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ownership of footage

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Bonnie1100
ownership of footage
on Jul 26, 2007 at 4:57:50 pm

I'm just wondering how videographers are handling ownership of the footage they acquire. I do alot of tourism related projects (commercial spots and features) and most clients have no objection to me holding and using the footage for various projects beyond what it was first acquired for. But lately, new clients are asking to keep and own the footage. I like the work, but am reluctant to hand over rights. Does it make if difference if talent they hire and pay are subjects of the footage? Do you handle footage of events with no hired talent differently?
Of course all are hiring me as an independent contractor and not as an employee.
I'd be interested in hearing some opinions - especially legal.


Bonnie Ernst
Videographer/Editor
http://www.pacificcoastpro.com


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zrb123
Re: ownership of footage
on Jul 27, 2007 at 7:09:27 am

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.



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Gary Chvatal
Re: ownership of footage
on Jul 27, 2007 at 12:51:53 pm

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.


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David Roth Weiss
Re: ownership of footage
on Jul 27, 2007 at 4:49:55 pm

[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


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beenyweenies
Re: ownership of footage
on Jul 27, 2007 at 3:44:37 pm

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


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beenyweenies
One other thing...
on Jul 27, 2007 at 5:10:04 pm

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


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Steve Wargo
Hey Brendan...
on Jul 30, 2007 at 3:05:20 pm

Brendan,

What's with the "beenyweenies" thing? Everytime I see that I die laughing. I am laughing like hell, right now and will continue to do so for some time.

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


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beenyweenies
Re: Hey Brendan...
on Jul 31, 2007 at 12:30:18 am

Hey sorry for the lag in reply, was out of town. The screen name dates back many, many years when I was signing up for my first internet account ever. I had tried 5,000 different names, and none of them worked no matter how ridiculous. Beenyweenies eventually popped into my head (but who knows why) and it worked. I've been using it ever since for my SN.

Brendan Coots

Splitvision Digital

http://www.splitvisiondigital.com


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Mike_S
Re: ownership of footage
on Jul 27, 2007 at 4:35:21 pm

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
http://www.copyright.gov/title17/92chap2.html
http://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?




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Bruce Bennett in Madison, WI
Re: ownership of footage
on Jul 27, 2007 at 5:13:44 pm

[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


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David Roth Weiss
Re: ownership of footage
on Jul 27, 2007 at 5:37:03 pm

[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


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Steve Wargo
More
on Jul 29, 2007 at 5:31:25 am

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


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Steve Wargo
Recent Lawsuit
on Jul 29, 2007 at 5:08:42 am

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


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Mike_S
Re: Recent Lawsuit
on Jul 29, 2007 at 10:17:51 am

There's a little more on all this here.

http://www.a-p-a.net/docs/copyright_law.pdf

Question:
If a producer, a director, a lighting cameraman, a camera operator, a focus puller, a sound recordist, a key grip and artists all contribute to a shot, who is its "author" ..?



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Eric Susch
Re: Recent Lawsuit
on Jul 29, 2007 at 12:36:47 pm

[Mike_S] "Question:
If a producer, a director, a lighting cameraman, a camera operator, a focus puller, a sound recordist, a key grip and artists all contribute to a shot, who is its "author" ..?"


Add to that an actor and a writer, and you get a really big mess. I think the best advice here is to make sure that it's all laid out in the contract very specifically.

That being said, what are you going to do with all this footage you own when everything can be uploaded, downloaded, mashed up, and sampled? Legally if you own it you control everything but PRACTICALLY what control do you really have. Billion dollar corporations can't keep a lid on their own stuff. As a small business person with fewer resources, what can you do if someone "steals" your property? My practical (not legal) advice is to concentrate on your SERVICE and forget about the intellectual property. It's too much of a hassle with very little return potential.

____________________________________

Eric Susch

http://www.LetsKnit2gether.com

http://www.ElectronicSprocket.com




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Tim Wilson
Re: Recent Lawsuit
on Jul 29, 2007 at 2:39:55 pm

[Eric Susch] "My practical (not legal) advice is to concentrate on your SERVICE and forget about the intellectual property. It's too much of a hassle with very little return potential."

I had a 1099 job with federal clients for a few years. My understanding (right or wrong) was that they owned the raw footage, with an additional twist: since it was paid for by taxpayer dollars, anyone who wanted the footage for any reason, including commercial reuse, could have it. I'd get to charge reasonable fees for duplication and tape stock, but it was theirs for the asking.

Again, maybe right, maybe wrong, but my it was my understanding...which made it crystal clear from day one that, after I got paid to shoot it, my footage was worth exactly zero to me.

So after the first 2 years, the style changed from run-and-gun, just-in-time newsy stuff to slow, documentary style, fit for reuse. I asked for more money, which triggered a new request for bids. I lost the gig, and a youngster started using the footage I'd shot along with his new stuff.

Until HE lost the gig a few months later.

There were a number of reasons, but the biggest was service. The client came back and said, "I'm using the word 'grovel' here." They had kind of known that my value was greater than my shooting and editing, but they had no idea how much. It turned out to be a pretty good thing all around.

It was a hard thing to wrap my head around, but I really did come to place zero value on the *things* that I made after I'd been paid for them. Payment for *things* is retail, and we've seen that any goofball with a camera and a box of cheap software can get into the retail business, where slashing prices is the norm.

My value was my ability to help clients understand their goals more clearly than they had before they started working with me, turn those goals into plans, and execute the plans with flair. That is, my own goal was style rather than art. Art was beyond my reach. :-)

PS. I made the elements in my comps available to client and their new boy. Most of it was footage I'd shot on their dime anyway. But the "recipes" were proprietary. I wouldn't even tell them that I used After Effects, much less let them see the project files. Even if that wasn't entirely my legal right, I'd been easy enough with the rest that they didn't bother to ask twice.


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Bruce Bennett in Madison, WI
Re: Recent Lawsuit
on Jul 29, 2007 at 1:49:22 pm

Steve,

Was your experience in Arizona a federal or state case? One lawyer told me that suing over copyright violation is a federal case and takes federal dollars, federal lawyers, etc.
She said that a person should create a contract in which copyright is transferred because you can then sue for "breech of contract" which is easier/cheaper to pursue because it takes only state dollars, state lawyers, etc. And once/if you win at a state level, you then you can go on to the federal level and sue for more money over copyright violation.

Make sense to you?

Bruce


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


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Steve Wargo
Let's do it.
on Jul 29, 2007 at 5:08:35 pm

I believe that you are 100% correct.

The question from earlier about who owns it when a team did it: The photographer. The word videographer does not exist at the federal level and usually not at the state level either. When we were filling out papers to become a resource for the state a few years back, the catagories were 16mm film and 35 mm film. "Video" did not even exist. We spent a year getting this changed. My tenecious wife had her claws in the state and wasn't letting go.

As for another comment from earlier: Your copyright is worth almost nothing, once the client has PAID you. However, if someone else got possession of your tapes, you could stop them from using them. All you need to do is hire a lawyer and file a complaint. Got $10K laying around with no purpose?

Yes, if you're interested in protecting your rights and whatever else, work up a contract right now.

And, because we all belong to this forum, why don't we do exactly that? We could collectively come up with a contract that is good and fair for both sides. Does anyone have such a monster? All of ours have been one offs that were written for a particular client. We belong to MCA-I and I'll bet that we've got something prewritten.

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


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Steve Wargo
For Bruce Bennet
on Jul 29, 2007 at 5:13:17 pm

Bruce

I saw that you are also an MCA-I member. Do you know Lou Hunt? She is from Madison and does a lot of our voice work.

I was in Milwaukee and Oshkosh last week shooting footage for an aviation TV show that we're trying to get off the ground. (Pun pun pun!)

I was in Madison in '73 or so for a big motorcycle race on the 4th of July or Labor Day. It's all a bit foggy after all these years and all those party beverages.

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


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Bruce Bennett in Madison, WI
Re: For Bruce Bennet
on Jul 30, 2007 at 4:16:12 am

[Steve Wargo] " saw that you are also an MCA-I member. Do you know Lou Hunt? She is from Madison and does a lot of our voice work.

Yep, I've been a member of ITVA/MCA-I for about 15 years now. We have a pretty strong and cool chapter. Steve Tingly from American Family Insurance was even the national President.
Don't know Lou Hunt. I'm sure the guys at Concept or Haggar know her. I'll ask for some demos.

I was in Milwaukee and Oshkosh last week shooting footage for an aviation TV show that we're trying to get off the ground. (Pun pun pun!)

Big thing in Oshkosh. So many planes that they tend to collide and crash from time to time.

I was in Madison in '73 or so for a big motorcycle race on the 4th of July or Labor Day. It's all a bit foggy after all these years and all those party beverages."


I graduated from Madison in 1990. I love Madison (even with the sub zero temps). I've heard lots of stories about the 70s. Are you sure it was the beverages that made it all foggy? :)

Email me at bruce@bmmp.com

Bruce



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


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Steve Wargo
Re: For Bruce Bennet
on Jul 30, 2007 at 4:55:55 am

Electric wine would be the beverage of memory. It as a crazy weekend and we had a group of over 1000 that hit the campground that evening. The sheriff and the mayor came to ask if we could spare the town from the usual rape and pillage that they had seen in movies like "The Wild One". We had no intention of going into their little town. They were safe. At least from us.

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


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