ownership of footage

[13]

Unless other wise specified in the contract I say you own it. But with that you also cant go use that footage for anything that my be damaging to the client, like using that footage to in a video for a competitor.

If the client wants the master footage then, have that specified in the contract. Also make sure that you add an additional fee onto your services. If they agree and pay the added fee, they you literally give them the master tapes.

[Gary Chvatal]

I agree…if they bought a completed show from you…thats all they get. You own the raw footage. Of course, they can buy the footage if you’d like. I suppose you could give it to them but you are not obligated to hand it over unless you are contractually obligated to do so.

[Brendan Coots]

This depends on the language in your contract, but generally speaking when you do a work for hire it is assumed that the paying customer owns the rights to the work once she has paid you in full.

If a client paid you to shoot a bunch of lovely footage of, say, the Golden Gate Bridge for a tourism video, and you turned around and used that footage for another project or even sold it as stock, you are dilluting the value of the original work they contracted you to create for them. In a court of law, the judge would probably side with the client UNLESS you have a contract that very clearly indicates you hold onto all copyright and, more importantly, distribution rights of the footage. Problem is, most clients would strongly object to that and rightfully so since they are paying you to create original works for their use only.

Brendan Coots
Splitvision Digital
http://www.splitvisiondigital.com

[Mike Smith]

I guess it turns on just what your role is, how you are engaged, and whether there is any documentation.

Some of the current US law on this is at
https://www.copyright.gov/title17/92chap2.html
https://www.copyright.gov/circs/circ9.html

As I understand it, the default position as far as moving image work is concerned is that the body or person who makes the arrangements for the work to be produced – typically the producer – is regarded as its author and first copyright holder. If you are engaged as a producer to produce a piece, likely the body commissioning you will want an agreement on transfer of rights on completion or payment. As producer, you might well retain original copyright in the unedited source footage, unless your contract specifically transfers this right.

If you are engaged as video crew to film, it seem likely that the producer / author is the body or producer who hires you, and you are much more likely to be regarded as engaged in “work for hire”. The rights in the footage would belong to the producer. If they hire and pay talent or front-of-camera stuff, or if they organize the travel / permissions etc, their claim to be author and copyright holder would be very strong. You’d need their permission to use what is their copyright material.

But if you are engaged as producer and handle the talent, permissions, dates, crewing and everything else, then your client would be likely wanting to make sure they get an assigment of rights, or else the footage could be deemed to be your copyright.

Or if your customer simply called you and commissioned you on a “we need some shots of xxxx – can we have them by Friday please” basis, then you might be able to argue that the sequence of shots you (organized, created and) supplied was your initial copyright.

This might be a little different from a stills photography, where the photographer may well act as the producer, organizing the shoot, props and settings, models and costume – and then may well own the rights until / unless otherwise assigned / licensed as part of the commissioning contract.

Of course this isn’t legal advice – you’d have to seek an opinion on that.

What would be the plus in making the customer unhappy by seeking to use the stuff they paid you to film for some other purposes?

[David Roth weiss]

[Gary Chvatal] ” agree…if they bought a completed show from you…thats all they get. You own the raw footage.”

Bonnie, Z, and Gary have opened an interesting discussion here that is at the very heart of what we do as filmmakers…

When we accept a job it really helps to know what we as filmmakers are really being hired to do. Or, another way of looking at the same issue would be to say that, as filmmakers, each of us, before undertaking any job, must take the bull by the horns to make absolutely certain that the job is accurately and precisely defined.

For example, Gary says, “if they bought a completed show from you…thats all they get.” This business model assumes that the filmmaker or his/her company is paid to deliver completed works, such as a finished tape or DVD. Meanwhile, others who do the very same job might define that job in a completely different way. As an example, the business model that I use in most circumstances assumes that I, or my company, are paid fees to perform services in the creation of projects commissioned by and owned by another entity (i.e. another person or company). So, both jobs possibly yield the same completed program using exactly the same methods, yet the business models and definition of the jobs performed are very different.

The definition of the job that we choose can have meaningful implications that impact our businesses in many ways. Besides the issue of ownership rights to the raw footage, there could be liability and other legal issues, as well as possible tax implications, all of which could be completely different depending on how we define our job or our business.

So, how do others of you define your role as filmmakers? What is your business model?

David

David Roth Weiss
Director/Editor/Post-production Supervisor
David Weiss Productions, Inc.
Los Angeles

POST-PRODUCTION WITHOUT THE USUAL INSANITY

[Brendan Coots]

To add to my original post on this – My studio DOES have an item in our contract that states we retain all master tapes, project files etc and the client is only entitled to the final output of the contracted works. The justification is that things like project files expose our specially developed workflow, custom techniques etc. and are therefore considered proprietary information. They own the copyright/distro rights on the work, but we own the originals as proprietary. A lawyer’s input was obtained in drafting this contract, so the distinctions should be legally sound.

Of course this is not quite the issue as you asked about, but it does highlight the distinction between what ownership you can and cannot preserve as the artist-for-hire.

Brendan Coots
Splitvision Digital
http://www.splitvisiondigital.com

[Bruce Bennett]

[Mike_S] “As I understand it, the default position as far as moving image work is concerned is that the body or person who makes the arrangements for the work to be produced – typically the producer – is regarded as its author and first copyright holder.”

Maybe you’ve heard differently from a different lawyer, but we have had 2 different lawyers talk 2 different times at our local MCA-I chapter meetings about copyright. Each time, both lawyers said, “He or she who creates owns copyright.” So, for moving images/video/film, still photographs, tattoos, graffiti on walls, etc. it is the actual person who created the work. For this example of moving images, it is the Videographer who owns copyright because it is the Videographer who created the image – not the Producer and not the client. Typically a Producer/Director or client gets the copyright from the Videographer is through a “work for hire” agreement. To be sage, each person who works on the project (i.e., talent, Videographer, grip, DP, make up artist, etc.) should sign such an agreement.

Bruce Bennett,
Bennett Marketing & Media Production, LLC – http://www.bmmp.com

[David Roth weiss]

[Bruce Bennett in Madison, WI] “both lawyers said, “He or she who creates owns copyright.””

While that might be true, one could easily dispute the question of who the creator actually is…

For example, you’re the cinematographer on a TV show and you argue that you have created the footage, thus you own the copyright to that footage. However, what if the show credits read, “Created by Bilbo Jones?” Bilbo would argue that he created the entire series, and thus his claim to copyright he would argue should trump your own. Yes???

David Roth Weiss
Director/Editor/Post-production Supervisor
David Weiss Productions, Inc.
Los Angeles

POST-PRODUCTION WITHOUT THE USUAL INSANITY

[Steve Wargo]

I was recently called as a witness in a lawsuit regarding copyright ans ownership of footage. The largest IP (Intellectual Property) law firm in the state of Arizona handled the case and here is what they said.

If you are a 1099 contractor, you own the copyright when you shoot it. It IS NOT transferrable.

If you are a W-2 employee, your employer owns the copyright.

Now, what does the client own? The client (the one who pays for the shoot) owns to right to possess and to use the footage as they see fit, forever, ONCE THEY PAY THE BILL. The use transfers when the bill is paid. Not before.

So, if someone hires you to shoot their commercial and they don’t pay you, you have the right to legally block the use of the footage.

Also, just because you own the copyright to the footage, does not mean that you have the right to use that footage for anything other than demonstration purposes.

One the footage is paid for, the useage rights belong to the payee and you MUST ask permission to use it for demonstartion purposes.

There’s more but I am going to stop right there.

This is merely a quote and does not constitute giving legal advice, only quoting a source of information according to US copyright laws. Your government may vary.

Steve Wargo
Tempe, Arizona
It’s a dry heat!

Sony HDCAM F-900 & HDW-2000/1 deck
5 Final Cut Pro systems
Sony HVR-M25 HDV deck

[Steve Wargo]

A client can copyright the finished work product. The finished product is different than the original footage. Example: All of the old TV shows that you see on Nickolodeon or the $3.99 rack at Walgreens are located in a vault at UCLA. They are all in the public domain. A distributor checks the masters out, like at a library, and preps them for distribution. They add a music or effects track and then copyright the NEW master tape and subsequent copies. Completely legal and they don’t pay a thing for the original recording except for admin costs.

What shooter would ever try to claim the copyright to shots he got for a reality program or a documentary shot for a production company?

When we shoot something, we always offer the client the original recordings. We also tell them that we have climate controlled, firewalled storage versus their file cabinet drawers. Transporting materials is dangerous. We have had clients insist on taking their stuff and some employee working for them loses it, steals it, leaves it in the heat or cold in their back seat, forgets it at Starbucks, someone simply throws it away because it obviously won’t play in their VHS player. They see the word Beta and toss it.

If the client insistes, have them sign for the materials and include a warning about what will happen to their tapes if they do.

One client went to Home Depot and bought a $379 gun safe so we could store their stuff here.

When they insist on taking it, they’re probably shopping you around anyway. Let them learn the hard way but make sure that you give them ALL of their original stuff or you’ll get blamed for anything that’s missing.

As stated by someone else earlier, refuse to give them the project files because of the reasons stated. It’s proprietary information and secrets. It would be best if you took the time to investigate this thoroughly and have a proper contract ready for them to sign on agreement to do the project. Make sure that it is slanted toward keeping their best interests in mind.

Steve Wargo
Tempe, Arizona
It’s a dry heat!

Sony HDCAM F-900 & HDW-2000/1 deck
5 Final Cut Pro systems
Sony HVR-M25 HDV deck