Owning the raw footage

[Nick Griffin]

Emre-
Your friend should ask to be shown the clause then when shown give them what they’re asking for. Considering the way Federal procurement works it’s extremely likely that this wording exists in something he signed to get the gig. Sad but true.

[Richard Cooper]

When my company did a shoot for the US State Department it was stated in the contract that all the RAW footage was to be turned over to them. This was plainly in our contract and was no surprise. When I discussed it with the State Department Producer I was working with, he explained that ALL the footage, once the project was complete, was to become “public domain”. Which made it fine for me to use later if I wanted. So I kept a set (XDCAM Hard drive files) here in the studio. I think this is probably the norm.

But this is just one project so take it for what it is. The Government is all about dotting the i’s and crossing the t’s. I am sure that there is some stipulation in the contract somewhere. If not, bring it up and see what happens.

Richard Cooper
FrostLine Productions, LLC
Anchorage, Alaska

Everyone has a story to tell.
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[Tim Wilson]

[Richard Cooper] “. I am sure that there is some stipulation in the contract somewhere.”

There may not be. Whether or not it’s in the contract, it’s a stone cold fact that is beyond any negotiation. The People paid for the footage, and they can do with it whatever they wish. It’s the law of the land.

In fact, the folks at the agency might be jolly old souls and write up a contract waiving The People’s rights to ownership, but it doesn’t matter. They’re not the agency’s rights. That clause of the contract would have no legal force.

Three bits of good news with government. One, every job has a built-in referral. Once you work with one agency, all kinds of doors open. Two, even though it won’t be fast, you will ALWAYS get paid.

Three: you can get paid more than once for your work.

Because yes, among the people who gets to do with that footage whatever they want is YOU. The footage is in the public domain, but you still have the rights to any derivative work using it. You could make a commercial with it for one client, use a screen capture for another client, etc.

I wouldn’t worry about using footage that theoretically might be used by a lot of other people. I worked for quite a few agencies over the years, and never saw any of my stuff wind up anywhere else.

That said, you do indeed have access to footage shot by EVERYONE who was working on the public dime. You have to pay for the duplication, and the process here is really REALLY slow, but it’s egalitarian. For example, look into all the public domain footage available through the Library of Congress. Remarkable.

I found the experience of working with these agencies so rewarding, and the occasional opportunity to repurpose some of the footage so convenient, and the access to so much that I never considered for a second that it was a downside to lose the exclusive rights to raw footage.

tw

[Emre Tufekci s.o.a.]

Thank you everyone for your responses, I will forward my freind to read this thread for more updates.

Emre Tufekci
http://www.productionpit.com

[Chris Blair]

Tim Wilson: The People paid for the footage, and they can do with it whatever they wish. It’s the law of the land.

This has been dissected and discussed a bunch of times and in the absence of a contract stating specifically that the paying party owns the footage, this just isn’t true.

There are numerous books on media law written by intellectual property lawyers that spell this fact out.

Just because somebody pays for a video to be produced, it doesn’t automatically give them the rights to the raw footage. Still photographers use this law to their advantage all the time. They shoot photos for a client, they license specific images for a print piece or an ad, but they retain ownership of all the images and if the client wants to use a previously licensed photo for a different print piece, they pay another license fee.

The law if no different for moving pictures.

Now even with that said, as Tim points out, depending on the project and client there’s sometimes little advantage in enforcing this policy.

But I’ll give you an example of one where it was worth it. I have a colleague who shot video of Kenneth Lay (he of Enron fame) marching all through their Houston offices talking openly about how their company worked. The video was for a sales video. Lay boasted about their operations, their weather forecasters (who predicted weather patterns so Enron could move surplus energy to places that needed it in cold or hot weather) and went on and on about all kinds of operatoinal stuff. Enron didn’t have a contract stating they owned the footage and it was never an issue as the guy delivered the edited sales video and life went on.

Fast forward to the Enron collapse. Frontline or Nova or one of those news magazineS on PBS does an hour on the Enron scandal. They get their hands on the sales video and want the raw footage of Lay so they can show he knew ALL ABOUT the operational stuff at Enron when he was claiming that he didn’t.

They contact this guy, make him a fairly generous offer and he sells them the footage. Lay’s attorney’s object and threaten him, but guess what? They have no recourse. They didn’t have a contract showing they stipulated ownership of the raw footage, only one that showed the contracted to have a sales video produced, which the guy produced and delivered.

Intellectual property rights can get pretty complex but bottom line, it’s rarely an issue anyway. If you don’t want it to be one, put a line in your contracts stating you own the raw footage. You’re well within your rights to do so. If a client objects…so be it. Give them ownership in the contract and move on with the project. The changes of you making money from the footage are slim. The best reason to keep ownership is that it might give you leverage in getting paid someday.

Chris Blair
Magnetic Image, Inc.
Evansville, IN
http://www.videomi.com

[Emre Tufekci s.o.a.]

Thank you for the insight Chris, sounds a lot like the wall-mart incident.

Emre Tufekci
http://www.productionpit.com

[Steve Wargo]

If your friend is tired of the client calling him to do paying work, he should immediately tell them “No thanks”.

That will stop the phone from doing all that silly ringing.

Ever heard the phrase “shoot yourself in the foot”?

We hand it all over immediately, and always have. I don’t care what the law says. They paid for it. It’s theirs.

However, if you record the images and sound on your media, do they have the rights to that media?

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

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[Chris Blair]

Steve Wargo: However, if you record the images and sound on your media, do they have the rights to that media?

If you’re referring to the notion that if they paid for the tape, they own what’s on it…that too is a myth. Using the photography analogy…they also shoot on media, be it film or a digital card or a hard drive. Most photogs I know build the cost of those devices into their shoots. That doesn’t magically give ownership of the content on that media to the client.

Again…any issues can be resolved by putting one sentence in your contracts stating that you own the footage. Other points to consider:

1. The issue will come up so rarely in most businesses that it’s almost a non-issue anyway.

2. The potential financial gain is so small that again, it has little worth from a financial standpoint.

3. About the only reason to keep ownership is for leverage. Same as you shouldn’t release a finished video until you’re paid for it, keeping the raw footage gives you SOME leverage should you have payment problems with a client.

Chris Blair
Magnetic Image, Inc.
Evansville, IN
http://www.videomi.com

[Walter Biscardi]

[Chris Blair] “If you’re referring to the notion that if they paid for the tape, they own what’s on it…that too is a myth.”

I find that very VERY bad business sense. If the client is paying for the tape stock, they absolutely own it. I really don’t give a crap what still photographers have been doing for years. If you want to own the raw footage, well then you sure as heck better NOT be charging the client for the raw tape stock. I find that completely unethical.

[Chris Blair] “3. About the only reason to keep ownership is for leverage. Same as you shouldn’t release a finished video until you’re paid for it, keeping the raw footage gives you SOME leverage should you have payment problems with a client.”

So if you held the final master until payment (which we do with all new clients) then why are you holding the raw footage? What leverage do you gain once you’ve been paid for a job. Makes zero sense to me.

You all do what you want. I find it completely unethical to retain raw footage from a client if they have paid for the production and have paid for the raw tape stock.

As for the digital media question, the client should receive a copy of all raw digital media on a hard drive that they provide.

Walter Biscardi, Jr.
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Biscardi Creative Media

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[Tim Wilson]

[Chris Blair] “Tim Wilson: The People paid for the footage, and they can do with it whatever they wish. It’s the law of the land.

This has been dissected and discussed a bunch of times and in the absence of a contract stating specifically that the paying party owns the footage, this just isn’t true.”

Agreed re: everyday clients.

Agreed re: state and local governments, which are exempted from Title 17, Chapter 1, Section 105 of the US Code…although Florida and Minnesota have enacted similar statutes of their own under state law. California may have, but this is – not shockingly – ambiguous.

Re: federal agencies, read the aforementioned Title 17, Chapter 1, Section 105 of the US Code, which covers contractors.

To be honest, I did. I have a couple of things to say about that. One, be glad I’m an insomniac. Two, aside from being a little dense after you find it, the language is pretty easy to read.

Three, I have some corrections and clarifications to what I said before.

It turns out that contractors DO have negotiation rights for *civilian* agencies and NASA, but in the absence of an agreement, the default is that they retain all rights for the public domain. To assert your rights, you have to do so in advance, attach a form to the footage, etc. etc. And you might be denied.

And if it’s not specified in advance, forget it. You missed the bus.

Even if you get to retain copyright, here’s the rub. Under the Federal Acquisition Regulations,

The Government is granted for itself and others acting on its behalf a paid-up, nonexclusive, irrevocable worldwide license in this work to reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly, by or on behalf of the Government. All other rights are reserved by the copyright owner.

So you own it IF you assert your rights in advance, and IF they are granted…but the government can still use it in most of the ways important to your copyright, including creating derivative works and distribution to the public. Your copyright only applies to non-government folks using the footage…unless they ask for it from the government! In which case, of course, as US citizens, they have full access to it.

And indeed, the FAR gives the government the right to come back later and require the rights be transferred to them.

Note that under the Defense Federal Acquisition Regulation Supplement, clause 252.227-70209, you are required to assign all rights to the government. Period. It’s not clear to me what rights you retain once you’ve assigned “all” rights to government, but there you go: you have to assign them the rights. Nothing to negotiate.

Which was in fact part of Emre’s original question.

So, to answer directly:

[Emre Tufekci S.O.A.] “If you are hired as a freelance company to produce a project for a DOD agency (not classified, just informational) is there a clause that says the government owns the footage by default even if it was not stated in the contract?

Yes, there is a *default* that the government owns the footage, for every agency, both military and civilian. You have some, but not unlimited, room for negotiation, only with civilian agencies and NASA, and only in advance.

[Emre Tufekci S.O.A.] ….the [DoD] agency is asking for the raw footage without presenting any other legal justification.”

For the Department of Defense, they don’t need to justify anything beyond what is in the code: you shoot it for them, you have to assign them the rights.

Reading the manual – fun for the entire family!