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Re: Copyright status on Foley sound

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Mads Nybo Jørgensen
Re: Copyright status on Foley sound
on May 30, 2013 at 9:00:07 am

Hey All,

Working on a client project which has thrown up a question of ownership:

I'm interested to find out opinions of who holds the copyright on a foley created sound?
The engineer, the sound studio, the end client?
Would one need to ask for release notes before making a project public?

Any links to legal cases would be very much appreciated 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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Ty Ford
Re: Copyright status on Foley sound
on May 30, 2013 at 11:54:36 am

Hello Mads and welcome to the Cow Audio Forum.

Copyright laws vary by country, but the employment aspects may hold a clue. Was there a contract? Did it cover who owns the work? Here in the US, we have something called "work for hire." When you are doing work under a "work for hire" situation, you don't own the work. The person/entity who pays you does. If you were hired as an employee, with no other mitigations, I don't think you own the work.

My step-father was a civilian mechanical engineer for the US Navy. He created a number of devices. All of the patents were owned by the US Navy.

Next time, as you are entering a new project, if you want to retain the ownership of the work you do, consider putting it in writing that you retain the copyright, but license the work for use. You might want to say the license covers only use within the film. That would prevent them from publishing your work as part of a Foley library and selling it separately.

Regards,

Ty Ford
Cow Audio Forum Leader

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Mads Nybo Jørgensen
Re: Copyright status on Foley sound
on May 30, 2013 at 12:01:43 pm

Hey Ty,

Thank you very much for your reply.

This is not an employment issue, but more about rights to distribution without having the correct paperwork. As in that any agreement can only be executed if both parties have delivered their side of the bargain. Work in return for payment.

All the Best
Mads

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


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Ty Ford
Re: Copyright status on Foley sound
on May 30, 2013 at 12:10:23 pm

Mads,

So, you did the work, the project is done and they haven't paid you yet?

Please let us know the details.

Regards,

Ty Ford
Cow Audio Forum Leader

Want better production audio?: Ty Ford's Audio Bootcamp Field Guide
Ty Ford Blog: Ty Ford's Blog


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Mads Nybo Jørgensen
Re: Copyright status on Foley sound
on May 30, 2013 at 12:16:45 pm

Hey Ty,

Not me personally. But a friend of mine have done the work, got part payment, but not the full amount. The final project has got distribution, i.e. it is in the public arena. So the question relates to where the copyright for the uniquely created sound belongs and whether one could argue that without a release note it can not be in the public arena?

Makes sense?

All the Best
Mads

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


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Ty Ford
Re: Copyright status on Foley sound Calling Peter Groom!
on May 30, 2013 at 12:35:27 pm

Mads,

Laws in the US and UK may be different. Over here, that situation sounds like he doesn't own the work or copyright for the Foley unless previously agreed upon. So no harm, no foul concerning putting the piece out.

Again, British law may be different. I wouldn't want to comment on that, but Peter Groom may have an answer.

Regards,

Ty Ford
Cow Audio Forum Leader

Want better production audio?: Ty Ford's Audio Bootcamp Field Guide
Ty Ford Blog: Ty Ford's Blog


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Mads Nybo Jørgensen
Re: Copyright status on Foley sound Calling Peter Groom!
on May 30, 2013 at 1:37:23 pm

Hey Ty,

Well actually, I'm on the side that believes in that any transfer of copyright can not take place unless payment has been made, unless otherwise agreed by, in writing.

All the Best
Mads

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


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Bill Davis
Re: Copyright status on Foley sound Calling Peter Groom!
on May 30, 2013 at 8:36:49 pm

I think you're in a pretty weak position and perhaps already too late in the process if I'm reading your issue correctly.

They've got what they wanted. The work has been created. It's been released into the public viewing sphere. The cow is out of the barn.

At this point, any "transfer of copyright" technicality is kinda moot unless you're willing to first threaten to - and eventually bring suit for the violation of your IP rights.

And that is neither easy nor cheap in most cases.

Once the work is distributed, the only real recourse you have is to threaten the party with a legal claim should they continue to do so - the first step typically being some form of a "cease and desist" letter to give them notice of your claim of violation. If they ignore that, then you still have to bear the costs of a lawsuit to prove that they're knowingly using the work in violation.

Which, unfortunately puts the entire burden of proof on you.

The bottom line, is that if you're going to make an ownership claim to intellectual property - it's seldom smart to do it after the work is released. It's certainly possible to get relief after the fact - but weak compared to asserting rights prior to initial distribution until all the legal matters are settled.

And I'm not an IP lawyer, but I've never heard of a single case where "incidental" sounds like Foley work were successfully defended as qualifying IP property in a lawsuit. The legal system (at least in the US) is often built on case law and precedent. And I wouldn't guess there's much of that in play here.

FWIW.

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Mads Nybo Jørgensen
Re: Copyright status on Foley sound Calling Peter Groom!
on May 30, 2013 at 11:30:26 pm

Hey Bill,

Thank you for your reply.

The case is a lot more complex than what I give it credit for and as far as I'm aware, the horse is still in the stable. However, the basic question was anyone had ever heard of a Foley artist claiming copyright ownership on the basis that the other party had not executed their part of the agreement.

Your point about case law and precedent is exactly what I was investigating - as in there may never have been a case to determine this point, but that is not to say that there couldn't be one.

All the Best
Mads

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


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Peter Groom
Re: Copyright status on Foley sound Calling Peter Groom!
on May 31, 2013 at 2:55:25 pm

Hi
Im afraid id not know regarding law issues, and as the "law" so often seems to side with the opposite to my way of thinking, a guess wouldnt be helpful.
Sorry
Peter

Post Production Dubbing Mixer


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Andrew Rendell
Re: Copyright status on Foley sound
on May 30, 2013 at 8:21:52 pm

link to govt web site
http://www.ipo.gov.uk/types/copy/c-ownership/c-commissioned.htm

It should be written in one's contract who has copyright, usually the production company want it and it'll be written in the contract something like "In consideration of the fee... the freelancer assigns intellectual property rights to the company..." or "...non-exclusive, royalty free, irrevocable licence to use...".

Technically (although it's complicated, see the government link), and in my opinion morally, if there isn't a contract which specifies who has the copyright and payment hasn't been made then creative work remains the copyright of the creator. However, if your friend doesn't have a contract or the contract doesn't specify the intellectual property rights ownership then arguing about it is most likely to be a world of pain where no one will ever come out well and any victory will be a pyrrhic one. He/she might have a case to pursue the outstanding payment through the small claims court (IANAL and I'm guessing here because I don't know the full facts but a court judgement against the production could put a distribution company off handling the film so a 'letter before claim' might elicit payment to avoid it getting to court).

TBH, if it was me I'd walk away from the copyright issue, put it down to experience, and be more attentive to my contracts in the future.

I'd chase the payment though.


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Mads Nybo Jørgensen
Re: Copyright status on Foley sound
on May 30, 2013 at 11:25:10 pm

Hey Andrew,

Thank you very much, just what I needed.

All the Best
Mads

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


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Ty Ford
Re: Copyright status on Foley sound
on Jun 1, 2013 at 1:04:12 pm

What I have done in the past (last time with The British Museum who came to Baltimore to record some audio for a touring show) was to carefully and determinedly call and leave messages (because they would never answer).

With The Brit, since they were "over there", I emailed instead of calling. After not getting a response after several days, I went to their web site, found a publicity employee and sent them an email. I forwarded a very accurate record of my attempts to contact them about payment, with copied emails, etc. and letting them know that I was very capable of letting an enormous number of people know that they had stiffed me in an extremely rapid fashion.

This got their attention. Because they still seemed either totally unorganized or unwilling to pay in a timely fashion, I did as I told them and began to release info to forums I frequent. I had a few chaps in London offer to go down and knock on their door for me.

I did get paid. I doubt they'll ever call me again, and I'm quite OK with that.

In another "bad pay" situation here, I went through the same procedure. After 30 days (or 60, I forget) I called and left a message. Hearing no response I waited several days and called again. Reminding them that I had called previously with the date and time of the call and that I was keeping a record of my attempts to contact them and their lack of response.

Monday of the next week I called, Tuesday of the next week I called. Everyday that week I called and left calm but concerned messages about payment and their lack of response and requesting that they contact me about payment. Friday I called and let a message that if I did not hear from them on the following monday and did not receive payment by that friday, that I would begin to circulate this body of information about their misconduct to a number of different forums, and to the PR/Marketing contacts of the client list they posted on their web site. I never ranted. I never screamed or called them bad names.

This last call did get their attention. I was told that the contact, "Had never heard of anything like this!!!!! This was outrageous!!!" I very calmly said that their conduct was the issue and I was as upset by the situation as they were and that they could resolve it and hope to salvage what was left of their professional reputation by paying me.

It was friday afternoon at 4pm. I asked when I would receive payment. He told me there was no one there to cut a check. He had a credit card. Could I take that. (knowing I probably couldn't) I told him I had a paymaster that probably could. I hung up, called the paymaster, let him know what was up. He called, took the credit card number, verified it was good and accepted payment. I never worked for that company again. Who would want to! Yes there are stinkers out there.

Incidentally, I call this approach, "The big, slow vise" because you begin to apply pressure, remain very, very calm and never let up until you get paid. I don't like putting that much energy into someone else's bad behavior, but sometimes you have to. I have only had to use the vise 3-4 times over the last 27 years.

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Ty Ford Blog: Ty Ford's Blog


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