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Who owns raw footage?
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I spoke to my contract/intellectual property lawyer about this a while back during a big legal battle here in Phoenix.
W-2 = The employer owns it. Let’s say you work for GM in the video dept. When you shoot anything for the company, they own it because, in effect, they own you while you are on their payroll. Same as if you work for Motorola and you discover the secret to Iridium on company time.
1099 = You own it. GM hires you, ABC Video, to shoot footage for a production. And here’s where it gets sticky: If someone hires your company to shoot footage, you own the footage. If you hire a guy, you still own the footage because you were the photographer of record, not the college kid you hired to hang from a rope in a poisoned well.
The “Work for hire” contracts give the copyright to the person doing the hiring.
In other words, I believe that you own the raw materials. Now, here’s a catch 22. Did you bill for the tape? If so, they own the tape and what’s on it. We NEVER bill for tape when we feel that the footage might be handy to own in the future. We bill for storage of raw footage.
Steve Wargo
Tempe, Arizona
It’s a dry heat!Sony HDCAM F-900 & HDW-2000/1 deck
5 Final Cut (not quite PRO) systems
Sony HVR-M25 HDV deck
Sony EX-1 on the way. -
Our contracts actually state (from History Channel and Discovery) that all source materials, including camera masters, but not including stock footage purchased from a third party or shot prior to the production, belongs to the network and they demand as part of the deliverable ALL the masters.
The company paid for your camera crew, paid for the tape stock…that was in the budget…therefore they own the master footage. This is why many productions do not want to buy cameras or edit gear for productions using budgeted funds. Because legally, ANYTHING bought with those funds is property of the company providing those funds. Office supplies, staplers, stickie pads, tape…all of it. So many companies, even though the production really loses money by renting cameras and systems, that is all part of the production budget. This is why often companies will have separate companies that own the post equipment, and rent that to the production. This is VERY common out here.
So…I am with Walter. Unless you have a contract that states otherwise, the client owns the footage, because they paid for the acquisition of it.
Shane
Littlefrog PostGETTING ORGANIZED WITH FINAL CUT PRO DVD now for sale!
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[Shane Ross] “Our contracts actually state (from History Channel and Discovery) that all source materials, including camera masters, but not including stock footage purchased from a third party or shot prior to the production, belongs to the network and they demand as part of the deliverable ALL the masters.”
In my case with the original animations that are created, the network even owns all the graphical elements and original characters that are created for each one.
Walter Biscardi, Jr.
Biscardi Creative Media
HD and SD Production for Broadcast and Independent Productions.STOP STARING AND START GRADING WITH APPLE COLOR
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I find that many people have a hard time understanding what a “copyrighted work” is and what can and cannot be classified as a “copyrighted work.”
Steve Wargo’s lawyer supports my view/understanding of copyright. If you bill for the tape, the client owns the tape. And probably gets the copyrighted, recorded image that comes with the tape. I’m guessing that the selling of the tape implies selling of the image too. BTW: thanks for the tip, Steve.
I believe the analogy of “purchased office supplies” is the same as “purchased copyrighted images” is false. Office supplies are “things” that do not fall under copyright infringement. The packaging design is copyrighted and the things themselves (paper, ink, etc.) may have patents, but the products/deliverables themselves do not fall under the criteria of “copyrighted works.” Copyrights and patents are different things.
From what I’ve read in some of these posts (and please forgive me if I’m wrong) it seems like some people and their clients are confused about the difference(s) between “breach of contract” and “copyright infringement.” As I stated earlier in my post, I believe the client needs to have a “Work for Hire” agreement/contract signed in order to obtain copyright from the artist who recorded the image. Having a “Work for Hire” agreement/contract allows you to sue for “breach of contract” vs. copyright infringement. If the Work for Hire states that the client owns every single thing, then they will own every single thing when you sign it. If you don’t deliver what you say you will, then you have breached your contract.
Copyright infringement is a federal offense and requires federal courts to process. Breach of Contract can be processed as a local/state offense, and thus does not have to go through the federal court system. It’s A LOT easier to sue for breach of contract than it is for copyright infringement. Get contracts so that you can go through your local courts vs. the federal court system.
Once again, these are all just my opinions.
Bruce
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Now that I’ve thought about it, there’s more.
Here’s what the lawyer said: If I shoot a job for Xerox, I own the copyright to the images. They own the rights to use the images forever and into perpetuity. I do not own the rights to USE the images, only the copyright of the images. (Crystal Clear ??? in my book.) So, what we own is a completely useless copyright, but a copyright non the less.
I’ll give you some background on the court case: A fellow, John Smith, owned a video production company and decided to sell it. A person that I know, Tom Jones, became interested, looked at the books and decided to buy the company for $150k. This included all of the usual junk cameras, an FCP edit system with pirated software, and a library of 600 BetaSp tapes from jobs and a great client list including a famous beer company. The new owner sent letters to all of the clients saying “Hello, I’m Tom and I’m your new video production company.” EVERY client wrote back and said “No you’re not. And we want our tapes”. This is where the copyright/ownwership issue came up. The clients were billed for the tapes so they owned them. The copyright of the images remained with the original production company owner who had no right to use them for any purpose. On the tapes were many celebrities and actors. No one had the right to use their likeness for anything other than the original contracted use.
I was brought into the case as an expert witness. The question to me was “What is normal as far as the copyright?” Here is how we have always treated even before I knew anything about copyright. We have always considered the footage as owned by the client and if they needed additional work done using that footage, we charged them the normal labor charge and nothing extra for “images”. If they want their tapes, we hand them over. We do not give them the job files without a good reason. That is our creative work and the client is paying for the finished animation only, not for a lesson on our secret way of doing things.
Some of my collegues in the business have done otherwise. They have charged clients an additional fee for use of the images. They immediately lose the client because the client then demands their tapes that they rightly paid for.
On to the usual question about reel footage. You must get permission to use their images on your demo reel to commercially promote your video company. I always do this with tape rolling when possible. On our website, we have a demo reel from some HD jobs. On it are clips with Jamie Farr, Rick Schroeder and Senator John McCain. While tape was rolling, I asked the producers and the actors if I could use a portion of the footage on my demo reel. This is a legal and binding verbal contract.
Of course, any contract that is written, overrides anything else except for one thing: The copyright is not transferable from the original copyright holder. The lawyers told me this quite firmly. But let me remind you that it is a useless copyright because you do not have the right to DISPLAY the images. Whoever PAID has the right to use the images FOREVER and if you billed them for the tape, they own the tape.
Here’s a question for you. What about the images captured to hard drive? That’s why we charge for image storage. They simply can’t have the original storage device so they now have to provide a transportation medium. Quite often, when I write the job proposal, I include a hard drive, usually an external, to store their job on. And later, if they want it, it’s theirs, except for the perviously mentioned process files.
Note: I am not an attorney and this is not legal advice. My lawyer did, however, tell me that I could quote their findings, to others. I specifically asked about the COW.
I am going to go back to him and ask him to write a page on this topic so we’ll all have it in the future. I’ll have him bill Ron directly. They are the top intellectual property law firm in the state.
As for the outcome of the court case, the new buyer ended up paying the old owner about $100k total just to see the whole thing dissapear. He sold the computer to one of his employees for $200 and gave the rest away after sending out as many tapes as he could to their owners. Had I known, I certainly would have advised him against buying any production company. They’re simply not worth anything, as many of us know. After all, it’s all about the people and you can’t sell people. At least not any more.
Steve Wargo
Tempe, Arizona
It’s a dry heat!Sony HDCAM F-900 & HDW-2000/1 deck
5 Final Cut (not quite PRO) systems
Sony HVR-M25 HDV deck
Sony EX-1 on the way. -
What your lawyer said didn
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Continues to be verrrrrrrrry interesting! Thanks Steve. No, we never billed for the tapes and I doubt this issue would ever reach a hostile place with the non-profit. We delivered a very nice little project for close to nothing for them.
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[Steve Wargo] “Here’s what the lawyer said: If I shoot a job for Xerox, I own the copyright to the images. They own the rights to use the images forever and into perpetuity. I do not own the rights to USE the images, only the copyright of the images.”
OK. But obviously, their rights of use don’t extend to what doesn’t exist. Your place burns down after the completion and delivery of the production they hired you for – now what? “Owning the rights of use” is not ownership, otherwise your fire is really going to cost you. The content producer owns the copyright AND the rights of use which he grants only to the client. If that weren’t the case, archiving anything for a client would be a time-bomb.
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We just had a seminar for documentary film-makers here with an entertainment lawyer, and she emphatically states that unless you sign a “work for hire” contract, the videographer owns the footage. It is the same rule as applied to still photographers, there is one fee for shooting, and another (much steeper) fee to get the negatives along with the shoot. Thus the “paying for the tapes” argument can be seen as “releasing the negatives.” I always reserve the right to use ANY of my B-roll footage shot on locations in any of my future productions, or to sell as stock footage, and also reserve the right to use ANYTHING I have shot to be used as evidence of DP skills on the web and my demo reels. Anybody with deep pockets can win anything in court, as Steve Wargo points out, but that is why a clear contract from the beginning makes the only sense, and I will not shoot for anyone, ESPECIALLY non-profits, without a clear contract and understanding of who owns the footage I shoot. When I have shot for Canadian PBS, American Masters, U.S. PBS, National Geographic and other national broadcast clients, I of course hand over all the footage after the shoot and always ask (and have always been granted) permission to use clips from the finished project or show on my website and in my promotional materials. I am usually given a high quality version of the finished show gratis anyway, which also has me listed in the credits according to my contribution to the projects. I can feel the original poster’s pain in working with non-profits, as I have worked with many of them for very little or free, and they want to take the Masters and pay someone else to edit the raw footage. That is where I definitely draw the line. Bottom line, always have a contract in place to protect your work and images.
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Hi Christopher and all
In a previous response I asked if it would be possible to share some generic contracts, but nobody followed up. Is this a touchy subject? I’m just not sure if it is or isn’t. Perhaps I’ll start a new thread. What do you all think?
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