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Who legally owns footage??

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Dean Gatenby
Who legally owns footage??
on Jul 31, 2014 at 12:20:52 pm

Hi

Ok i have read a few posts on this and am a little confused so if you can help clear it up here is the situation.

Recently i worked on an indie horror film.

the director was the script writer and producer, only problem was he only really wrote the script and pulled together lighting, cast, crew and accomidaton.

we are having some pretty heated discussions regarding roles etc.

Basically i have been editing the production but had to hand over for someone to finish as paid work came up. i didnt send immediatly and i received a legal notice instructing me to hand it over, i had already posted the footage. so now its been finished

the owner of the camera who was dop, 1st Ad and effectivly director received the same notice and told me not to send the footage as he legally owns it as it was filmed on his camera, stored on his memory cards and no contract was signed which would legally give ownership over.

now we are trying to arrange a chat with the script writer to discuss roles as we feel he shouldnt plaster his name all over this production as director and producer but he is refusing to comply. basically we dont want him getting all the credit when its complete as we did all the work, all he had was a script, some producing and no real direction.

wher do we stand?

Cheers

D


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Todd Terry
Re: Who legally owns footage??
on Jul 31, 2014 at 3:37:57 pm

[Dean Gatenby] "the director was the script writer and producer, only problem was he only really wrote the script and pulled together lighting, cast, crew and accomidaton."

Hmmmm.... so he ONLY directed, wrote, produced, pulled lighting gear, cast it, organized crew, and arranged accommodations?

That's a pretty big "only."



[Dean Gatenby] " we feel he shouldnt plaster his name all over this production as director and producer"

Again, a little confused... wasn't he the producer and director? Why shouldn't he be credited as such?

Not trying to be snarky, and maybe this wasn't the case at all (not knowing all the behind the scenes details), but on the surface it sure sounds to me like this guy is getting his film hijacked.

T2

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



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Shane Ross
Re: Who legally owns footage??
on Jul 31, 2014 at 5:38:12 pm

Sorry...on feature films, the DP doesn't own the footage. Nor does the editor. It's all owned by the producer/production company. Always. You are brought on as "work for hire," even if you aren't paid. As such, the footage isn't yours, but owned by the company that hired you.

And yeah, I'm with Terry...that's a lot of "ONLY's." He appears to be the circus master, producing, directing, hiring people, arranging things...producing the film. Thus the footage is his. PERIOD.

Shane
Little Frog Post
Read my blog, Little Frog in High Def


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Dean Gatenby
Re: Who legally owns footage??
on Jul 31, 2014 at 6:13:09 pm

Hi guys cheers for the replies but i think you missunderstand, though i do see your point so allow me to expand.

He didnt direct anything he was clueless, evertime there was a decision to make he walked away, there was no storyboard or plan we were left to do it all ourselves, he didnt communicate the entire cast and crew almost walked but the dp and myself kept it together... He has given no input at anypoint with regards to the edit or soundtrack, evertime i have asked for his input i get back zip

To be honest im happy its off my hands, i'm just posing the question for the guy who was effectivley director, 1st AD, DP and shot it all on his camera and stored on his memory card.

If my description of this guys incompitance does not paint a very clear picture of the individual and the reasons for the grievence then.... well...

So if there was no contract and the entire thing was shot on a camera that was not contracted or paid for then where does he stand?

I myself am fully happy to have this out of my life, just need some advice for a friend

Cheers


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Todd Terry
Re: Who legally owns footage??
on Jul 31, 2014 at 6:37:26 pm

Incompetent or not, sounds to me like he was still the producer and still owns the project.

Competence is not a prerequisite for ownership.

And once again, shows the importance of contracts/agreements that spell out exactly what everything is.

T2

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



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Shane Ross
Re: Who legally owns footage??
on Jul 31, 2014 at 6:44:09 pm

The producer is the producer is the producer. Good...bad...doesn't matter. He's the producer. He conceived of the idea, and hired you all to execute it. The footage is his.

The editor nor DP never own the footage in situations like this. Not unless they have a contract specifically stating that they do. It's work for hire...you are hired to shoot, or edit...or whatever. The footage belongs to the incompetent boob that brought you all on board.

Shane
Little Frog Post
Read my blog, Little Frog in High Def


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Dean Gatenby
Re: Who legally owns footage??
on Jul 31, 2014 at 6:50:05 pm

Ok cool, cheers for the info I'll relay it, such a shame that he gets all the credit for being a boob, well I guess it will all show if he gets hired to do the same for someone else... Karma will always get it's man.

Thanks again

D


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Mark Suszko
Re: Who legally owns footage??
on Jul 31, 2014 at 7:56:58 pm

"And yeah, I'm with Terry...that's a lot of "ONLY's." He appears to be the circus master, producing, directing, hiring people, arranging things...producing the film."

We prefer the term: "Auteur"

:-)

That this happens on an indie is not that surprising: we could come up with twenty or more big budget Hollywood features that match this guy's description. I'm not sure why the DOP is fighting so hard for credit on what will undoubtedly be an immense turkey that may never see an audience anyhow.


I'm going to give a somewhat contradictory opinion to the others, though I should remind you I'm not an entertainment lawyer or any kind of lawyer. But my reading of the work for hire laws in the US is that the magic three words "Work For Hire" must be in writing, or the court's default assumption in absence of a contract or memo saying different, is the old default ownership/rights situation of classic still photographers: that the shooter owns the raw footage. HOWEVER: the flip side is that the shooter has no rights to use that footage without the client's permission, so it's a stand-off situation when you get to this kind of conflict.




"Just give us the raw files, and walk away..."




This kind of conflict is the core of the case of Flagler vs. Walmart, or Walmart V. Flagler, I'm too lazy to look up which way it was now. Flagler shot years' worth of internal meetings and trainings, etc. as a Walmart contractor, but there was never the magic three words in their contract. One day, Walmart kicked Flagler to the curb for a cheaper supplier. Shocking, I know. In an example of what NOT to do, that should forever be taught in management schools, as the "First, pants, THEN shoes" theory, only THEN did the Walmart lawyers and HR people ask for all the potentially highly incriminating and formerly confidential archived stuff Flagler was storing for them. Court upheld that the footage was Flagler's. Flagler wasn't able to make much out of it, though, without Walmart's permission, so to date only a few snippets of Flagler's tape library have been aired, used by lawyers in various suits against Walmart to show what they were really thinking and doing in various cases of discrimination or whatever.


The take-away:
GET IT IN WRITING FIRST, NO MATTER HOW TRIVIAL THE JOB.


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Todd Terry
Re: Who legally owns footage??
on Jul 31, 2014 at 8:05:03 pm

[Mark Suszko] " I'm not sure why the DOP is fighting so hard for credit on what will undoubtedly be an immense turkey that may never see an audience anyhow."

That's pretty much what I was thinking, also.

T2

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



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Mark Suszko
Re: Who legally owns footage??
on Jul 31, 2014 at 8:13:55 pm

That's pretty much what I was thinking, also.

T2


_____

It remains a relatively small, tight world we work in. What goes around, comes around. Word of mouth is very powerful in this business; If the DOP did great work directing, but was un-credited, it WILL get around, eventually, to people that matter. That's often worth more than an actual credit roll appearance. If he takes credit on a stinker, it can take decades to live it down, and it may even become an obstacle to better future things.

I'd say, let this one go.


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David Howard
Re: Who legally owns footage??
on Aug 7, 2014 at 7:47:27 am

I thought the client would own it as they are paying for it ?

Redefined Media

Video Production Sydney


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Mark Suszko
Re: Who legally owns footage??
on Aug 7, 2014 at 1:05:49 pm
Last Edited By Mark Suszko on Aug 7, 2014 at 1:19:56 pm

David, the issue often comes down to a legal definition of what exactly the client paid for: the end product only, or the services of an individual.

In the U.S., when a contract says "work for hire", that means the client is paying to flat-out own the entire work product and all the rights to it. A stills photographer here typically retains the ownership of and rights to the negatives, then charges each time for copies made from that negative, and with digital, you're just paying for each print made and the right to use what the photog shot on a case-by-case basis.

If its a work for hire, however, you're telling the photog he or she is handing over the negative and the permissions to use the shot any way the client wants, in perpetuity, and they (the photog) hit the road, never to have any input regarding that image again.

In the case of video, the issue becomes who retains the rights to the raw recordings. Unless you have it in writing, the shooter keeps the raw materials and hands over only a finished product. The service of making a finished product, and a copy of that product, is what you're contracted to provide. Unless the contract says it is a work for hire: then they own everything, raw or finished, and you are just being paid for your labor.

See the difference?


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David Knight
Re: Who legally owns footage??
on Apr 1, 2015 at 6:41:42 pm

I apologize in advance in case this specific example has already been posted/answered...

I understand copyright/ownership quite well with the exception of this: Let's say I am a W-2 employee as a full-time lead editor. Upon hiring, the employer contract states that the "company" will provide all necessary equipment (camera, audio, computers, software, etc.)
Over time, however, advances in technology renders their equipment obsolete. So let's say "company" doesn't pay to upgrade video editing software, doesn't purchase a new camera, but rather the W-2 employee is using their serial for purchased software, their personal camera equipment, etc.

No contracts of any kind were signed stating ownership of materials, nor was an updated employee contract made or signed about the use of equipment provided (or not provided) by "company."

In this scenario, what are the rights of the W-2 employee and the footage/published works that has been created with 95% of equipment paid for by the employee?
Especially considering that one such project was a full length documentary that has been distributed...


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Bill Davis
Re: Who legally owns footage??
on Apr 6, 2015 at 4:15:03 am

The answer in a situation such as yours is probably both everybody and nobody.

Without written documentation specifying otherwise, the person who shot the tape would technically become the AUTHOR of the work, HOWEVER, in the absence of properly assigned rights to the recording's actual CONTENT any and everyone, (and even every THING shown in the tape) could conceivably poison the ability of the owner to actually use the footage.

Every person in the tape could push back on their performance rights. Everything from the room design to the lighting design to the clothing being worn by the "performers" COULD conceivably be a point of contention in a battle for rights ownership.

The reason that professionals are always talking about rights is that if NOBODY properly assigns them, then they're ALL open to interpretation and litigation. Art on the walls? Who owns it? Background music playing? Is it licensed? The nice sweater being worn by the lady in the first row, knitted by her grandmother - granny technically owns the rights to her creative work there and you can't show it in your video unless you properly license it. That's the technical truth.

It's not as simple as "I shot it, therefore I OWN it." Because remember, anyone can sue anyone for anything. The key to proper rights clearances is to document that YOU have a clear and provable right to incorporate what you show into your program. The lack of rights clearance paperwork doesn't typically make it easier for you to claim ownership, it actually makes it harder. MUCH HARDER.

In the real world, it's also about power. If you push back against a richer and more powerful entity in a legal tug of war, expect them to bury you. Is it possible to win? Sure. But it's not easy and it's not typically cheap. Again, only properly executed rights assignments UP FRONT tend to protect you from getting sued over these issues. And it's still not a guarantee.

Welcome to the real world.

My civilian 2 cents. Ask a proper IP attorney for actual legal advice, mine is worth precisely what you paid for it.

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


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Richard Herd
Re: Who legally owns footage??
on Aug 4, 2014 at 11:10:40 pm

You should consult an actual attorney.

You have some weird stuff going, legally, and it is caused by the weird world of microbudget filmmaking.

It's generally applicable that the photographer owns the work unless a particular agreement supersedes that First Amendment right (in the US). In the weird world of microbudget filmmaking (a venture to avoid, imo), everyone is considered a collaborator, not an employee, not a contractor. Being either of those requires actual agreements; and those actual agreements require worker's comp insurance and proper labor conditions and so on. Microbudget filmmaking is not a work for hire agreement.

But wait there's more...

Copyright laws designate a work. The person who creates the work holds the copyright. Any work created from the original work is called a derivative work. So here you go: The writer owns the script, the original work, and the photographer collaborated and now owns the photography, a derivative work.


So the footage just sits. No one can do anything until there is an agreement -- which is obviously why people have agreements first.


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