who owns it?

[Michael Richard]

Who owns the production.
Me the producer or the client who pays.

How does this usually work?

[Luis Caffesse]

Well, that depends...first off, who are you? The editor, the director, the dolly grip? (not trying to knock dolly grips here)

Seriously, it depends on the production, and it is usually outlined in the contract.

The rights can be split up also, meaning a client may retain the rights to the finished product, but the production company will retain the rights to all the raw footage.

I'm not sure what sort of productions you are involved in, or what your role is, so it's hard to tell you what is "normal" for your situation.

-Luis

[Bill Pryor]

You need a legal contract because there aren't any real standards anymore. It depends on the deal you do with your client. We always figure that the client owns the final product; however, there are cases in which we've been paid for a project but retain the right to market it ourselves to certain types of businesses, which is also common.
There is a precedent from still photographers in which case the client contracts for a certain number of prints, or dubs of a show, and the producer owns the original footage and masters. There are also situations in which the client owns the master tapes but the producer owns the original footage.
Really, it's all over the board.
I've always found that it's a pretty good sales technique to say in the proposal or treatment that it is our policy that the client retains ownership of all the original and master tapes. They usually like that, and I figure I've been paid, so it's their footage anyway. If I went to Alaska or Afghanistan or someplace like that where I might come back with some very cool footage that might have long term value for me, I'm sure I'd negotiate a different sort of arrangement.

[Paul Tauger]

As a matter of law (not custom):

If you are an independent contractor, i.e. you supply your own equipment, decide how the job gets done, don't receive a W2, etc., you own the _copyright_ for the finished product (but not necessarily the physical tape) absent an agreement to the contrary.

If you are an employee, i.e. you use your boss' equipment, do what he says, receive a W2, etc., then your employer owns the copyright for the finished product, as well as the physical tape, absent an agreement to the contrary.

Law will control over industry custom in this case.

[Luis Caffesse]

Paul, I think the "do what he says" portion of your description makes it a bit more nebulous than you are making it.

How do you distinguish between something that is "a work for hire" and a one that is not?


I don't think it is so clear cut.

In the end, you need a contract.
Or, better said...in the beginning, you need a contract.

-Luis

[Paul Tauger]

Luis, it usually is pretty clear cut.

If you own the gear,
If you decide what editing software to use,
If you don't have taxes withheld from your paycheck,
If you hire and are responsible for your own assistant,
If you get sued if the client isn't happy . . .

You're an independent contractor.

If you use your boss' gear,
If you edit using his/her software on his/her computer,
If you have taxes withheld from your paycheck,
If you are not responsible for your own assistant,
If your boss gets sued if the client isn't happy . . .

You're an employee.

That said, it's a fact-specific determination. It's always a good idea to have a contract which specifies who owns what.

[Luis Caffesse]

Paul, my apologies, I was actually confused on the "work for hire" doctrine myself.

I did a quick search online, and came across this site explaining a little about it:

http://www.irmi.com/Expert/Articles/2003/Warren03.aspx


The article clearly says:

"The copyright statute, 17 U.S.C. § 101 et seq., is very clear that it is the author of the work who owns all the copyrights in it. "


So, Michael, I would go back to my original question and ask, who are you?

You mentioned the Producer, and the Client.... are you the author?
Do you and the producer work for the same company?
Who did the client have a contract with?


-Luis

[Dave Perry]

I have similar questions. I'm shooting video for a band and they sent me an agreement to sign and bring to the next shoot, which is this Friday. They have the benefit of having a lawyer as a guitar palyer.

I followed the link Luis posted and actually went to copyright.gov to read the primary text refered to.

My question is, who owns the rights to the actual raw footage I shoot at any given show? I have no intention of "owning" their movie when the "work" (ie: final product, DVD for distribution) is finished, but want to keep the raw footage or at least copies, for future use.

Below is the bulk of what they want me to sign:

"Whereas, Indecision has paid Producer, and Producer has accepted as payment in full, for video and film recording products and services over approximately the last eighteen (18) months; and

Whereas, Indecision may continue to pay Producer for video and film recording products and services in the future.

Therefore, the parties hereto agree as follows:

Producer hereby agrees that all film, video, graphic, audio and other related work or works created pursuant to this Agreement is confidential and proprietary to Indecision and that Producer shall not copy, disclose, transfer or permit to the copied, disclosed or transferred any materials or text created or written by Indecision in any way except as necessary to provide the recording services. Upon completion of these services and products, or at the request of Indecision, Producer will provide Indecision with the master copy of all recordings, tapes, videotapes and the like, and any other materials and texts provided to Producer by Indecision. Producer agrees that all rights in the sound recordings, songs or other creative works arising from this Agreement (“Works”), including copyrights, are solely owned by Indecision. Producer acknowledges and agrees that any copyrightable contribution that Producer may make or may have made to any Work is and/or was a work for hire, falling into the statutory categories under 17 U.S.C. § 101 for work for hire and belongs from the moment of its creation to Indecision. In addition, Producer hereby assigns, conveys, transfers and grants to Indecision, for good and valuable consideration, receipt of which is acknowledged, any and all rights, including copyrights, which may ever be deemed to arise in Producer’s favor as a result of Producer’s contribution to the Works, and authorize the recordation of this Agreement and assignment with the United States Copyright Office."

Any suggestions as to ammendments I can or should make to this before agreeing to it will be helpful.

BTW, If you'd like to see some of the work, go to www.indecisionthemovie.com.

Thanks a bunch, Dave

[Luis Caffesse]

"Producer acknowledges and agrees that any copyrightable contribution that Producer may make or may have made to any Work is and/or was a work for hire, falling into the statutory categories under 17 U.S.C. § 101 for work for hire and belongs from the moment of its creation to Indecision."

Dave, sounds to me like they own the copyrights to everything that you create for them.

I'm no lawyer, but that sounds pretty clear.


-Luis

[Dave Perry]

Thanks Luis,

Where does that leave me regarding using amterial I shot for them in my own stuff? Sounds like I need their premisiion.

I'm new at video production, as you can tell, but want to continue with it. I've been working for them under a "gentleman's agreement" for the last year. We haven't yet gotten to the post production stage yet as they still want to capture footage. The final product will be a DVD for sale on their web site and where ever else they can sell it. So far we haven't decided if I will get a flat fee for producing the final cut and DVD master or receive a portion of sales.

Any recommendations on that?

Thanks - dp

[Paul Tauger]

There are a couple of weird things in the agreement, which I'd like to discuss (as a general proposition -- this isn't legal advice) at some length. I'm on the road until Friday, and I'm exhausted, so I can't do it now. If you want, post something to this thread at the end of the week so it will come up to the top as a new post and I'll try to provide some thoughts.

[Dave Perry]

Paul,

I appreciate your willingness to comment. I'll be on the road by noon friday to shoot another show and deliver the contract. Maybe you can comment briefly before then if you have time.

Thanks.

[Paul Tauger]

Okay, this isn't legal advice, just some observations:

1. The contract recites past payment as consideration. That's contrary to law in most jurisdictions, i.e. you can't enforce a new contract based on an already executed promise (in this case one to pay).

2. The contract says the producer _may_ pay in the future. This also means that he may not. Where there is the possibility of a course of performance that results in no consideration, the contract becomes illusory and unenforceable in a many jurisdictions.

3. The contract identifies the footage shot as confidential. I thought this was video of public performances of a band. If its a public performance, the video isn't confidential. If the video is shown publicly, it isn't confidential. Trade secret law requires that the material which is the subject of the trade secrets not be disclosed publicly.

4. They could, in theory, construct an enforceable agreement that allows you access to the band in exchange for your assignment of copyright.

I can't advise you what to do with respect to this agreement. All I can say is that, though at some point they may have some legal input, this thing is clearly not drafted by a lawyer and has a number of problems. If your intent is to give them what they're asking for, i.e. copyright and the master tapes, then there isn't a problem. If you dont want to do that, then you need to negotiate something with them.

Gotta run!

[Dave Perry]

Thanks Paul. I know you'r ebusy but just wanted to let you know that the contract actually WAS drafted by a contract lawyer.

[Richard Alvarez]

Dave,
My experience is that Paul's comments are dead on, and it would be wise for you to get your own lawyer on board if you want something other than what their contract provides.

When I read the clause you posted, I cringed. You seem certain it was drawn up by a lawyer, so I will assume you are correct.

As my good friend, a gifted surgeon, once told me..."I didn't get all the questions right on my med school exams..."