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How to deal with a problematic client
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[Chris Blair] “Copyright laws were enacted for a reason…to protect the type of work we do. Most of our work is intangible. There is absolutely nothing unethical or underhanded about enforcing your right to ownership of the tapes and the footage that’s on them, as well as the finished product edited from that footage.
That’s right…in most instances, the production company owns the copyright to the finished product. The only time they don’t is if the producer or client is heavily involved in the creative aspects of production. And in that case, copyright is jointly owned.”
I think some have forgotten the origin of the current footage/image ownership rights. This comes from a time when a still photographer would be in a war zone or other risky situation and a news organization would pay the equivalent of a one-time use fee, but they’d end up redistributing the image and making many times what they paid the photographer, who took all the risks and invested the time.
In the world most of us live in, we’re paid hourly to acquire these images, usually of corporate personnel and equipment or other proprietary content…which is not typically re-purpose-able unless some images used are very generic. It’s not as if an interview with the Pres of P&G is usable for some later project for some other client…of what benefit is ‘owning’ the tape if the content cannot be sold anyway?
In the original case of the correspondent/photographer I mentioned earlier, the content is journalistic and depicts world events. Visual content that can be used for other purposes…
So…I guess you can hold the footage hostage if you can’t get the client to pay you to edit…but then if they’re paying you to shoot but not edit, maybe your edit skills aren’t up to the level of your fees? If the client wants to nickel and dime the edit, chances are that they don’t see the value you bring to it anyway…take the shooting fee and let it go.
Bottom line is that on this topic, I have always been with Walter. We get compensated for every hour we spend on a project. Our ‘artistic ownership’ isn’t the same as someone who writes a song on their own and records and performs it…it’s similar to someone who is paid to write a jingle based on prescribed conditions and an agreed upon fee structure.
All that said, whatever is in your signed contract is what applies. I just think that it’s important to understand that the current laws of image ‘ownership’ were not created with videographers that get paid hourly to acquire narrow- or single-use proprietary images in mind…
TimK,
Director, Consultant
Kolb Productions, -
With all due respect…that’s simply not true. Copyright law has been around since 1790. It was modified in 1909 primarily because of the rise in popularity of motion pictures.
It was extended and slightly modified in 1976 because of, and I quote from a 1976 House of Representatives report:
“Television, motion pictures, sound recordings, and radio were cited as examples (for the modifications). The (new) Act was designed in part to address intellectual property questions raised by these new forms of communication.”
So the notion that current copyright law is based on still photographers intellectual property rights from shooting photos in war zones is just not accurate.
I’ve read (and re-read) the entire copyright law and all it’s provisions. Nowhere does it mention a work’s journalistic merits as superceding creative ones. In truth, it’s the opposite. It covers:
…”original works of authorship fixed in any tangible medium of expression…including (and listed in order), literary works, musical works, dramatic works, pantomimes and choreography, pictorial, graphic, sculpture, motion picture and other audiovisual works, and sound recordings.
We’ve NEVER had a client even question our position (until they were 4 months behind on bills). We’ve never had a client (that wasn’t trying to get out of paying bills), stop using us because of our position. I know dozens of colleagues (video companies and photography companies) who retain copyright of their work, and not one of them has ever had a client leave because of it.
One of our good clients right now is a Casino that asked for all their footage about 3 years ago. (their parent company was going through bankruptcy reorganization). We said we’d give them the footage for a very reasonable buyout fee. It was the equivalent of about $250 per tape and amounted to a grand total of $6000. If they had to reshoot all that stuff, it would’ve cost them $100,000 or more. They declined. Guess what? They still use us today. In fact, our relationship is BETTER now than it was then!
I agree the footage and finished works we create have little or no additional value. But copyright law was written to protect you financially. And that’s just what we use it for.
Lastly, this issue has NOTHING to do with customer service. How can people claim it’s bad customer service to follow a law that was written over 200 years ago to protect creative works?
It is NOT holding tapes hostage! Period. Those of us who retain ownership of our tapes are not somehow lesser business people, or giving clients lesser customer service.
These forums are great, but lets stop the misinformation on this issue. There are obviously two differing opinions. Both can work for a business.
Chris Blair
Magnetic Image, Inc.
Evansville, IN
http://www.videomi.com -
Tim Kolb:
Our ‘artistic ownership’ isn’t the same as someone who writes a song on their own and records and performs it…it’s similar to someone who is paid to write a jingle based on prescribed conditions and an agreed upon fee structure.I forgot to add…copyright law does not distinguish between “types” of creative works. It doesn’t specify that someone writing, producing and directing an independent film has any more rights or privileges than a production company producing a corporate marketing video.
And in the case of music production…and specifically jingles… every jingle writer we’ve worked with charges a base fee for writing and production, then charges a “per use” or licensing fee based on markets the music will be used in. If it’s national, it’s quite a bit higher than if it’s regional. The licensing fee is typically for a period of time (usually a year). After the year is up, you re-license the music based on the markets. Some will structure it as a buyout, but many still base the rate on the size of client, number of markets etc….which is completely fair.
Chris Blair
Magnetic Image, Inc.
Evansville, IN
http://www.videomi.com -
[Chris Blair] “It was extended and slightly modified in 1976 because of, and I quote from a 1976 House of Representatives report:
“Television, motion pictures, sound recordings, and radio were cited as examples (for the modifications). The (new) Act was designed in part to address intellectual property questions raised by these new forms of communication.”
So the notion that current copyright law is based on still photographers intellectual property rights from shooting photos in war zones is just not accurate.”
Yes, Copyrights have existed since the 1700s, but the image author ownership interpretation we use today is based on the Copyright Act which was actually passed into law in 1978 (it began its journey through the legislative process in 1976).
Earlier, the American Society of Magazine Photographers wrote a manifesto named “Declaration of Conscience” in the mid/late 1960s and Time, Inc. fought such ownership rights quite hard for years. Photographers did not clearly own their own work in the daily operation of business in those days (even if the law that existed at that time may have mandated it in concept) and they decided to draw a line in the sand.
War zones was an example and an attempt to illustrate the concept, sorry if it was a little limited.
Bottom line is there are legal rules and there is the spirit of what you’re doing I guess. Drawing a line of one way or the other being unethical is not useful. Under law, a copyright can be shared by those who took part in creating the work… ‘Paying’ for the work is participating in my estimation. The work wouldn’t get done if I didn’t get paid…
I’m familiar enough with the law to know that you are certainly within your rights to hold on to the rights to the source footage… I just interpret what ‘participation’ means differently.
I’ve given up source tape to clients in the past. I just feel since they paid for my fees, my expenses, my tape stock, my subcontractors, any resources that had to be amassed, travel, overtime, etc etc…and the image is of something they own or hold rights to as well…(chuckle)…what else is there to own?
TimK,
Director, Consultant
Kolb Productions, -
[Chris Blair] “And in the case of music production…and specifically jingles… every jingle writer we’ve worked with charges a base fee for writing and production, then charges a “per use” or licensing fee based on markets the music will be used in. If it’s national, it’s quite a bit higher than if it’s regional. The licensing fee is typically for a period of time (usually a year). After the year is up, you re-license the music based on the markets. Some will structure it as a buyout, but many still base the rate on the size of client, number of markets etc….which is completely fair.”
OK, my example of the principle, not all jingle houses work the same way, but very well…let’s carry that similarity forward…
… then do you only allow your clients to use their finished video for a year?
Do you charge your larger clients a higher hourly rate for similar work?
How many businesses work this way? I don’t have to bring along last year’s income tax return when I go grocery shopping so they can determine what to charge me for the same stuff everyone else is buying…
This isn’t as clean cut as it seems and interpretation of this concept is all over the place. I do understand that even though most of us do everything we do because we’re hired to do it, treating an end product as a ‘work for hire’ remains some special contractual circumstance. Does no one else see that as odd once they can set aside their own self-interest for a moment and look at it objectively?
TimK,
Director, Consultant
Kolb Productions, -
Copyright is, by definition, held (owned) by “the creator” of a work. And, if determination of a sole creator is impossible, then shared copyright (ownership) applies.
Determination of a sole creator in most collaborative efforts is virtually impossible, and determining who owns what in a shared copyright situation is also never easy, so, agreements (contracts) are written before the fact, specifying in advance who gets what, even if it’s done in defiance of the prevailing copyright law.
If you read between the lines, these agreements essentially say, “though copyright law may specify “x,” if you want to work on this project with me, you have to agree to “y,” with “y” being that I hold all rights to ownership.
You can argue til the Cows come home, but in any situation in which ownership is not specified in advance, some form of joint ownership will almost always apply. So, there is no right and no wrong, and arguing to the contrary is futile.
David Roth Weiss
Director/Editor
David Weiss Productions, Inc.
Los AngelesPOST-PRODUCTION WITHOUT THE USUAL INSANITY ™
A forum host of Creative COW’s Apple Final Cut Pro, Business & Marketing, and Indie Film & Documentary forums.
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[Tim Kolb] “… then do you only allow your clients to use their finished video for a year?”
Yes, often times, we do. Or 18 months. Or two years. Or 13 weeks. It varies.
One of the things to keep in mind that while a producer or production company may own and retain the rights to a production, often times that is not all inclusive… and the production contains elements that the producer does not hold lifelong rights to.
Two of the most prominent of those elements are music rights, and acting performances.
If we produce a broadcast commercial (which is our chief stock in trade), chances are the music track is specifically paid for and licensed for that particuar production. If we were to provide all of our source materials for that production to a client, and they were to take all of that to another production company for another cut and re-use the music track, they would be in violation of the specific secured rights to that track.
Likewise, talent that appears in our spots (especially represented and/or union talent) are hired for a specific production for a specific market and usage for a specific period of time. It’s hard for clients (who come from very different worlds) to understand that although we could hand them a raw tape, that doesn’t necessarily mean they own the rights to use what’s on them. It’s impractical to hand a stack of agents’ and union paperwork to a client and explain to them that “Talent A” was a buyout but “Talent B” is usable for any production but only for 13 weeks and that “Talent C” is available for a year but only in such-and-such market and that the voiceover guy can’t be used again at all because he has subsequently signed an exclusive agreement with a competing client…. and so on and so on. Clients just don’t think that way, understand it, or be expected to comply.
That is one reason that we retain ownership of all matierials, including raw footage… and clients’ contracts plainly state that (as well as limitations on their final production, if any… such as air life).
Of course if a client did use some of those materials improperly, technically it would be them in violation, not me… but I guarantee you it would come back to bite me. We have very good relationships with the agents, union reps, and talent that we have worked hard to cultivate… and we do not want to jeopardize those.
In 12 years we have never had a client question that policy… knock on wood.
T2
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Todd Terry
Creative Director
Fantastic Plastic Entertainment, Inc.
fantasticplastic.com
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Hi Todd,
On spots with talent performances, I have the same situation. I understand this system more with talent performances as it’s akin to having the talent’s likeness ‘perform’ every time the spot runs. Licensed music is also along the lines of what Chris mentions with jingle writers, etc…
I’m not in favor of everything being ‘buyout’ by the way… There are just some areas where I think that sometimes raw footage control is used to control where the client edits and ‘copyright’ is used as the rationale.
If there isn’t licensed music or actors involved and it’s completely content of a client’s property…I have a difficult time understanding what other purpose there could be in retaining rights to an image that can’t be used on anything without the client’s consent anyway, other than just restricting the client’s ability to take their footage and their revenue elsewhere.
TimK,
Director, Consultant
Kolb Productions, -
It’s not a legal issue. It’s somly a matter if you wanna keep working with that client or not.
Totally up to you.
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Tim Kolb:
If there isn’t licensed music or actors involved and it’s completely content of a client’s property…I have a difficult time understanding what other purpose there could be in retaining rights to an image that can’t be used on anything without the client’s consent anyway, other than just restricting the client’s ability to take their footage and their revenue elsewhere.In reality, if you own the copyright, you CAN use the footage elsewhere. I’ll give you two examples from personal experience. I have a friend that worked on a corporate video for a large multi-national company that later became mired in the accounting scandals from a few years back. The video prominently featured candid comments from this company’s CEO as he patrolled the floors of their office building. When the scandals hit, virtually all the news networks and major news magazines came a callin’ wanting to buy this footage. There was no work for hire or non-disclosure agreement attached to the project’s contract. So guess what, he sold it to a news magazine program for a very healthy sum.
So here’s a case where…when the video was shot, who could have guessed it had ANY other potential value. But because he kept client tapes and worked under the premise that he owned copyright, he was able to legally sell them and make money. The company that hired him couldn’t do a thing to stop him.
Early in my career I worked for Hammond Productions, which at the time was owned by Tom Hammond, who’s now an NBC sportscaster. That company specialized in thoroughbred videos because Hammond is a renowned expert on equine genetics (he has a masters degree in it from LSU). That company produced promotional videos for stud-farms, who would send them to horse owners looking to breed their mares with prominent stallions.
We’d shoot video of all their stallions (sometimes dozens), posing, running in the fields etc. Most were unknown. Occasionally, a previously unknown (but well bred) stud who’d had a crappy race career, and hadn’t produced many winning offspring would sire a top racehorse, like a Kentucky Derby or Breeders Cup winner. When this happened, the footage of that stud, previously sitting on a shelf unused, would become hot property. ESPN, NBC, the BBC and others would come calling wanting footage of this stallion and the stud farm because no decent race footage existed (unless you wanted to show him finishing 10th).
Hammond owned the footage…not the owner of the stallion….not the owner of the stud farm. They made a nice chunk of money every year I worked there doing this.
So you never know when the stuff you shoot will suddenly have “value” to someone out there.
Chris Blair
Magnetic Image, Inc.
Evansville, IN
http://www.videomi.com
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