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If a client does not pay, do you own?
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[Chris Blair] “I’ll add that video and film footage is covered under the same intellectual property laws that cover still photographers.”
Chris,
That’s an oversimplification. Intellectual property law is not so simple or clear cut that one rule applies to all cases simply because photography is involved.
I was discussing this very issue, in fact, this very thread earlier in the day with an IP attorney who’ll be joining Franklin McMahon and myself on an upcoming Cow Business & Marketing podcast, on which we’ll discuss this and similar “creative rights” issues. You should tune in to the podcast. I think you’ll find it quite informative and perhaps you won’t be quite as certain about what you’ve written above.
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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David Roth Weiss You should tune in to the podcast. I think you’ll find it quite informative and perhaps you won’t be quite as certain about what you’ve written above.
I realize there are many complications that could be involved in these issues, and it’s also important to point out that attorneys that handle intellectual property cases don’t even agree on these issues.
We consulted with an attorney on the Casino issue and in our case…in the absence of an agreement or contract stating otherwise, we owned the tapes and footage, they owned what they contracted us to do, which was create television commercials and marketing videos.
Naturally, we could not use that footage for other purposes, but we also were not obligated to turn over the raw footage for them to take to other production companies to create new projects.
Here’s the analogy. A large audio sound facility mixes a complicated sound track for a corporate marketing video. It includes dialogue shot on location, voice-over, licensed music, and hundreds of sound effects provided by the sound facility. Does the client own all of that raw material? Well heck no! They own the finished, edited sound track. The sound facility owns all the raw elements that they created or provided.
When we shoot footage for a client, we don’t just set up a camera, point it and hit “record.” There’s a ton of conceptualizing, pre-production, and professional input that goes into creating those images. We also create multi-layered motion graphics for these clients. Do they own all the elements (images, project files etc.) that go into producing the final animation? I think not.
Each case can be different depending on the circumstances of how the project is structured. But the key issue here is “in the absence of an agreement that stipulates ownership of the raw footage.”
Chris Blair
Magnetic Image, Inc.
Evansville, IN
http://www.videomi.com -
I actually found an explanation our attorney sent us to answer our questions about ownership of raw footage we’ve shot for clients. They excerpted it directly from U.S. copyright law, which most multimedia works fall under when dealing with intellectual property:
You should not assume that you own the copyright if you pay an independent contractor to create the work (or part of it). In fact, generally the copyright in a work is owned by the individual who creates the work, except for full-time employees working within the scope of their employment (“work for hire”) and copyrights which are assigned in writing.
The copyright law also includes another form of “work for hire,” it applies only to certain types of works which are specially commissioned works. These works include audiovisual works, which will include most multimedia projects. In order to qualify the work as a “specially commissioned” work for hire, the creator must sign a written agreement stating that it is a “work for hire” prior to commencing development of the product
Our attorneys breakdown of this was that if a client hires a production company to create a video without a contract specifying ownership of the project, or a written agreement that it’s “work for hire,” the production company legally owns the copyright to NOT ONLY the raw materials, but also the finished work!
We also own a great book on intellectual property law for multimedia and it states the EXACT same thing….word for word in it’s text. It’s called
Intellectual Property Law Primer
for Multimedia DevelopersCopyright 1994 by J. Dianne Brinson and Mark F. Radcliffe
I had forgotten our attorney’s advised us that we also owned the finished work as we were only concerned about the raw tapes.
So I’d be very interested to hear other Intellectual Property Lawyers explanation of how the reverse could be true, when it’s written in black and white in the law itself.
Chris Blair
Magnetic Image, Inc.
Evansville, IN
http://www.videomi.com -
“Naturally, we could not use that footage for other purposes, ”
If you own the copyright, you can use the footage in other projects. You can even sell the footage to their competitor if it came about, kiss the original client good bye though. I would think the only limiting factors would be how the model release is worded if you had talent on screen.
I used to use a model release that essentially gave me unlimited use. Mind you, I wasn’t using union actors either.
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Yeah but I wouldn’t do that to a client. The only reason I’d want ownwership is to insure we get paid and so that the client doesn’t take our ideas to another production company to emulate it for a cheaper rate.
We’ve actually had that happen. A regional ad agency had us shoot for several days for a client. Then had us design a graphics package and cut the initial spots for a TV campaign. They requested the raw foogage and said it was “standard practice.”
Being eager, stupid and naive, we gave it to them. A month later, they’re editing with a competitor that charges about half what we charge, copying our graphic look, After Effects comps, using our footage etc. It sucked. This competitor couldn’t have designed the look and feel of the spots in a hundred years, but here they were reaping the benefits of a long-term campaign based on our designs, photography and concepts. They went so far as to submit it for Addy Awards (which it won), and took credit for it!
Chris Blair
Magnetic Image, Inc.
Evansville, IN
http://www.videomi.com -
[Chris Blair] “Being eager, stupid and naive, we gave it to them. A month later, they’re editing with a competitor that charges about half what we charge, copying our graphic look, After Effects comps, using our footage etc. It sucked. This competitor couldn’t have designed the look and feel of the spots in a hundred years, but here they were reaping the benefits of a long-term campaign based on our designs, photography and concepts. They went so far as to submit it for Addy Awards (which it won), and took credit for it!”
Was this recently, or when you first started your business?
Michael.
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This was over a decade ago when we were eager for business and would do just about any job and agree to just about anything clients wanted.
Chris Blair
Magnetic Image, Inc.
Evansville, IN
http://www.videomi.com
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