal doesn’t mean it’s always a good idea NOT to just hand the footage over. If this was a low-budget deal and there’s no real prospect for future work, I’d just give her the footage. I doubt she’d pay you a buyout even if you requested it.
In our experience, if a client is still using us for projects and is paying us on time, we’ll typically make duplicates of raw foortage or files if they request it. If however, they obviously want the footage to take their work elsewhere, then we ask for a reasonable buyout fee and we’ll either give them digital files or the raw tapes. Now what we consider reasonable might sound high or low to someone else, but we typically ask for around $150 per tape. We arrived at that by simply looking at what stock footage houses charge for DVD’s full of shots. Most charge $599 and up for 12-25 shots. So we don’t think asking $150 for a tape that typicaly has dozens of good takes on it is asking too much.
So if we have 50 client tapes, we’ll ask for $6000 as a buyout. If a client had to re-shoot all that footage, it would cost them 25 times that…so we don’t think it’s a bad deal.
Even so…not one client in 12 years has ever bought the footage when presented with the buyout fee. Some moved on, one stuck with us and our relationship is better today than it was then.
There are a LOT of different opinions on this issue and there are many threads that discuss it. There’s also a lot of misinformation about the legal aspects of it (as related to the United States). The law is very clear as it pertains to multi-media and motion picture production of ANY kind. In the absence of an agreement prior to production, and as long as you’re not doing “work for hire,” (meaning you’re not an employee of the producer) YOU own the footage.
Chris Blair
Magnetic Image, Inc.
Evansville, IN
http://www.videomi.com -
Hi Harry
Perhaps I should have been a little more careful in my original post – some of Walter’s concerns come here too.
What you have I think serves to underline potential issues. And it may help to be clear about separating copyright and physical ownership.
Who owns the tapes will be a fact of contract – if your contract does not specify that you hand over ownership and possession of the tapes, then she will not be able to enforce this. You can decide whether to be nice or not, and there are arguments on all sides.
The copyright, though, could be trickier.
UK copyright law gives first ownership of copyright to a work’s “author” – references at the bottom! Of course this can be the employer if the work is created by an employee as part of his employment.
But for collaborative works like video, “authorship” can be a tricky issue. The advice I have been given is that the author and copyright owner in the event of a dispute is normally taken to be the person who made the arrangements for the work to be created – the producer (not the person who pushes the record button on the VT in studio, nor the person who pushes record on the camera / one of the cameras).
So a person organising a production who hires and briefs a crew, organises their shoot and sends them off to film and return with a roll of tape (hard disc / optical disc / roll of film) would expect to own both the physical materials and the rights to them. A person hiring a producer to make a video is not in that position – they would have an implicit right to use the created work for its intended purpose, but might not own either the copyright or physical materials used in creation of the work unless specifically arranged in contract.
In your case, it seems you agree your client was the producer. If you cannot resolve this amicably you will want to take legal advice, but it seems to me that, in a dispute, she will very likely be found to be the copyright owner in the finished work.
You might be able to argue that although she was the producer, you were the author and so the rights holder, since the major creative and technical decisions on the moving image production side were taken by you, but to me it does not seem likely that you’d succeed with this, and it’s a lot of fuss for a very small production.
As producer, she is also likely be found to be the owner of any copyright in the rushes, though this is less clear-cut. Certainly she will own any rights in the choreography, and the performers will have performance rights. These were probably assigned to her in the performers’ agreements with her. So you couldn’t use the rushes for anything else without her consent.
All in all, one approach might be to explain to her that you have supplied what was contracted, and that the physical ownership of the tapes remain yours. Her rights as producer extend to copyright in the finished work, but not to ownership of subsidiary materials used in the creation of that work. You could offer to supply the tapes to her, either as a courtesy or for a small fee to cover tape costs, or indeed you may by now have wiped them and reused them ( this will come up a fair bit with solid state media).
Let’s hope, of course, that between you you have properly cleared the music rights in your recording!
All opinions are expressed as opinions of the author – legal advice should be taken in any legal dispute.
https://www.opsi.gov.uk/acts/acts1988/ukpga_19880048_en_2#pt1-ch1-pb2-l1g5
Authorship of work(1) In this Part “author”, in relation to a work, means the person who creates it.
(2) That person shall be taken to be—
(a) in the case of a sound recording or film, the person by whom the arrangements necessary for the making of the recording or film are undertaken;
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Mike Smith:
But for collaborative works like video, “authorship” can be a tricky issue. The advice I have been given is that the author and copyright owner in the event of a dispute is normally taken to be the person who made the arrangements for the work to be created – the producer (not the person who pushes the record button on the VT in studio, nor the person who pushes record on the camera / one of the cameras).Mike,
You bring up a good point on the collaboration issue. According to the joint authorship provision in copyright law, this really depends on how much the producer actually contributed to the production. If they came up with the idea, then hired the production company to shoot the project, and the production company made all the other decisions concerning producing the video, then the production co. owns the copyright to the footage AND the final production.
If the producer contributed more to the production, like collaborating on how it was shot and edited, then ownership is joint.
Here’s a link explaining it:
https://www.citmedialaw.org/legal-guide/works-owned-one-or-more-creators
So in the absence of a “work for hire” agreement, the production company legally retains at least joint ownership regardless of whose idea it was, as long as they contribute substantially to the creative direction of the project.
All of this could be avoided by specifying up front in a contract who retains copyright. We include a line in our project contracts that explicitly states that we retain ownerhip of all footage as well as the completed project, including TV commercials, marketing videos, training videos etc (again, this provision is explicitly spelled out in copyright law and we’ve consulted with attorneys who confirm that we not only own the original footage, but also the completed work).
In the end, it’s really a non-issue until a client wants to take the work you’ve done and transfer it to a competitor to use in other projects or, revise the current project. Then in this case, they should pay some sort of a licensing or buyout fee. People continually discuss the “ethics” of this issue. I don’t believe ethics have anything to do with it. You’re not being unethical by following guidelines set down by a federal law!
The only real question is whether it’s always good for business to follow it. I think you have to look at it on a case by case basis and assess the intent of the client requesting the footage.
Chris Blair
Magnetic Image, Inc.
Evansville, IN
http://www.videomi.com -
Thanks Chris and Mike for your extensive and helpful replies, and everyone else who has contributed to this facinating thread!
[Chris Blair] “If this was a low-budget deal and there’s no real prospect for future work, I’d just give her the footage. I doubt she’d pay you a buyout even if you requested it.”
She has mentioned the possibility of more work, though not sure if that was just a ploy to getting the rushes. I fully take on board the wise words about ‘good business’, but for me the central issue is not whether I give her the rushes or not, but whether she has any grounds for stating (rather too bluntly) that she owns them and implicitly threatening non-payment until she had them. I have told her that I think she is possibly mistaken, but that I will double-check the facts and get back to her. If I am mistaken, I have promised her an apology and the rushes. Basically she has made me feel like ‘the villain of the piece’ and I don’t like it, and I want to clear my name… if I am indeed innocent!
To put this into context: She asked for 20% creatively and I gave 200%. I even halved the fee she initially offered so that it matched the figure I already had in mind. And the promotional DVD I produced has already secured her show it’s first prestigious venue (she also mentioned me by name in her application because of the film awards I had won previously). In contrast, during post-production; I don’t think she was ever punctual, kept switching appointment days, was indecisive (things usually reverted to my original cut) .. and basically made it a much longer drawn out process than it should have been. Hey nobody’s perfect.. and we all learn as we go (next time I’ll be charging a daily rate and cancellation fees!) .. but she is a talented choreographer and the end product is beautiful and will serve both our portfolios very well.
[Chris Blair] “In the absence of an agreement prior to production, and as long as you’re not doing “work for hire,” (meaning you’re not an employee of the producer) YOU own the footage.”
Can you define “work for hire” please? What’s to stop her believing that it was “work for hire”? Is it to do with working for a daily rate rather than a flat fee? I count myself as self-employed and I invoiced her, and the cheque was made out to me personally (rather than a company name) if that is relevant. Also, is it perhaps the case that even without a verbal or written agreement (that doesn’t mention rushes) that ownership would just as legally be mine?
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Hi Mike
[Mike Smith] “But for collaborative works like video, “authorship” can be a tricky issue. The advice I have been given is that the author and copyright owner in the event of a dispute is normally taken to be the person who made the arrangements for the work to be created – the producer (not the person who pushes the record button on the VT in studio, nor the person who pushes record on the camera / one of the cameras).”
That sounded a bit worrying when I read it, but Chris’ response reassured me a bit. Is what he said UK-applicable too? I’d like to think that I’m not just a button pusher(!). I may come across as a newbie (which I am in terms of running my own operation) and I’ve never exactly been prolific, but many years ago I directed TV commercials and won about a dozen awards for a couple of short films I wrote, directed and edited.
In terms of the copyright of the finished product, we have verbally agreed that we can both use it for promotional/portfolio purposes and that we would need each others permission for anything else.
[Mike Smith] ”
In your case, it seems you agree your client was the producer. If you cannot resolve this amicably you will want to take legal advice, but it seems to me that, in a dispute, she will very likely be found to be the copyright owner in the finished work.”I said my client was the producer of the show, but not of the DVD/video production/creation. Or at least that’s what I’m trying to ascertain. I was left to my own devices for the shoot (creatively and logistically) and her feedback in post (where I used my own equipment in my own office) was the usual client/editor one. In the credits my website is actually listed under ‘DVD production’ if that helps?
There is some video work I created for the show that is projected. I’m not laying claim to that because that is part of the show and she produced the show.
I guess I’ve come full circle. Please someone tell me that she can’t claim to have ‘produced’ (in the sense of owning SOLE copyright) of the video recording/edit/DVD of the show… or has that already been answered.. ?
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Thanks Chris.
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