HUDL copyright infringement issues

[Timothy Nordmann]

I work in the midwest.

It seems we have a different understand of when your work is automatically considered work for hire.

You wrote that if you are not salaried you are considered work for hire, when it seems in fact the salaried employee is the one who’s work is automatically considered work for hire, not the independent contractor.

If you are an employee your employer automatically owns the copyright, but that relationship does not exist when you are a freelancer being commissioned to do work.

If you are an independent contractor then the rules and requirements (the ones I posted earlier) for your work to be considered work for hire need to be applied. Including a mutual agreeable contract.

Also your work would have to be meet ALL three of the following criteria to be considered a work for hire.

The work must come within one of the nine limited categories of works listed in the definition above, namely (1) a contribution to a collective work, (2) a part of a motion picture or other audiovisual work, (3) a translation, (4) a supplementary work, (5) a compilation, (6) an instructional text, (7) a test, (8) answer material for a test, (9) an atlas;

The work must be specially ordered or commissioned;
There must be a written agreement between the parties specifying that the work is a work made for hire.[1]

Here are my sources for you to review.

https://www.copyright.gov/circs/circ09.pdf
https://en.wikipedia.org/wiki/Work_for_hire
https://copylaw.com/new_articles/wfh.html
https://www.keepyourcopyrights.org/copyright/rights/work-for-hire

[Timothy Nordmann]

To clarify. I am not employed by a company and I am not being hired by a company as an independent contractor to do work. I am a sole proprietor doing work directly for a customer.

[Mark Suszko]

From the first paragraph of your Wiki reference:

A work made for hire (sometimes abbreviated as work for hire or WFH) is a work created by an employee as part of his or her job, or a work created on behalf of a client where all parties agree in writing to the WFH designation. It is an exception to the general rule that the person who actually creates a work is the legally recognized author of that work. According to copyright law in the United States and certain other copyright jurisdictions, if a work is “made for hire”, the employer—not the employee—is considered the legal author. In some countries, this is known as corporate authorship. The incorporated entity serving as an employer may be a corporation or other legal entity, an organization, or an individual.[1]

You listed a bunch of qualifiers from section 1 of the document that seem to bolster your point…

but the key I think you missed was this part:

The first situation applies only when the work’s creator is an employee, not an independent contractor.

This is in line with all I have been told on the subject.

IF you are doing business as a video production company, it is more likely that you are an independent contractor and thus your project would fall under the heading of WFH, Again from your wikipedia reference:

Employer–employee relationship under agency law
If a work is created by an employee, part 1 of the copyright code’s definition of a work made for hire applies. To help determine who is an employee, the Supreme Court in CCNV v. Reid identified certain factors that characterize an “employer-employee” relationship as defined by agency law:
1 Control by the employer over the work (e.g., the employer may determine how the work is done, has the work done at the employer’s location, and provides equipment or other means to create work)
2 Control by employer over the employee (e.g., the employer controls the employee’s schedule in creating work, has the right to have the employee perform other assignments, determines the method of payment, and/or has the right to hire the employee’s assistants)
3 Status and conduct of employer (e.g., the employer is in business to produce such works, provides the employee with benefits, and/or withholds tax from the employee’s payment)

So I read the bolded parts as saying; If they supply you with gear and tell you specifics oh what and how to shoot, you’re probably an employee… if you are the one with a video company, going to the games and shooting with your own gear and making all the key decisions on how the video is made, and they are just giving you a check, and you are not on salary there or working in their offices and getting benefits and doing “other duties as assigned”…… you may be a redn-, I mean, a Work-For-Hire.

Now I will stipulate that, to my mom’s eternal regret, I am in fact not a lawyer. But this is how I’ve always read the language on this topic, and it is how everybody I’ve ever spoken to on the topic sees it. However, I’m willing to be proven wrong, because that’s how we learn. No hard feelings meant or taken.

But if I’m right… and you try to sue someone using the proposition you own what you gave the client – you might be in trouble, is my inexpert opinion.

[Timothy Nordmann]

It seems as if were having a failure to have a meeting of the minds here. There obviously is no employer employee relationship as none of the criteria you listed were met. In order for an independent contractor to be considered work for here there has to be a contract and in this case there was no contract. I appreciate your input, but it seems we are both at an impasse, and that is ok. I appreciate your input anyway. It is rare that I get to exchange thoughts with other professions and I am very grateful for that opportunity.

[Mark Suszko]

OK, well…. good luck with that.

[Roger Van duyn]

Some battles really aren’t worth fighting. Even if you win them, they can damage your reputation and make you seem like someone that’s hard to work with. In business, you want to avoid acquiring a bad reputation, especially when you really are a good guy.

I don’t make much money shooting sports either. Long ago when I worked in retail, work like my shooting sports is called a “loss leader.” You offer something at a low price to bring customers into the store and they wind up buying some other stuff too.

Low paying sports gigs are really just part of marketing my business. I get noticed by business owners that are members of the school booster clubs etc. It’s a lot like doing pro-bono work for local charities. People see you around, form a good impression, and a small percentage either book you or give your a positive referral.

Roger

[Mark Ahrens]

This is the way that sports (especially Football) is headed -well, actually, it’s there already.
The best bet is to set your price where you are comfortable with surrendering the footage;
get friendly and professional with the coaching staff (even if a parent is paying);
assure them of your integrity and the benefit of uploading original HD footage (720p in the end) to Hudl;
have them set you up as an admin coach so you can upload the footage (couldn’t be easier using Hudl Mercury)
-The difference of SD to HD will not be lost on them
-Additional option – create a 5-10 second Ad (still or video) in same format as the video from cam and add that to your card before uploading; move it to the top of the playlist after it’s uploaded – this way it’s the first play they see when viewing your footage and you can plug editing and other coverage. The highlighting tools on Hudl are okay but not what we can do.
Make an icon for your ID on Hudl so the players get familiar with your logo when you share footage of an event.

Ya gotta roll with it. IMO.
DVDs suck anyway and there are few BluRay takers in my experience.
Watermarking makes it a pain.

[Timothy Nordmann]

Mark I agree with everything you said. You had a lot of great ideas.

I do have an update to offer. For better or worse this is how the situation panned out.

A customer tried to coerce me into giving him a good price on all the game tapes and if I didn’t give him the price he demanded he threatened to download them off HUDL for free.

Long story short I emailed and phoned HUDL’s legal department and a phone call to the school’s athletic dept and after a long back and forth they HUDL and the coach agreed to take the videos down.

I really wouldn’t of said anything about it but when a potential customer threatens to steal something I had to act.

Thanks again for your input Mark, I like it.

[Andre Anthonio]

This is an older thread but the topic is still relevant to which I would like to add a few points . I’ve been recording football games for almost 10 years, independently. That is, the League allows me to film the games. But, they’re not paying me. Instead, my relationships/clients are the parents and coaches. Selling game DVDs and making highlight videos.

Business was good in the earlier years. It’s all about offering a good product and building relationships. But then, a competitor has stepped in recently and starting filming the games, too. He got his foot in the door by one or two coaches who were able to secure him at a lower rate than my own. I didn’t mind at first because my clients were secure and also the quality of my video is much better. Specifically, I shoot on a study tripod with a Canon XHA1S. But then, the competitor, with only a small handheld camera (on a mini tripod), starting (and still is) uploading the full games (whistle to whistle edits of the play) to YouTube and for FREE. This killed my business at every level. Even though the quality was/is not the same, parents were/are less willing to buy game DVDs from me if their kid can see the game on YouTube for free. I sent the Competitor a message asking him to deliver his product via DVD or a closed system, but he continues to upload to YouTube. He, in fact, has killed the market. Bad for me, and him too…

I wanted the League to step-in but it has its reasons for not picking winners and losers. And, it’s probably better like this for me/us because some Leagues in my area won’t even allow you to film a game from a professional camera. For example, they won’t allow you to enter the stadium which is another very good conversation: Specifically, how does the law view and/or change the extent to which we have the right to film a game? Is the game we film a “public” or “private” event. In my case, the League is put on by Kiwanis, probably more public. The other AYF League, is probably more private. The point is, can independent freelancer’s like me go and film any sporting event and try to make business someway, or upload the event to a public forum like YouTube? Or, do you need “the express written consent from the League” like the NFL?

In my opinion, not being a lawyer, I believe the League is the legal author of the content that you/we film. I mean, you/we can say we are the owners of the video because we produce the content but we are limited to some extent, I think, to claim Copyright infringement over our video products. If someone with more experience can chime on this it would be greatly appreciated.

Anyway, the overall situation and, more specifically, the situation of me losing business has really caused my a lot of emotional trauma. Now, though, I’m fighting back and feeling a little better. Specifically, I’m now also uploading the videos to YouTube for free. But the video is heavily watermarked with my own logo and also the League’s. But, the logos are not so obtrusive, meaning that they don’t get in the way of the principal viewing areas because, in part, we are filming without a lot of zoom, so that the coaches can see all the players on the field. In addition, I’m still offering game DVDs (without watermarks) because some parents, and even coaches, prefer to view/study their games on DVDs. You don’t need an Internet connection. And, on top of these two options, I’m also offering the games (no watermarks as well) on HUDL for my advanced clients who know the benefits of HUDL.

Regarding HUDL, it’s a great tool. But, it’s purpose is not to ally with people like us. They don’t care about us. HUDL only cares about the video. How they get it and from whom is irrelevant. What’s more, when they have it, they own it! And yes, HUDL account users can download our video. What’s worse, the HUDL logo goes on it. So, you can either watermark it before it’s uploaded, which your Clients may not appreciate. Or, you can let it go clean. Either way, you have to be willing to lose control. And, remember that every version of your video requires another render and another upload. And, only one video can go up at a time. So, if your like me, uploading 6-10 games per week, it can be quite a task, and especially to get the video up and out FAST. For us, we’re at the stadium for 10 hours on Saturday. By Sunday, we have the early games up on HUDL and YouTube. By Monday afternoon, all the games are up. But, it’s really grueling and the payday in the end doesn’t make it easily worth it.

In my case, I do it because I do it. Which is another way of saying I need it. Something coming in is better than nothing. I think videographers like us have to be humble too because it’s very tough entering a market when your relationships with the League organizers is not the best.

More about HUDL, I’ve been able to make it work for me (so far) because I have all of the coaches of the League coaches in one account AND I control the emails and passwords. So it shows as a team account, but really all of my coaches of different teams are the same account. What’s more, as part of my service, I assign the email addresses AND passwords that the coaches have to use to access the video. I do it through my website since I have unlimited email hosting. This way I can bring paying clients in and non-payers out. More important, I can see who and when is making highlight DVDs through HUDL and “I think” I may be able to see who is also downloading the video. This because the messages from HUDL are coming to me. Not the users. Because they’re may damn emails!

And so, the bottom line, I am still surviving. Not making a ton but my reputation is important too. BUT, it comes at the expense of more work. More uploads. More edits. It’s tough. But, I think I can win in the end because I don’t think my competitor is going to be willing to continue week after week to maintain the few clients has that are probably or will likely be struggling to pay him over the long term (thanks to good ‘ol me).

Hope this is helpful. I’m more than available to discuss further and without conflict since I’m in an international market outside the US. No competition worries.