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Can I use a clients copyrighted footage in reel?

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Bryce Leverich
Can I use a clients copyrighted footage in reel?
on Sep 22, 2008 at 6:14:28 am

Hello,
I am wondering if it is legal to use footage owned and copyrighted by my clients in my demo reel, and/or to promote my video production business? One step further, is it legal to use this footage that my company shot and edited without the original producer's consent?

To give some background, my video production company shot and edited footage for a large retail video company over the last 5 years. I have used the footage that my company shot for them on my company's website, to advertise what we do to prospective clients. When the client found out I was showing their copyrighted footage (short clips, NOT THE FULL PRODUCT) on my company's portfolio, they sent me a cease and desist notice to remove the videos from my site.

It just seems like we should be legally able to use short clips of work we have done for our clients in order to get new clients.

Has anyone ran into this problem before?

Thanks!


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walter biscardi
Re: Can I use a clients copyrighted footage in reel?
on Sep 22, 2008 at 11:55:38 am

You should never use client material for a reel or website without their permission. One it's just good etiquette. Two, depending on the material you're using, it could violate an NDA or copyright.

If they've already given you a cease and desist for your website, then they do not want you showing their footage and projects to people outside their company. So based on that, the answer is no, do not put this material on your reel.

I always ask for and receive permission for anything going on our demos or website. If the client declines, we don't use it. I would rather keep the client happy than use their footage against their wishes.

Walter Biscardi, Jr.
Biscardi Creative Media
HD and SD Production for Broadcast and Independent Productions.

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Mark Suszko
Re: Can I use a clients copyrighted footage in reel?
on Sep 22, 2008 at 2:44:48 pm

Walter shows you how its done.

You really ruined any chances you may have had by not simply and openly and honestly asking up front. Also, you likely won't get much if any more business from that client by going behind their back like that. Why should they trust you?

Had you had the conversation about this from the beginning, very likely you would have gotten permission for that demo footage and more, perhaps to enter some of it in prize competitions. Clients love getting an award trophy for something you did for them.

Our job is more than technical, it also involves managing human relationships just as much as techical processes. You can be a brilliant shooter, editor, whatever, but if you can't deal with people, you're never going to achieve all that you might.


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Bryce Leverich
Re: Can I use a clients copyrighted footage in reel?
on Sep 22, 2008 at 4:28:36 pm

Thanks for the help. In response to Mark's assumption that the footage may have been something that they did not want to release to the public... The clips I linked were put on Youtube by the original producer. I simply embedded the clips on my site, and took ownership of what I did in the production.

I have used video in the past from this client on my older demo reels, and they were aware that I was using the clips, and everything was Kosher. The thing that made them upset this time around was that I put the clips under "Our Work". They took this as me taking credit for producing the titles, which was not the case. They were cited as the original producers, and I listed what my company did in regards to the production. I understand where they are coming from, but as a freelancer, I need to show potential clients my work.

Either way, my main question was not if I was getting more work from them, or a lesson in rapport. I was asking if I can legally put clips that my company created on my company's website. Based on the previous replies, I assume the answer is no.

Thanks!



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walter biscardi
Re: Can I use a clients copyrighted footage in reel?
on Sep 22, 2008 at 4:54:34 pm

[Bryce Leverich] " I was asking if I can legally put clips that my company created on my company's website. Based on the previous replies, I assume the answer is no. "

The answer is not "no." The answer is you ask for permission. The client will give you the "yes or no."



Walter Biscardi, Jr.
Biscardi Creative Media
HD and SD Production for Broadcast and Independent Productions.

STOP STARING AND START GRADING WITH APPLE COLOR Apple Color Training DVD available now!
Read my Blog!
View Walter Biscardi's profile on LinkedIn


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Mark Suszko
Re: Can I use a clients copyrighted footage in reel?
on Sep 22, 2008 at 5:13:26 pm

IMO you did a work for hire, each time, so no, you never had the right to link to it the way you did, in any automatic sense, regardless of your feelings of ownership.

Which could have come up in a conversation if one didn't just assume permission.


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David Roth Weiss
Re: Can I use a clients copyrighted footage in reel?
on Sep 22, 2008 at 5:27:04 pm

I hear about these situations fairly regularly here on this forum, but, after more than three decades in ths business, I've never had a client who wasn't perfectly happy to let me show their stuff on my reel. Go figure...

David Roth Weiss
Director/Editor
David Weiss Productions, Inc.
Los Angeles

POST-PRODUCTION WITHOUT THE USUAL INSANITY ™


A forum host of Creative COW's Apple Final Cut Pro, Business & Marketing, and Indie Film & Documentary forums.


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Eric Susch
Re: Can I use a clients copyrighted footage in reel?
on Sep 22, 2008 at 6:32:21 pm

[Bryce Leverich] "I simply embedded the clips on my site"

This is not what you said in the first post in the thread. In your first post you said:

[Bryce Leverich] "I am wondering if it is legal to use footage owned and copyrighted by my clients in my demo reel"

Using footage in a demo reel and embedding a YouTube clip on your website are two entirely different things. If you want a specific answer you're going to have to be much more specific about the details in your question.

I'm also getting the sense that "your client" is not the ultimate client but another production company that actually produced the clips. Is this the case? I'd be careful about implicitly taking credit for things that I didn't do.

As far as legality goes, in these situations I think the law is irrelevant. Anybody can sue you for anything if you broke the law or not. And many people (especially lawyers!) don't understand that embedding a YouTube clip is the same as linking and not the same as copying.

These days it's easy to create your own personal productions to showcase your work. I'd drop the issue with these guys who are pissed off by you embedding their YouTube clip and make your own demo's for yourself.

____________________________________

Eric Susch

http://www.LetsKnit2gether.com

http://www.EricSusch.com

Follow me on twitter @EricSusch



Come and see our presentation at the
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Bryce Leverich
Re: Can I use a clients copyrighted footage in reel?
on Sep 22, 2008 at 6:52:39 pm

Eric,
The details are this. The Client is a production company that hires my company to shoot/edit/dvd author their products. I took credit for exactly what my company did, shoot/edit/author. That was spelled out on my site. I gave them credit for producing and owning the footage, I even gave a direct link to their site to purchase the video. I was not taking credit for anything that my company did not do. The clips were not shown in a "demo reel" fashion, they were direct links to youtube videos that the company put up (actually, paid me to put up for them).

My client is the ultimate client. They produce videos and sell them on a retail level. My company is hired to shoot, edit and author their videos.

On my site, I linked examples of their videos (the youtube links). On the page, I said, "This is work we have produced for our clients. We were responsible for the shooting, editing and DVD authoring of the following videos. To purchase these videos please visit http://www.ClientsWebSite.com."

I really think all of this was a communication error. I have been granted permission to use their clips before, and I have done so. I assumed that since I was able to do it in the past that it would be ok to do it now. I think that they were mostly upset that, according to them, it appeared that I was taking credit.

Since my first post, they have responded with something along the lines of "we understand your need to showcase your work, we would really just like to re-word your page containing our video content." So hopefully the problem is solved.

So to get everything straight... I didn't take credit for something I didn't do. I did ask for permission to use their footage in a demo reel, assuming I could use them on my website was wrong on my part.
So as of now, they are removed. I have a conference call coming up addressing the clips, and I will let everyone know how it goes.

Thanks again!



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Eric Susch
Re: Can I use a clients copyrighted footage in reel?
on Sep 23, 2008 at 5:04:23 pm

Well, this all makes sense now. This company obviously wants to hide the fact that they outsource their production work. Not sure why they care though because big companies like the Discovery Channel do this all the time and it doesn't de-value the content or the Discovery brand.

I realize you are in a delicate situation and you probably have to say this:

[Bryce Leverich] "assuming I could use them on my website was wrong on my part."

...but I'm going to disagree for the benefit of others who read this thread. Uploading video to YouTube gives EVERYONE implicit permission to embed the video on another website. It's what YouTube was designed for. The embed code is prominently displayed on the YouTube page specifically to encourage people to do it. If you are against embedding your content you shouldn't upload it to YouTube.

To pay an attorney to send a cease and desist order for embedding a YouTube clip is just plain crazy. In your case I would think a simple phone call from them would have been the appropriate response for their concerns about the wording of the text on your site. Hope you are able to smooth this over and work it out.

____________________________________

Eric Susch

http://www.LetsKnit2gether.com

http://www.EricSusch.com

Follow me on twitter @EricSusch



Come and see our presentation at the
New Media Expo in Las Vegas.




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Chris Newlin
But wait, there's more....Re: Can I use a clients copyrighted footage in reel?
on Sep 23, 2008 at 10:53:11 pm

not a lawyer, not a judge....
and certainly it would have been better to communicate beforehand, and to appreciate the sensitivity of a production company "subcontracting" out to another company, blah blah blah....

but it has always been my understanding that US copyright law extends really strong copyright protection to the original photographer of an image. (I am NOT a lawyer, just wondering aloud here....) As such, the photographer is the actual owner of the images, barring any other formal agreement between parties. I realize that in the video and film world, the translation between still photographer and cinematographer/videographer has become a bit blurred.... but absent of a work-for hire-agreement, the original shooter would maintain HIS copyright, not the other way around.
and yes, if there was an agreement in place, or (in some states) even an oral agreement that your work was to be "owned" by the company that engaged you, then you're under their hooks.

Yes it would be wise to have had the agreement drawn up by either side to protect the other beforehand, but absent of any formal agreement, I would think that the burden of making such a contact would fall on the company that hired you. Otherwise, as an independent freelancer, they're your images to do with what you want. (resell them, even.)

And I agree with the previous message, putting out a cease and desist for linking to YouTube is laughable.... obviously they are trying to keep confidential the fact that they utilize subs.

Another thing to consider, (again, a layman's understanding, not a legal opinion), you would need to be wary of posting video of people's images, property, proprietary information, etc.... unless you have THEIR permission. Even if you own what you shoot, you might not have proper permissions to show, post, display, sell, etc.

But unless they have a contract in their favor where you release ownership, (or that spells out exact usage permissions), I can't believe that they could enforce an action against you for you claiming your work was your work!

(yeah, yeah, next time get it ALL in writing!) And I do appreciate that to keep nice with a client, you can't go slap them around... but it seems to me, you were OK in your thinking and actions.

chris


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