Re: Copyright status on Foley sound

[Ty Ford]

Hello Mads and welcome to the Cow Audio Forum.

Copyright laws vary by country, but the employment aspects may hold a clue. Was there a contract? Did it cover who owns the work? Here in the US, we have something called “work for hire.” When you are doing work under a “work for hire” situation, you don’t own the work. The person/entity who pays you does. If you were hired as an employee, with no other mitigations, I don’t think you own the work.

My step-father was a civilian mechanical engineer for the US Navy. He created a number of devices. All of the patents were owned by the US Navy.

Next time, as you are entering a new project, if you want to retain the ownership of the work you do, consider putting it in writing that you retain the copyright, but license the work for use. You might want to say the license covers only use within the film. That would prevent them from publishing your work as part of a Foley library and selling it separately.

Regards,

Ty Ford
Cow Audio Forum Leader

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[Mads Nybo jørgensen]

Hey Ty,

Thank you very much for your reply.

This is not an employment issue, but more about rights to distribution without having the correct paperwork. As in that any agreement can only be executed if both parties have delivered their side of the bargain. Work in return for payment.

All the Best
Mads

@madsvid, London, UK
Check out my other hangouts:
Twitter: @madsvid
https://mads-thinkingoutloud.blogspot.co.uk

[Ty Ford]

Mads,

So, you did the work, the project is done and they haven’t paid you yet?

Please let us know the details.

Regards,

Ty Ford
Cow Audio Forum Leader

Want better production audio?: Ty Ford’s Audio Bootcamp Field Guide
Ty Ford Blog: Ty Ford’s Blog

[Mads Nybo jørgensen]

Hey Ty,

Not me personally. But a friend of mine have done the work, got part payment, but not the full amount. The final project has got distribution, i.e. it is in the public arena. So the question relates to where the copyright for the uniquely created sound belongs and whether one could argue that without a release note it can not be in the public arena?

Makes sense?

All the Best
Mads

@madsvid, London, UK
Check out my other hangouts:
Twitter: @madsvid
https://mads-thinkingoutloud.blogspot.co.uk

[Ty Ford]

Mads,

Laws in the US and UK may be different. Over here, that situation sounds like he doesn’t own the work or copyright for the Foley unless previously agreed upon. So no harm, no foul concerning putting the piece out.

Again, British law may be different. I wouldn’t want to comment on that, but Peter Groom may have an answer.

Regards,

Ty Ford
Cow Audio Forum Leader

Want better production audio?: Ty Ford’s Audio Bootcamp Field Guide
Ty Ford Blog: Ty Ford’s Blog

[Mads Nybo jørgensen]

Hey Ty,

Well actually, I’m on the side that believes in that any transfer of copyright can not take place unless payment has been made, unless otherwise agreed by, in writing.

All the Best
Mads

@madsvid, London, UK
Check out my other hangouts:
Twitter: @madsvid
https://mads-thinkingoutloud.blogspot.co.uk

[Andrew Rendell]

link to govt web site
https://www.ipo.gov.uk/types/copy/c-ownership/c-commissioned.htm

It should be written in one’s contract who has copyright, usually the production company want it and it’ll be written in the contract something like “In consideration of the fee… the freelancer assigns intellectual property rights to the company…” or “…non-exclusive, royalty free, irrevocable licence to use…”.

Technically (although it’s complicated, see the government link), and in my opinion morally, if there isn’t a contract which specifies who has the copyright and payment hasn’t been made then creative work remains the copyright of the creator. However, if your friend doesn’t have a contract or the contract doesn’t specify the intellectual property rights ownership then arguing about it is most likely to be a world of pain where no one will ever come out well and any victory will be a pyrrhic one. He/she might have a case to pursue the outstanding payment through the small claims court (IANAL and I’m guessing here because I don’t know the full facts but a court judgement against the production could put a distribution company off handling the film so a ‘letter before claim’ might elicit payment to avoid it getting to court).

TBH, if it was me I’d walk away from the copyright issue, put it down to experience, and be more attentive to my contracts in the future.

I’d chase the payment though.

[Bill Davis]

I think you’re in a pretty weak position and perhaps already too late in the process if I’m reading your issue correctly.

They’ve got what they wanted. The work has been created. It’s been released into the public viewing sphere. The cow is out of the barn.

At this point, any “transfer of copyright” technicality is kinda moot unless you’re willing to first threaten to – and eventually bring suit for the violation of your IP rights.

And that is neither easy nor cheap in most cases.

Once the work is distributed, the only real recourse you have is to threaten the party with a legal claim should they continue to do so – the first step typically being some form of a “cease and desist” letter to give them notice of your claim of violation. If they ignore that, then you still have to bear the costs of a lawsuit to prove that they’re knowingly using the work in violation.

Which, unfortunately puts the entire burden of proof on you.

The bottom line, is that if you’re going to make an ownership claim to intellectual property – it’s seldom smart to do it after the work is released. It’s certainly possible to get relief after the fact – but weak compared to asserting rights prior to initial distribution until all the legal matters are settled.

And I’m not an IP lawyer, but I’ve never heard of a single case where “incidental” sounds like Foley work were successfully defended as qualifying IP property in a lawsuit. The legal system (at least in the US) is often built on case law and precedent. And I wouldn’t guess there’s much of that in play here.

FWIW.

Know someone who teaches video editing in elementary school, high school or college? Tell them to check out http://www.StartEditingNow.com – video editing curriculum complete with licensed practice content.

[Mads Nybo jørgensen]

Hey Andrew,

Thank you very much, just what I needed.

All the Best
Mads

@madsvid, London, UK
Check out my other hangouts:
Twitter: @madsvid
https://mads-thinkingoutloud.blogspot.co.uk

[Mads Nybo jørgensen]

Hey Bill,

Thank you for your reply.

The case is a lot more complex than what I give it credit for and as far as I’m aware, the horse is still in the stable. However, the basic question was anyone had ever heard of a Foley artist claiming copyright ownership on the basis that the other party had not executed their part of the agreement.

Your point about case law and precedent is exactly what I was investigating – as in there may never have been a case to determine this point, but that is not to say that there couldn’t be one.

All the Best
Mads

@madsvid, London, UK
Check out my other hangouts:
Twitter: @madsvid
https://mads-thinkingoutloud.blogspot.co.uk