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Client relationship in jeopardy - help!

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Neil WeaverClient relationship in jeopardy - help!
by on Dec 16, 2008 at 1:59:38 pm

Hi all,
Wondered if you guys could help with a tricky situation I find myself in...
I run a small production company based in London, UK, and over the last year, we've had some regular work with the Communications Dept of a local government council, producing around 10 videos with them. The relationship has always been pretty good, but they've recently asked me to supply them with the raw rushes of the videos we've shot for them.

I can think of no reason why they'd be asking for this, except that they want either to produce a new video themselves utilising this footage, or they've gone to a competitor to make them a video and expect me just to hand over this footage, free of charge.

In the absence of any contracts between us, (I repeatedly requested they sign, but they flatly refused), the raw footage is mine, forming a valuable archive of a wide range of subjects. I am not prepared to hand over any footage to either them or a competitor, but I am prepared to sell the footage to them at a standard archive rate under a strict license governing its use.

So here's the problem. When I tell them this, I have the feeling they're gonna shit a brick, and being clueless about intellectual property rights etc, won't understand that I own the footage, not them.

So how do I go about gently explaining my position in a way that won't result in our losing their business altogether?

Thanks in advance...






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Mike SmithRe: Client relationship in jeopardy - help!
by on Dec 16, 2008 at 6:18:42 pm

Explain nice and gentle, like you have here.

You could take this as an opportunity to phone or call in, and ask exactly why they want your rushes - see if you can turn it into a business opportunity for you.

It may be no more than that a new person has started in your client department or in central services, and is wanting to implement a new policy. As the client, you can see that it's good for them to have as much control over their material as they can - at least edit masters, better, perhaps better, edit project files, through to all source materials, rushes graphics and effects files. But if you did not agree to this in contract, you do not have to supply.

From past threads, it seems that many on this forum are happy to hand over all rushes and master tapes. Personally, I always refuse this request if it comes up: master tape at additional cost, rushes just no. But that's up to you.

BTW, in UK law, you have a contract, regardless of whether they've signed something. It's just harder to prove what was agreed if there's nothing in writing. They invited you to tender, you made an offer of services (preferably in writing, with as much detail spelled out as possible, or at worst you kept a written record of what you offered, right?) They have accepted your offer, either verbally or in writing - your contract is formed. There's overwhelming evidence of a contract in that they arranged with you for a work schedule, and they paid you. Any dispute would be not over the existence of a contract, but over just what was agreed - which is where your written offer of services will be important. If you have a written acceptance or a "let's get started" e-mail so much the better, but you won't need it.

As you say, in UK law the rights to all materials generated (including the delivered programme) will rest with the producer unless your contract specifies something else.


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Neil WeaverRe: Client relationship in jeopardy - help!
by on Dec 16, 2008 at 8:33:28 pm

Thanks Mike,
There's plenty of emails and I give each client a production pack outlining the video concept, costs, timescales etc so as you say, there's enough there almost not to warrant a contract. What it doesn't contain and what hasn't come up until now is who owns the raw footage and they ain't gonna like being told no!

Well, the conversation about it is tomorrow, so I'll let you know how it goes...



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Harry PowellRe: Client relationship in jeopardy - help!
by on Dec 20, 2008 at 9:52:12 pm

I am having a very similar problem myself right now! I'm in the UK also. My client has been advised that she owns the rushes and that I should hand them over. She claims this on the grounds that she is 'the producer' and producers own the rushes.

The original agreement was confirmed by email, i.e. I listed what I would do for the fixed fee, and she replied agreeing to it, and thanked me for being so clear and comprehensive. However, the list did not specify who keeps the rushes.

To summarize, I offered a fixed fee deal to produce a promotional DVD by; shooting (+ hiring a 2nd shooter), editing, designing and authoring the DVD, including packaging. All tape and equipment costs etc included.

The subject was a one-off live performance of a contemporary dance piece that she funded, developed, designed and choreographed. I had to capture the live show as best as possible for a full-version edit and a promo edit. I was left completely to my own devices creatively on how to shoot it (I also directed the other camera and we shot rehearsal also), and in the post-production it was the the usual client/editor etc working relationship set-up.

If it matters, this was done on a shoestring with consumer miniDV but using the usual Apple pro apps for post. I was happy to accept a miniscule fee because I did it for the creative and technical challenge. And I was happy to do more than the original agreement, but in terms of handing over rushes.. well there is a limit. She loves the results... and of course I agree she produced the show itself, but can she have any justification at all for her claim to the rushes because she is 'the producer'.


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Chris BlairRe: Client relationship in jeopardy - help!
by on Dec 21, 2008 at 2:37:31 am

Harry,

I'm not sure about copyright and intellectual property issues in the U.K., but in the U.S., under the scenario you describe, you would own the footage (whether it's tapes, digital files, P2 cards etc.). She would own the performance and choreography rights since she designed and choreographed the project. So you couldn't use the footage for anything without her consent, but likewise, without a written agreement stating otherwise, she cannot legally compel you to give her the raw footage.

As many have pointed out on this thread, just because it's what's legal doesn't mean it's always a good idea NOT to just hand the footage over. If this was a low-budget deal and there's no real prospect for future work, I'd just give her the footage. I doubt she'd pay you a buyout even if you requested it.

In our experience, if a client is still using us for projects and is paying us on time, we'll typically make duplicates of raw foortage or files if they request it. If however, they obviously want the footage to take their work elsewhere, then we ask for a reasonable buyout fee and we'll either give them digital files or the raw tapes. Now what we consider reasonable might sound high or low to someone else, but we typically ask for around $150 per tape. We arrived at that by simply looking at what stock footage houses charge for DVD's full of shots. Most charge $599 and up for 12-25 shots. So we don't think asking $150 for a tape that typicaly has dozens of good takes on it is asking too much.

So if we have 50 client tapes, we'll ask for $6000 as a buyout. If a client had to re-shoot all that footage, it would cost them 25 times that...so we don't think it's a bad deal.

Even so...not one client in 12 years has ever bought the footage when presented with the buyout fee. Some moved on, one stuck with us and our relationship is better today than it was then.

There are a LOT of different opinions on this issue and there are many threads that discuss it. There's also a lot of misinformation about the legal aspects of it (as related to the United States). The law is very clear as it pertains to multi-media and motion picture production of ANY kind. In the absence of an agreement prior to production, and as long as you're not doing "work for hire," (meaning you're not an employee of the producer) YOU own the footage.

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


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Harry PowellRe: Client relationship in jeopardy - help!
by on Dec 22, 2008 at 6:28:43 am

Thanks Chris and Mike for your extensive and helpful replies, and everyone else who has contributed to this facinating thread!


[Chris Blair] "If this was a low-budget deal and there's no real prospect for future work, I'd just give her the footage. I doubt she'd pay you a buyout even if you requested it."


She has mentioned the possibility of more work, though not sure if that was just a ploy to getting the rushes. I fully take on board the wise words about 'good business', but for me the central issue is not whether I give her the rushes or not, but whether she has any grounds for stating (rather too bluntly) that she owns them and implicitly threatening non-payment until she had them. I have told her that I think she is possibly mistaken, but that I will double-check the facts and get back to her. If I am mistaken, I have promised her an apology and the rushes. Basically she has made me feel like 'the villain of the piece' and I don't like it, and I want to clear my name... if I am indeed innocent!

To put this into context: She asked for 20% creatively and I gave 200%. I even halved the fee she initially offered so that it matched the figure I already had in mind. And the promotional DVD I produced has already secured her show it's first prestigious venue (she also mentioned me by name in her application because of the film awards I had won previously). In contrast, during post-production; I don't think she was ever punctual, kept switching appointment days, was indecisive (things usually reverted to my original cut) .. and basically made it a much longer drawn out process than it should have been. Hey nobody's perfect.. and we all learn as we go (next time I'll be charging a daily rate and cancellation fees!) .. but she is a talented choreographer and the end product is beautiful and will serve both our portfolios very well.


[Chris Blair] "In the absence of an agreement prior to production, and as long as you're not doing "work for hire," (meaning you're not an employee of the producer) YOU own the footage."


Can you define "work for hire" please? What's to stop her believing that it was "work for hire"? Is it to do with working for a daily rate rather than a flat fee? I count myself as self-employed and I invoiced her, and the cheque was made out to me personally (rather than a company name) if that is relevant. Also, is it perhaps the case that even without a verbal or written agreement (that doesn't mention rushes) that ownership would just as legally be mine?





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Mike SmithRe: Client relationship in jeopardy - help!
by on Dec 22, 2008 at 10:05:35 am

Physical ownership of the rushes will depend on your original agreement, and if you have delivered what was in that you have no legal obligation to deliver more - you are not mistaken.

Copyright: work for hire. So far as I know there is no strict UK legal equivalent of this provision, which in some circumstances can mean that the party paying for work by outsiders (not just by employees) can be the legal "author" of that work and own all rights in it.

This webpage is from a UK lawyer specialising in this area and covers some significant points for you

http://www.speechlys.com/copyrightandcontractors


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Harry PowellRe: Client relationship in jeopardy - help!
by on Dec 22, 2008 at 1:16:46 pm

Hi Mike - My brain was starting to hurt through lack of sleep, so many thanks for taking the trouble to clarify further. I'll check out the link. I'm genuinely touched by people's support here.


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walter biscardiRe: Client relationship in jeopardy - help!
by on Dec 22, 2008 at 12:25:39 pm

[Harry Powell] " I fully take on board the wise words about 'good business', but for me the central issue is not whether I give her the rushes or not, but whether she has any grounds for stating (rather too bluntly) that she owns them and implicitly threatening non-payment until she had them. "

All I'll state is what I said in the beginning. If she paid you for your services and paid a tape stock fee, she owns them. I'll never do business any other way and it hasn't hurt me one bit in 8 years.



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

Read my Blog!

STOP STARING AND START GRADING WITH APPLE COLOR Apple Color Training DVD available now!


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Harry PowellRe: Client relationship in jeopardy - help!
by on Dec 22, 2008 at 1:07:27 pm

[walter biscardi] "
All I'll state is what I said in the beginning. If she paid you for your services and paid a tape stock fee, she owns them. I'll never do business any other way and it hasn't hurt me one bit in 8 years."


Sincerely appreciate the advice Walter. I know you are speaking from a lot more experience than I have. I used a total of 9 tapes for the shoot. Total cost (at current US/UK exchange rates) is precisely $14.65. I never charged her seperately for the stock. Does that mean I am fully justified in keeping the rushes?
; )


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Mike SmithRe: Client relationship in jeopardy - help!
by on Dec 21, 2008 at 11:47:57 am

Hi Harry

Perhaps I should have been a little more careful in my original post - some of Walter's concerns come here too.

What you have I think serves to underline potential issues. And it may help to be clear about separating copyright and physical ownership.

Who owns the tapes will be a fact of contract - if your contract does not specify that you hand over ownership and possession of the tapes, then she will not be able to enforce this. You can decide whether to be nice or not, and there are arguments on all sides.

The copyright, though, could be trickier.

UK copyright law gives first ownership of copyright to a work's "author" - references at the bottom! Of course this can be the employer if the work is created by an employee as part of his employment.

But for collaborative works like video, "authorship" can be a tricky issue. The advice I have been given is that the author and copyright owner in the event of a dispute is normally taken to be the person who made the arrangements for the work to be created - the producer (not the person who pushes the record button on the VT in studio, nor the person who pushes record on the camera / one of the cameras).

So a person organising a production who hires and briefs a crew, organises their shoot and sends them off to film and return with a roll of tape (hard disc / optical disc / roll of film) would expect to own both the physical materials and the rights to them. A person hiring a producer to make a video is not in that position - they would have an implicit right to use the created work for its intended purpose, but might not own either the copyright or physical materials used in creation of the work unless specifically arranged in contract.

In your case, it seems you agree your client was the producer. If you cannot resolve this amicably you will want to take legal advice, but it seems to me that, in a dispute, she will very likely be found to be the copyright owner in the finished work.

You might be able to argue that although she was the producer, you were the author and so the rights holder, since the major creative and technical decisions on the moving image production side were taken by you, but to me it does not seem likely that you'd succeed with this, and it's a lot of fuss for a very small production.

As producer, she is also likely be found to be the owner of any copyright in the rushes, though this is less clear-cut. Certainly she will own any rights in the choreography, and the performers will have performance rights. These were probably assigned to her in the performers' agreements with her. So you couldn't use the rushes for anything else without her consent.

All in all, one approach might be to explain to her that you have supplied what was contracted, and that the physical ownership of the tapes remain yours. Her rights as producer extend to copyright in the finished work, but not to ownership of subsidiary materials used in the creation of that work. You could offer to supply the tapes to her, either as a courtesy or for a small fee to cover tape costs, or indeed you may by now have wiped them and reused them ( this will come up a fair bit with solid state media).

Let's hope, of course, that between you you have properly cleared the music rights in your recording!

All opinions are expressed as opinions of the author - legal advice should be taken in any legal dispute.

http://www.opsi.gov.uk/acts/acts1988/ukpga_19880048_en_2#pt1-ch1-pb2-l1g5
Authorship of work

(1) In this Part “author”, in relation to a work, means the person who creates it.

(2) That person shall be taken to be—

(a) in the case of a sound recording or film, the person by whom the arrangements necessary for the making of the recording or film are undertaken;


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Chris BlairRe: Client relationship in jeopardy - help!
by on Dec 21, 2008 at 5:34:07 pm

Mike Smith:
But for collaborative works like video, "authorship" can be a tricky issue. The advice I have been given is that the author and copyright owner in the event of a dispute is normally taken to be the person who made the arrangements for the work to be created - the producer (not the person who pushes the record button on the VT in studio, nor the person who pushes record on the camera / one of the cameras).


Mike,

You bring up a good point on the collaboration issue. According to the joint authorship provision in copyright law, this really depends on how much the producer actually contributed to the production. If they came up with the idea, then hired the production company to shoot the project, and the production company made all the other decisions concerning producing the video, then the production co. owns the copyright to the footage AND the final production.

If the producer contributed more to the production, like collaborating on how it was shot and edited, then ownership is joint.

Here's a link explaining it:

http://www.citmedialaw.org/legal-guide/works-owned-one-or-more-creators

So in the absence of a "work for hire" agreement, the production company legally retains at least joint ownership regardless of whose idea it was, as long as they contribute substantially to the creative direction of the project.

All of this could be avoided by specifying up front in a contract who retains copyright. We include a line in our project contracts that explicitly states that we retain ownerhip of all footage as well as the completed project, including TV commercials, marketing videos, training videos etc (again, this provision is explicitly spelled out in copyright law and we've consulted with attorneys who confirm that we not only own the original footage, but also the completed work).

In the end, it's really a non-issue until a client wants to take the work you've done and transfer it to a competitor to use in other projects or, revise the current project. Then in this case, they should pay some sort of a licensing or buyout fee. People continually discuss the "ethics" of this issue. I don't believe ethics have anything to do with it. You're not being unethical by following guidelines set down by a federal law!

The only real question is whether it's always good for business to follow it. I think you have to look at it on a case by case basis and assess the intent of the client requesting the footage.

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


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Mike SmithRe: Client relationship in jeopardy - help!
by on Dec 22, 2008 at 10:00:22 am

Thanks Chris.


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Harry PowellRe: Client relationship in jeopardy - help!
by on Dec 22, 2008 at 8:04:19 am

Hi Mike


[Mike Smith] "But for collaborative works like video, "authorship" can be a tricky issue. The advice I have been given is that the author and copyright owner in the event of a dispute is normally taken to be the person who made the arrangements for the work to be created - the producer (not the person who pushes the record button on the VT in studio, nor the person who pushes record on the camera / one of the cameras)."


That sounded a bit worrying when I read it, but Chris' response reassured me a bit. Is what he said UK-applicable too? I'd like to think that I'm not just a button pusher(!). I may come across as a newbie (which I am in terms of running my own operation) and I've never exactly been prolific, but many years ago I directed TV commercials and won about a dozen awards for a couple of short films I wrote, directed and edited.

In terms of the copyright of the finished product, we have verbally agreed that we can both use it for promotional/portfolio purposes and that we would need each others permission for anything else.


[Mike Smith] "
In your case, it seems you agree your client was the producer. If you cannot resolve this amicably you will want to take legal advice, but it seems to me that, in a dispute, she will very likely be found to be the copyright owner in the finished work."



I said my client was the producer of the show, but not of the DVD/video production/creation. Or at least that's what I'm trying to ascertain. I was left to my own devices for the shoot (creatively and logistically) and her feedback in post (where I used my own equipment in my own office) was the usual client/editor one. In the credits my website is actually listed under 'DVD production' if that helps?

There is some video work I created for the show that is projected. I'm not laying claim to that because that is part of the show and she produced the show.

I guess I've come full circle. Please someone tell me that she can't claim to have 'produced' (in the sense of owning SOLE copyright) of the video recording/edit/DVD of the show... or has that already been answered.. ?


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walter biscardiRe: Client relationship in jeopardy - help!
by on Dec 16, 2008 at 8:47:41 pm

[Neil Weaver] "In the absence of any contracts between us, (I repeatedly requested they sign, but they flatly refused), the raw footage is mine, forming a valuable archive of a wide range of subjects. I am not prepared to hand over any footage to either them or a competitor, but I am prepared to sell the footage to them at a standard archive rate under a strict license governing its use.
"


Not the way I work, nor does anyone else I know. If the client paid for your time and the raw tape stock, the footage is theirs. The only time it is yours is if you are paying for the production yourself or you have a contract in place that says you own the footage.

Otherwise the client owns everything and you should turn it all over. I don't understand how folks claim they can own something they were paid to do. Lots of folks on this very forum feel they own anything they shoot but I find that very unethical and would certainly not hire anyone who does work that way.


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

Read my Blog!

STOP STARING AND START GRADING WITH APPLE COLOR Apple Color Training DVD available now!


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Michael HancockRe: Client relationship in jeopardy - help!
by on Dec 16, 2008 at 9:00:53 pm

Legally, Walter, the production company owns the footage unless there is a contract that states otherwise, or there's a work-for-hire contract.

So if someone hires you to shoot something and ownership is not specifically spelled out in a contract, you own the footage. You're limited in what you can do with it (basically edit it for them or stick it on a shelf), but you have no legal obligation to give it to the client should they choose to go elsewhere. I've seen it played out between legal teams and in the US, without a contract stating ownership, it falls back on the production company, not the client.

Having said that, it's up to you to decide what to do.

Michael.



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Mick HaenslerRe: Client relationship in jeopardy - help!
by on Dec 16, 2008 at 9:31:38 pm

Let's say I have a friend who does custom fabrication. Each project requires that he make a mold to fabricate the final product. The client pays him to deliver the final product, not create the mold. Does the client own the mold or does my friend?? I look at raw footage kind of like this, it's the mold with which we create the final product. The client doesn't pay us to shoot footage, they pay us to deliver a final product. Sometimes the final product might include stock footage that we purchase, does the client now own that as well?? In a strict sense it could be construed as raw footage as well.

That being said, I have never refused a client the raw footage or charged extra for it. Like Walter, I feel it belongs to the client, but I can see both sides of the story. If the client wants the footage to do something in house, that is their right. And when it comes out looking like A%$, they will be back. If the client wants the footage to take to a competitor, than you haven't done your job to keep the client happy. No one can steal a happy client. I do find it interesting that they didn't offer up front why the wanted it.

Personally, I like the client to have the raw footage. If something happens to it, it's on their head, not mine.

Mick Haensler
Higher Ground Media

Mick Haensler
Higher Ground Media


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Tim KolbRe: Client relationship in jeopardy - help!
by on Dec 16, 2008 at 9:41:21 pm

[Mick Haensler] "Each project requires that he make a mold to fabricate the final product. The client pays him to deliver the final product, not create the mold. Does the client own the mold or does my friend??"

Did the client pay to have the mold created? I bet there's a charge...why wouldn't the client own that?

I'm with Walter on most corporate work for hire...I reserve the right to use the work product to show what I can do unless it's something top secret...but otherwise...it's theirs.

The 'auteur'owning of the raw footage is something that was designed a long time ago to protect independent news photographers...who get paid when they sell an image.
It's not a concept that really travels well to a corporate job where all your expenses as well as an hourly fee have been paid...

Look around you. The world's economic fortunes are down the tubes...this double-dipping fee structure won't fly for long...

Neil, I guess if they didn't sign a contract and that's the law of the land, you've got them trapped...

Good for you...I guess.







TimK,
Director, Consultant
Kolb Productions,


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walter biscardiRe: Client relationship in jeopardy - help!
by on Dec 16, 2008 at 10:00:56 pm

[Michael Hancock] "Having said that, it's up to you to decide what to do. "

Yep, we can play the legal game all day, but ethically, what's the right thing to do? Ethically to me, it's proper that the client owns all raw footage.

I have gotten plenty of requests from clients to get the raw footage at some later date. I always send it along, no questions asked. Most times they come back saying they tried to have someone else edit a project, etc... and it didn't work out so they come back to me.

The only thing I do retain unless it is paid for is the project file. That's my creation and if they want the project file, they have to pay extra for that. That is spelled out in all our contracts with clients. They are paying for my creative services and the project files are part of that creative service. There is an additional fee to hand over Final Cut Pro, After Effects, Color, Motion files to the client.



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

Read my Blog!

STOP STARING AND START GRADING WITH APPLE COLOR Apple Color Training DVD available now!


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Todd TerryRe: Client relationship in jeopardy - help!
by on Dec 16, 2008 at 10:23:33 pm

I guess we do things a little differently, but apparently get away with it.

Our contracts here always explicitly state that we retain ownership of the footage. I know hindsight is 20/20 and that doesn't help Neil in this case, but in the future it might.

We have never had a client or potential client balk at this restriction.

We mostly do broadcast commercials, and our contracts stip that is what they are buying... the finished production to be used as a whole. They do not have independent access to the raw footage (although it is available to them free for any additional production here), nor can they take the finished commercial and hack it up or do anything else with it without our approval.

We're not just being possessive... it's about protecting rights, not only our own but those of others as well. Here, chances are that couple-of-years-old footage from a commercial shoot (for example) might include acting performances for which rights have long since expired. If we turned over raw footage we lose management of the rights that we have secured, and that can get us in trouble with actors, agents, and unions. I did a shoot in an airport once, and when the client came back to us for a recut a year or so later I had to explain that every person in the crowd were paid actors... and that while some of them were on a one-time buyout, several of the principals were only contracted for the initial 13-week run of the campaign. If I had simply turned over the footage the client would have undoubtedly just used it... and I would be fielding angry phone calls.

I only know of once that we have ever had a former client violate the terms, by taking a finished spot here and having someone else (actually a TV station did it for free) cut on it and turn it into something else. The problem is that they reused a music track that was specifically licensed for the previous production, as well as reusing an announcer tag that they did not pay new performance rights on. We called them on it, they gave us the "Oh, I didn't know we couldn't do that," and pulled the spot.

Now, all that being said, yes sometimes we do turn over raw footage... some clients hire us just to shoot raw footage for them, and that's fine. BUT... we do charge a higher rate for that though.... there is very low overhead on edit jobs, but very high overhead on shoots... so for large full-production jobs we are essentially giving away a portion of the shoot in order to secure the much-more-profitable edit gig. Ergo, a shoot-only gig has a substantially higher rate.

In the future, just spell it out in writing clearly in advance and there will be no question about it.


T2

__________________________________
Todd Terry
Creative Director
Fantastic Plastic Entertainment, Inc.
fantasticplastic.com






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John DavidsonRe: Client relationship in jeopardy - help!
by on Dec 16, 2008 at 10:31:57 pm

I'd hand it over as well. It's not worth pissing them off and losing a client that's giving you so much repeat business. If it really is an inconvenience to you, maybe you can bill a few hundred bucks for your time preparing the materials. Who knows what they're going to use it for? Who cares? With so much repeat business you're doing something right. Trust in that and be prepared for the next project.

John
Magic Feather Inc.


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Timothy J. AllenRe: Client relationship in jeopardy - help!
by on Dec 16, 2008 at 10:38:19 pm

As a person that spends time on both sides of the fence as a client and video production provider, I'd make them copies of the dubs and simply charge them for the time and tape stock.

Did they not pay for the video shoots?

As a client, I would expect to be able to get the raw footage if I paid for the shoot and the tape stock. (As a side note, I don't prohibit a contracted videographer from using footage they shot on my dime for their demo or advertising purposes either - as long as the footage is not confidential or proprietary, and as long as they don't make false claims about their role in the production.) If the production company had stock footage on hand that they already paid for and I wasn't charged for it, I certainly wouldn't expect to get copies of it in any format than in the finished product.

On the other hand, I don't expect to get project files, unless that's spelled out in the contract - and if it is, that "deliverable" is for a different negotiated rate than video production and post.

I also don't give out project files when I'm the Editor unless that's negotiated beforehand. But raw footage? As long as they pay for the time and the tape, it's theirs.







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Mark SuszkoRe: Client relationship in jeopardy - help!
by on Dec 16, 2008 at 11:10:55 pm

Can't say what's legal in the U.K. In the U.S. the only thing that matters at the end of the day from a legal standpoint is what is on paper and what can be proven. Absent that, judges fall back to common practice and in that case in the US I understand it to be the shooter's tapes and footage unless some other arrangement was made in advance. But nothing is ever simple.

For many people their personal code of ethics demands more, and there is nothing wrong with that, but it is not a legal requirement. This is something you choose to do, a commitment you make.

Legal or not, code or not, a third element is to ask oneself what is good for business in this situation. Well, the best thing would have been TO HAVE IT ON PAPER UP FRONT EVERY TIME. (sorry for the shouting). But failing that, will witholding the footage gain you business or lose you some business, regardless of your legal standing?

This has to be your judgement call. My personal feeling for this specifc case is that the footage can't be legally cleared to use elsewhere, so the shooter owning it in perpetuity is legal, as far as that goes but it is a pyrrhic victory, since you now get to store tapes you can watch but not sell, (they can sue you for that aspect) and you've ticked off a customer who will try to burn your name and reputation in the marketplace. In this business referrals are mother's milk, the main way you get more business. Antagonizing a client on principle may be noble and right but not be in your best interest.

The better part of valor for this specific case is to bill for the tape stock or hard drives the footage resides on, (unless these were already paid for under the terms of the contract) and any personal time you have to take to transfer it off your system. Bill for those things not already paid for under the contract, cash or certified check up front, and hand the tapes over, with a smile. And make a vow in blood to never put yourself in an undocumented contractual situation like this ever again. Write the terms you want, present it, and if that includes retaining the tapes, live with it if the clients say "no way". Or figure that in when you calculate the rates.

I would not hand over project files or edit decision lists you created in your shop though, as those I would consider proprietary tradecraft. Much like the t-shirt shop that makes your custom tee will not usually give you the master silkscreen frame itself unless you pay extra for it, and the chef usually doesn't give away the recipe, just serves up the meal. Again, you will want to explain this up front to the next client so there is no misunderstanding; if they want tradecraft like project files and AE comps and anything you generated internally that they didn't supply, like custom music you made, they have to pay for it separately, IF you are inclined to release it.

Or they can put you on salary with benefits and own everything you think, do, and say, all the time. Again, this is a U.S. perspective, I don't know how much is directly applicable to a U.K. or E.U. situation.


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Chris BlairRe: Client relationship in jeopardy - help!
by on Dec 17, 2008 at 1:18:36 am

We've run into this situation twice with large clients. U.S. intellectual property law is clear and as many have pointed out, in the absence of a contract stating otherwise, the producer/shooter/production company owns the footage.

But as others have also pointed out, ethically it's a sticky situation. In each of our cases, the clients wanted to take literally hundreds of tapes of footage AND graphic and AE comps... and use the material to revise, recreate or update a video we previously produced.

In our cases, we felt it was necessary to ask for something financially in return for all this. The graphics alone represented hundreds of hours of design work, much of it very-high end in style and quality, and we didn't feel comfortable releasing that to the client to do with as they wish.

In each case we presented the clients a buyout fee for what they wanted, and each was very fair considering the amount of assets.
One understood the reasons behind us wanting compensation, mulled it over...then decided to keep using us and is still using us today and is quite happy with the work.

The other client was behind on their bills (not with just us but with many vendors), and we asked for quite a bit more in compensation than the first client (but it was still very fair). They turned us down but also kept using us for another 2 months before laying off 85% of their staff and essentially folding up shop.

To my mind, if a client asks for ALL your footage, it's usually not a good sign, and unless they've requested ownership of the footage (as many large companies do), it's totally your call on whether to release it or not.

Very little good can come of releasing a large volume of your work...unless the client is up-front and forhcoming about it's use, and also assures you they're not trying to cut you out of the food-chain.


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


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Mike CohenRe: Client relationship in jeopardy - help!
by on Dec 17, 2008 at 3:27:31 am

just recently I had a client from 5 years ago call asking if they can have the raw footage. It seems they are looking for the original unmixed audio from some interviews, but were not very clear. I of course offered up our services for any future editing work they may need. Never hesitate to find an opportunity when someone calls you out of the blue, you never know.
They asked if they have access to the raw footage, and can they see the original contract. I explained that, A, the contract is in storage off site, since this was from 2003, and B, they paid for the work, they own the material, our company provided a service. I had the tapes in a box right where I left them, and was never going to touch them ever again, as the footage is useless by anyone but the original client.

Am I worried they will re-cut the project without me? Not really. The original project was about 100 hours of editing and another 100 hours of Director work. If they have the budget and inclination to start from scratch, good for them.

Come to think of it, yesterday I had yet another client ask for raw footage. This was a bit different - we paid for the shoot, but he is still the client. The video we created is done and in our library. He wants the raw footage for other teaching purposes, which is fine, as long as he gives us credit if he uses it.

It never hurts to be nice.

Mike Cohen


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Rafael AmadorRe: Client relationship in jeopardy - help!
by on Dec 17, 2008 at 10:30:14 am

I come across with this issue already and I have clear my position.
If the client hires me as a cameraman to shot something, all the rushes are of his property.
If I'm hired to make a finished video, my client is proprietor of the video with all his content. The rest, rushes included are mine.
If my client wants the video and the rushes too this have to be agreed beforehand.
Normally when I film I'm not working just as a cameraman, but I'm already directing and building the story on my head. I shot and work much more than my clients video needs and I want this extra job to reverts in my self, not in my clients pockets.
However with few of my clients we've got a share-rights agreement. But i know that if they want to re-use the stock footage probably they will contact me to work with them.
Cheers,
rafael


http://www.nagavideo.com


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Neil WeaverRe: Client relationship in jeopardy - help!
by on Dec 17, 2008 at 3:12:02 pm

Well, the good news is I had a meeting with the client this morning, and I'm starting a new project for them. The guy who asked for the footage is off on leave so I guess I'll have to wait a little longer to find out what he wants it for. Watch this space...

Just wanted to pick up on a few points made earlier in the thread though.

Walter, I disagree with you 100% about client owning the footage. We didn't just turn up with a camera, point it at something and hit record. The shots were thought about, directed and represent the culmination of many hours of hard work in pre-production.

It's a fairly common misconception amongst clients who don't understand that what we do doesn't just happen. Sometimes it looks effortless because the best videos make you forget you're watching a video. Non-professionals don't notice good camera work, but bad camera work sticks out like a sore thumb. So my main beef is why should the client get to exploit my hard work, skill and creativity as many times as they like, but only pay for it once?

Conversely, why shouldn't I get to maximize the return on my time and investment by being able to use, reuse and even sell that footage on as I please - some of it is great generic material of people using leisure facilities, cops on the beat etc, that has definite potential for being sold on as stock footage or re-appearing in future projects. And I'm certainly not in business to hand over work I've done to a competitor - is there a single production company out there that would?

To Mike Haensler - I can assure you we have done everything in our power to keep this client happy - they've had approximately $3000 worth of work this past year that we've not charged them for! What I can't legislate for is being undercut. As I'm sure everyone here knows only too well, there are a lot of hacks out there, flogging appalling productions and production values, but getting away with it because the price is right. It appears that's what's happened in this case. I've no doubt that when the client sees the difference in what we give them to what 'Company X' has given them, they'll call us back. However, in the meantime we are in an economic meltdown and money talks.

Anyway, thanks for the input all. Plenty of food for thought.

Merry xmas!









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Mick HaenslerRe: Client relationship in jeopardy - help!
by on Dec 17, 2008 at 3:44:44 pm

[Neil Weaver] "To Mike Haensler - I can assure you we have done everything in our power to keep this client happy "

No you haven't. If what you say is true, the only thing that will make this client happy is to give them EVERYTHING for free!!

AND DAMMIT PEOPLE, MY NAME IS MICK.....NOT MIKEorNICKorMITCHorRICK......MICK...with an M an I a C and a K.....MICK.......like Mick Jagger.....and yes this is meant as a joke so please don't take it any other way. Feel free to bastardize my name any time you like....(he said to them knowingly...)



Mick Haensler
Higher Ground Media


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Neil WeaverRe: Client relationship in jeopardy - help!
by on Dec 17, 2008 at 4:24:34 pm

Perhaps I should just offer them a full refund on all the work I've done so far just to be on the safe side then!

Thanks Mick

(Got it right that time. Damn you skim reading!)



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Bill DavisRe: Client relationship in jeopardy - help!
by on Dec 18, 2008 at 7:53:00 am

I'll quietly just say that I'm always troubled by these threads where someone feels that the mere act of shooting something imbues it with some kind of magical value that must be legalized, fought over, protected and negotiated. I understand rights for creative work. But really, unlike a work of creative fiction like a movie - most of the kind of corporate video we're talking about is NOT generating unique creative work of lasting value. So I think trying to hold it tightly in order to squeeze more incremental billings out of it is silly.

Two thoughts.

After 25 years producing videos, I can't think of a situation where my footage ended up being worth more than the EXPERIENCE I developed creating that footage. I'll gladly pass along the footage without regret, precisely because I see it as the LEAST valuable asset I have. Think: they can take the images, but never can they take from me the understanding of how to create such images.

Secondly, all that so-called valuable raw material? Timelines. Graphics. 3-D source files? If they ask for it, send them EVERYTHING! Boxes of tapes, Disc after disc of digital files. Why? Because it's so much fun to think of another person trying to go in and deconstruct/reconstruct a project without any fundamental understanding of the original thought process behind it.

I envision them as they start loading stuff into their computers. Poking around. Realizing that they don't even have most of the software necessary to RUN the files. (Haven't met a client with Omni-Graffle, the program I used to do quick video graphics, yet!) I imagine them so confused that they tuck the box in a closet and start over from scratch, because the program isn't really the digital assets - a good program is the THINKING behind the program. The decisions. And you can't typically look at something and decode the WHY of it easily.

So holding on to so called "assets" is, IMO, the attempt to control something that there's really no need to control.

Send the "STUFF" wherever it needs to go. It's just stuff. Particularly if releasing the stuff helps to make people feel good about who you are. THAT'S Valuable. You always get to keep your experience and understanding - and to walk away knowing that they PAID you to learn more.

That's the real win.

My 2 cents anyway.



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Neil WeaverRe: Client relationship in jeopardy - help!
by on Dec 18, 2008 at 11:17:33 am

Very Zen Bill. And possibly the right way to look at it.
Just had a call from the client. Turns out another dept has commissioned someone else to produce them a short piece of internal comms that they want to use my footage in. I've told them that's fine. I will only charge a fee for compiling and transferring the material, and they can use it free of charge, upon written agreement that it doesn't end up in this other person's/company's archive.

For all the debates about the 'value' of raw footage - and there are good points on all sides - I don't think any of us are in business to give our competitors a leg up, nor are we there to be treated like punks by our clients.

Thanks for the help all!



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John WilsonRe: Client relationship in jeopardy - help!
by on Dec 18, 2008 at 2:07:34 pm

I have been an independent in TV sports for 15 years. Over that time I have had just about every relationship I can think of with big networks, small networks and other clients. If you value the relationship with a client then work to keep it. If you do not, move on and find other clients. Many clients do not really care what goes into what they pay for, only what comes out. For me the best way to get more clients is to keep the ones I have satisfied. We have choices and so do your clients.

Cheers,

JW




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Christopher WrightRe: Client relationship in jeopardy - help!
by on Dec 19, 2008 at 12:42:38 am

It is so funny to see this topic come up again and again on this forum (do a search and spend a few days reading), with the same people always espousing the same views. I started out as a still image photographer, where you ALWAYS own what you shoot, AND the negatives, AND the client pays for your time AND all materials. If they want to own the negatives, they pay more. Unless you sign a "work for hire," you own the raw footage. If I shoot something for free for anyone (especially non-profits), I definitely own the footage. Depending on the pay scale and job, those criteria dictate whether I will relinquish the footage or not, but always with the stipulation that I must be credited for the footage. It is just plain silly (and wrong) to call this practice "unethical." The bottom line is always make sure where you and your client stand before committing to a project, and have a signed contract in place to back you up. That being said, anyone can sue anybody for anything in the good ole' U.S. and usually the deep pockets win, regardless of who is right or wrong, even if you do have a contract!

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Chris BlairRe: Client relationship in jeopardy - help!
by on Dec 19, 2008 at 2:48:52 am

Christopher Wright:
It is so funny to see this topic come up again and again on this forum (do a search and spend a few days reading), with the same people always espousing the same views.


I agree with you Christopher (and not just because we have the same name). Copyright and intellectual property laws exist for the purpose of protecting the sort of work we do. It doesn't matter if your raw tapes or project files have any other intrinsic marketable value. Most of what we do and most of the stuff we charge for is intangible. That $.50 plastic DVD, or the digital file on a website magically plays and tells a client's story. It's not like a car where you can see and feel what you bought. All the work that went into creating that video AND getting it in a deliverable form has value.

I've never understood why the same company that expects you to turn over a box of 100 tapes, is perfectly ok with having to pay for each and every use of a still photograph. Nor do I understand the willingness of people to turn over those boxes of tapes and project files, "no questions asked."

Clients usually ask for footage because they want to save a crapload of time, effort and money by taking the work you've done and give it to another production house to create some deriviative work. So why do so many video and film professionals believe it's such a bad thing to ask for reasonable compensation when a client asks for that footage, especially when they admit they want it for another project to be edited at another facility?

No one's even brought up the issue of other facilities taking YOUR work, then taking credit for it. We've had this happen TWICE. On one project, we created an ad campaign for regional retailer, complete with a very high-end graphical look, animations and two days worth nicely shot video. When the client asked for the assets (tapes, photoshop files and after effects comps), we gave it to them. A month later, we see our creative campaign completely copied, (except with new text on the graphics) in a series of new spots. They had the audacity to enter the campaign in the addys...it won...and THEY ALL TOOK CREDIT.

I also posted earlier about two large clients that asked for ALL of their footage and graphic files. On both we asked for a reasonable sum that was barely more than the cost to dub the footage tape to tape. Both declined. One continues to use us to this day and our relationship is great. The other is headed for bankruptcy and their request was an attempt to avoid paying us.

So I don't think anyone is arguing that corporate or even commercial footage has any real value or use to the post house, they're arguing our creative works have intangible value. Those intangibles are worth something. And guess what...there's a law in place to protect that value. You can read about here:

http://w2.eff.org/Censorship/Academic_edu/CAF/law/multimedia-handbook

But even after all that...we don't treat this issue as an "absolute." We STILL give footage to other facilities as long as the client is doing projects with us. In fact, we did it today. WE copied hundreds of clips for one of our competitors to use on a project they're editing for the same client. So we look at this issue on a client and project basis.


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


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Christopher WrightRe: Client relationship in jeopardy - help!
by on Dec 20, 2008 at 2:18:51 am

Very well put, and with your included link, finally put to rest!

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Octocore 8 GB Ram, Radeon card, MBP, MXO
Windows Vista Adobe Studio CS4, Vegas 8.0, Lightwave 9.3, Sound Forge 9, Acid Pro 7, Continuum 5, Boris Red 4, Combustion 2008, Sapphire Effects


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Bob Coleeasy
by on Dec 24, 2008 at 3:09:43 pm

It depends.

If they hire me to shoot, and ask for the media, they get them, no charge, even if our previous understanding was that I was to do the editing.

If someone hired you to produce a specific show, and asked for tapes, there are three possibilities:

1. The relationship is great, and the request is harmless - they just want to be sure the tapes are safe, or someone wants to try to edit or repurpose the media for a web video - give them the tapes.
2. The relationship is rocky, and any unusual request for media might be a sign they're leaving. Make sure they've paid for all work to date, and give them an estimate of what it will cost to make copies for them.
3. You and your client are getting a divorce, & they're definitely leaving. If your contract does not specify that they are to get camera tapes, etc., then enforce the contract, and don't give them a thing.

In any case, you have a responsibility as producer to inform the client that there are other rights-holders (actors, musicians) involved, and they have to sign a receipt for media that includes an acknowledgment of that fact.

I've been lucky enough only to be involved in Case 1 above, and the client gave the tapes back very quickly so we could use them in the next show.





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Chris AbramRe: Client relationship in jeopardy - help!
by on Dec 24, 2008 at 6:53:03 pm

I won't go into the copyright issue as there are several excellent responses to your email. However, have you considered allowing the client to view a set of your rushes BUT MAKING SURE THAT YOU HAVE TIMECODE IN VISION EMBEDDED ON THE TAPE?
If the relationship is still a practical possibility for the future then perhaps a restricted viewing between yourself and the client might just avoid any unpleasanteries and could also lead to more work.
Our company believes that unless it is in black and white in a contract then we do everything to retain copyright.
Good luck

Chris Abram


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