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Who owns the raw files?

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Nae williams
Who owns the raw files?
on Jun 8, 2015 at 5:01:19 am

Hello all!

I recently shot my first music video as an independent artist. My budget was in between 4 to 5K..
I hired a director who has shot a handful of videos in the past, all have been independent artist videos and independent artists that he has worked with and for. I paid for the camera rental, the food, location, back up dancers, crew and apparel. This was a two day shoot, Per request of the director. A month after the video was shot he came to me and told me that he had to come out of pocket $900 usd. Over the budget, and that the agreed animator and video editor would not be afforded due to an overage of the budget. He let me know that he would have to edit it himself and a in new program that he had never used before. I quickly paid him the 900 back that he went out of pocket for and I paid the animator $250 USD directly. After many many edits we were able to come to an agreeable place with the video, however I am not 100% happy with the editing and I did want to explore my options with professional editors since he is not a professional editor. The final costs added up to over 6k which is obviously over the agreed upon 4800k. I know this is bad but this has been a learning experience for me since this is my first video shoot and I will not make this mistake again, we did not have a contract although the budget was agreed upon via text and email. I have asked him numerous times for a cost breakdown and never received one before or after the video was done. I still haven't even received any receipts. When I asked for the raw files without his editing over them he told me that he did not feel comfortable handing them over because he does not feel he was paid enough for them. Again, we never had a contract and never discussed who owned these raw files before I agreed to pay for the equipment rentals. Is this something I should take to an attorney? Who owns the raw files?


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Todd Terry
Re: Who owns the raw files?
on Jun 8, 2015 at 6:30:16 am

---my assumption is that you are in the US, if not, your mileage may vary depending on the laws wherever you are---


Well, you did make a ton of mistakes... but I won't beat you up over that because hopefully you have learned some valuable lessons and won't go down that road again. Please.

I won't really speak to the "Who owns the footage" issue, because that can be a gray area, depending on the terms of your deal. You'll likely get good advice about that from others in here (that seems to be a topic that tons of people in this forum are always eager to chime in on).

But I will mention something you might find useful about contracts. You said you don't have a contract.

BUT... you do have a contract.

To have a contract you must have three things, 1) offer, 2) acceptance, and 3) consideration. You have all three of those, an offer was made, and offer was accepted, and money (the consideration) came into play.

If you have those three things you have a contract... it doesn't matter if there was a building full of lawyers involved, or if it was two friends shaking hands over a cup of coffee. A verbal contract is just as legal, valid, and enforceable as one that is carved in granite.

Verbal contracts are harder to enforce though, because there is no written record of it, no signed paper, and the whole thing becomes a "he said / she said" kind of thing. That's the one thing that keeps a verbal contract from being exactly the same as a written one. One party can simply always say "No, I didn't say that."

But in this case you do have a paper trail... or at least an electronic one. Those emails and texts that spell out the terms are validation of the offer and acceptance. As long as they do say what the terms are regarding who does what and what is expected of whom and how much you are to pay, it's totally valid.

Irrespective of whomever actually owns the footage, if this guy is quibbling over such small amounts, my guess is that even the first mention of you "lawyering up" over this will compel him to hand over the footage.

Good luck, let us know how it turns out.

T2

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



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Nae williams
Re: Who owns the raw files?
on Jun 8, 2015 at 6:41:35 am

Hi there Todd! Thank you so much for your well written response. I am in the United States, Los Angeles to be exact. You do have my word I will not be making the same mistakes twice. You are correct, I should've worded that a little bit differently. We do and did have a verbal agreement on what was to be done but there was never any mention or talk of who owns the raw files. I assumed since I paid for everything that went without saying, only to be disappointed when he stated he wasn't paid enough to hand those over. I do have it in writing though where he states he would have an outside party edit the video only to be told after he received payment, a month after to be exact, that he would have to do it his self with no option of me hiring an outside party. When I told him I would hire an outside party to edit it, he then told me he doesn't allow anyone in his "mix." He is quibbling over such small amounts, he still comments on how he would've liked more money although he agreed on 4800k... And the video has already been finished. I do have a very reputable entertainment lawyer that I'm going to be speaking with on Monday, but it's always nice to get the advice of such creative people like yourself who deal with things like this on a day to day. So thank you again


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Ned Miller
Re: Who owns the raw files?
on Jun 8, 2015 at 12:45:31 pm
Last Edited By Ned Miller on Jun 8, 2015 at 1:03:59 pm

I have been to Small Claims Court twice and both times, when we approached the bench, the judge said the same thing: "Let's see your paperwork", meaning a contract. So I don't know how you would fare with a verbal agreement or a handful of emails. The judges are impatient, very busy, a lot of people waiting behind you. For this amount you don't want to get a lawyer involved.

If you email me privately I can give you a boilerplate Work For Hire clause for a contract so next time it will be plain who owns the footage. I assume he doesn't want to hand over the files because that's his leverage to get paid, I have done that myself. If he feels he's being "stiffed" it's more about him getting his money rather than who owns the footage. Why would he want to own music video footage of no economic or stock footage value? I imagine he wants to be paid what he feels he is due. When I read the post I thought how can you do a two day shoot, edit, dancers for $5K? To me it was under budgeted from the get go, but maybe prices in LA are cheaper?

As Terry said you made a few mistakes, it's always best to learn on other people's money. I'd suggest signing up for one month on Lynda.com for $25, go to Video Production, there's a NYU film school professor named Anthony Artis. He does a couple of courses on producing that I found valuable and I have been doing this for 30 years.

Lastly, I am very strict about the difference between the words Estimate and Quote. Estimate is squishy because the parameters of the job often change and who knows what Murphy's Law will enter, so I use Estimate on all my paperwork with clients. I try to stay within it but if factors change that I can not control, then there will need to be a bump up. If for some reason I am left holding the bag, then there's a "problem". This seems to be the situation you are in.

Good luck!

Ned Miller
Chicago Videographer
http://www.nedmiller.com
www,bizvideo.com


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Mark Suszko
Re: Who owns the raw files?
on Jun 8, 2015 at 2:36:54 pm

The paper trail of emails is only useful if the Director confirms in text what you say. If you said: "I'm paying x for so and so", and his responding email says something like "I understand you will pay x for so and so", then you have the "agreement" part of the verbal contract Todd mentions. If he comes back in that email with no response to your figure, or a DIFFERENT figure or set of terms, you don't meet the bare minimum standard of proof for a judge to show you had an agreement on the offer and the acceptance. Just that you had the consideration. Sometimes, just proving there was consideration is enough, it was in a small claims case I had to pursue once. But in that case, the dispute was that there was never ANY contract, and the consideration showed there must have been. Contracts can be slippery, in that even if you have a contract and neither side actually did ANY part of what was agreed, is it still enforceable later? IANAL, but I Do have the entire DVD collection of "The Paper Chase" at home:-)



This is a very muddy case as to if it was a "Work For Hire" or not, because both sides spent money. If those three magic words are NOT in writing somewhere, based on the way it's usually interpreted in the US, he's got you over a barrel. You're only entitled to the finished cut of the work, buy by the same token, he owns the raw footage but can;t use it anywhere else without your permission.


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Nae williams
Re: Who owns the raw files?
on Jun 8, 2015 at 4:09:49 pm

Hi Mark, thank you for your response and advice. I really appreciate it.

He didn't come back with a different figure that he agreed on, which he agreed on in writing. He agreed on the 4800k. The issue isn't the number agreed on, it's that neither of us spelled out in plain black and white, what the 4800k would entail. It wasn't even ever discussed.

That's good to know he cannot use the footage of me without permission. So thank you for that.

Also, again, in writing, he agreed there would be an outside party editing the video, and that didn't happen, even when I asked to pay for it. So the issue still remains, who owns the raw data.


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Nae williams
Re: Who owns the raw files?
on Jun 8, 2015 at 4:11:29 pm

Also, I might add, I ended up paying over 6k, which is obviously over the agreen on 4800k, which was not a problem for me, I paid it, so that also isn't the issue.


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Nae williams
Re: Who owns the raw files?
on Jun 8, 2015 at 4:04:17 pm

Hi Ned and thank you for your response! :)

Well I certainly wouldn't fight for the files without an attorney at this point. Also thank you on your offer of the work for hire clause, means a lot!

Per the budget, I had offered to pay an outside editor, he said no, I asked if we could shoot in one day instead of two, he said no. At the end of the day, he agreed on the 4800k, and so we went forward with it, no qualms until after the shoot was done. So this isn't an argument over the number agreed on, because he agreed on it.

The issue is, nothing was in writing with what that 4800k would cover.


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Mark Suszko
Re: Who owns the raw files?
on Jun 8, 2015 at 4:35:59 pm

Absent written proof that has the words Work For Hire on it, he owns the raw footage, you only own the finished work.

The extra expenditures he or you made don't enter into the main issue.

His big mistake was making a fixed-price contract for a project that had too many unknowns. A common way to do such work is to start from a best estimate, and have one contract for the shoot, and one for the post, then do the post work in three or more phases, paying a third up front to make the contract binding and pay up-front production expenses, the middle third, at some agreeable milestone like the first rough cut, the final third is paid upon completion/delivery after your requested changes or edits were made to your satisfaction. What's good about this kind of system is that if a project is aborted at any stage, the client only pays for as far as the progress went, and the producer/editor is paid for all the work done up to that point, neither person is left holding the bag for additional expenses without something to show for it.

In this case, where there were so many things in flux, a deal memo or contract could have saved you by saying: "increased expenses above a (set amount) over what was estimated must first be approved by the client."


Deal Memos are less intricate than formal contract language but what they do that's important is document expectations and responsibilities.
Never do anything in the future without at least this level of documentation.


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Mads Nybo Jørgensen
Re: Who owns the raw files?
on Jun 9, 2015 at 11:49:24 pm

Hey Nae,

Won't repeat all the other good advice here. However, if you are still talking it might be worth "horse-trading" on the following issues as per my understanding:

  • The video will not be used as is - neither you or the "director" can use it. At which point it is not fit for purpose. If you cannot come to an arrangement, then you should ask for your money back - all of them.

  • It is in neither party's interest to have the video shelved, as it would have been a waste of of money and effort + both parties needs to be published in order to find future fortunes.

  • There can be many reasons for why a creative will not hand over the source materials. One can be that there was issues with the footage, another can be professional pride, or just that they want to keep creative control. It may be worth exploring the point that you feel that you need a specialist music promo editor to complete the job and tidy it up, and that you will do so without harming the reputation of the director.

  • You could also add that all of the copyright to the footage lies with the director as long as both parties agrees that it must only be used for the purpose of producing your music promo, unless otherwise agreed mutually. However, you do need access to all of the rushes in order to get the final product that you expected and that the supplier, even when adding extra costs, failed to deliver.


I am not a lawyer, but in this case if you use one, you will need to be prepared to go to court - the cost of both lawyer, litigation (keeping in mind that you may loose and have to pay the other side), far outweighs the cost of doing the whole project with someone else. It would be interesting to see the reaction from the Director if they get a "cease and desist letter" from you demanding that make no use of any of the footage related to your production until a mutual agreement have been reached.

If he complains, do remind him that the substandard post-production was due to him being "Over the budget, and that the agreed animator and video editor would not be afforded due to an overage of the budget". However way he looks at it, in your opinion he was as the supplier in charge of the budget and never shared itemized accounts for the production. Which brings us back to the Not-Fit-For-Purpose, a line that will hopefully help you both to resolve your differences.

Good Luck - and don't give up!

All the Best
Mads

@madsvid, London, UK
Check out my other hangouts:
Twitter: @madsvid
http://mads-thinkingoutloud.blogspot.co.uk


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Nae williams
Re: Who owns the raw files?
on Jun 10, 2015 at 7:52:12 pm

WOw, such wonderful advice and i thank you all for it.

now when i asked for the video (the edited version of the video) raw files aside, the director told me that he wasn't going to send it over to me until i have a blog premiere it, although he is not apart of my hired creative team. I've hired an online PR to premiere the video, but after 5k almost 6k, am now being told I can't even have a download link to the video? This can't be legal? I would never and have never agreed to such terms with him. It seems to be a power struggle with him. I paid almost 6k and walked away with nothing. This seems the time to get an attorney involved?


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Mads Nybo Jørgensen
Re: Who owns the raw files?
on Jun 10, 2015 at 9:36:50 pm

Hey Nae,

Sounds like you should not be speaking directly with the director.

[Nae williams] "It seems to be a power struggle with him. I paid almost 6k and walked away with nothing. This seems the time to get an attorney involved?"

If you have the money and are willing to spend them, by all means hire an attorney.

One good reason to involve a lawyer is to move the problem away from yourself at an arms length - as in that you will no longer be having any direct communications with the other side, and that this "neutral intermediate" may help achieve a satisfactory outcome, rather than one of demands and counter demands (you want rushes, he wants publicity for the already finished product).

So yes, a legal representation can be a good thing to insert between you and the director.

However, to save some money, before going to the lawyer write up a list of what you want, and what you are willing to offer in return? Although you have paid above the agreed price, it will be easier for you to get what you want if you make the other side feel like a winner too.

All the Best
Mads

@madsvid, London, UK
Check out my other hangouts:
Twitter: @madsvid
http://mads-thinkingoutloud.blogspot.co.uk


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Richard Herd
Re: Who owns the raw files?
on Jun 9, 2015 at 6:25:49 pm

As an example, we cannot pick our favorite Michael Jackson song and make a music video and then claim to own the footage "because I shot it." A music video and the footage are derivative works of the original song and subject to a license agreement (and other agreements, for example, model releases). In this example, the shooter does not own anything. There is no document anyone can sign to change copyright facts. While this means the shooter needs a license agreement from the copyright holder of the original work (the song) before moving forward on an edit, I do not know if a civil suit could force the shooter to deliver the footage to its rightful owner, the copyright holder of the song. I suggest contacting an attorney, but throwing good money after bad is unwise. And that's probably the difficult part: this project is done and the footage is shelved. If you see the footage in another venue, then it is up to you to raise a suit.

Surely, this is not the first time ASCAP/BMI/RIAA has seen something like this. Maybe ask them too.


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Todd Terry
Re: Who owns the raw files?
on Jun 9, 2015 at 7:09:07 pm

[Richard Herd] "A music video and the footage are derivative works of the original song and subject to a license agreement (and other agreements, for example, model releases)."

Well... images and sound are two completely different things.

If it were a sync-sound actual performance of the song, then no, the shooter could make no claims to ownership of the audio portion of the footage... if there were any (and likely not, or at best wild sound of a scratch track that was being used only for lip-synching).

But of course many music videos are not performance videos at all, many are narrative, completely different scenes, completely different stuff other than an artist's vocal performance. Publishing, performance, or sync rights to the song would have no bearing on this footage at all, and the shooter could very possibly make a valid claim for it, depending on whether or not it was contractually stipulated as Work for Hire.

And of course we have no idea what the original poster's video content was... it could have been 100% performance, even an actual live performance of the vocalist. Or it might not even contain one frame of actual or simulated performance footage... all that is unknown to us.

T2

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



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Richard Herd
Re: Who owns the raw files?
on Jun 9, 2015 at 9:09:55 pm

[Todd Terry] "images and sound are two completely different things"

I hope the OP is still reading. To recap some but not all the issues required in a proper contract:

-- work for hire
-- original copyright/original work
-- derivative work
-- sync rights
-- performance rights
-- publishing rights

I very much suggest getting a lawyer to (a) wade through this, and (b) write up a proper contract. From there, the OP will be in a very strong business position.


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