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Taking Care of Business
The pen and paper aspects of DV -- put it in writing!


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Old July 29th, 2008, 09:22 PM   #46
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Originally Posted by Steve House View Post
Likewise a videographer contracted to shoot a video for a retail client such as a wedding couple is selling a service as a vendor in the retail marketplace and his standing as an employee of the couple is in no way different from the plumber fixing your pipes. You are under the impression that the simple act of an exchange of currency in return for services rendered constitutes "employment." I think your doctor or dentist (and the courts) would disagree. So the issue becomes, is a video of the CEO's welcoming speech or the happy couple's wedding vows considered a photographic portrait commisioned by the subject?
But all these variations would fall under the first category, especially the wedding example. "Employment" has nothing to do with it... as laid out in the first quote, the exchange of payment primarily determines ownership of the property. Comparing it to plumbing or dentistry is apples and Japanese box watermelons.

The only thing debatable at this point is the ownership of unpayed work, while volunteering for productions that don't have agreements covered under contracted service or apprenticeship.


PS. I don't think my dentist would contest the fact that the intellectual property of my fillings is mine and mine alone... I think any judge who has been under the drill would agree with me. Actually, under the first article, they would be mine since I paid her to do them.
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Old July 29th, 2008, 09:36 PM   #47
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I think there's a distinction between ownership of copyright and ownership of the media in which the copywrited content resides.

For example, you can't make copies of wedding videos for any purpose not authorized by the folks who hired you (because they own the copyright), but the tapes (I believe) belong to you. Of course, this is the real world in 2008 and I'm sure they can make copies of the DVD by themselves, but I think you are under no obligation to turn over the original high quality recordings.
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Old July 30th, 2008, 05:22 AM   #48
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Originally Posted by Dylan Couper View Post
But all these variations would fall under the first category, especially the wedding example. "Employment" has nothing to do with it... as laid out in the first quote, the exchange of payment primarily determines ownership of the property. Comparing it to plumbing or dentistry is apples and Japanese box watermelons.

The only thing debatable at this point is the ownership of unpayed work, while volunteering for productions that don't have agreements covered under contracted service or apprenticeship.


PS. I don't think my dentist would contest the fact that the intellectual property of my fillings is mine and mine alone... I think any judge who has been under the drill would agree with me. Actually, under the first article, they would be mine since I paid her to do them.
Your own posting refers to employment ...
Quote:
(3) Where the author of a work was in the employment of some other person under a contract of service or apprenticeship and the work was made in the course of his employment by that person
. That does NOT mean that they are simply being paid to make the work, it clearly says the copyright of a work created by a bona-fide employee during the course of his employment belongs to the employer. You seem to be locked into the idea that the exchange of money always makes someone an employee. It requires more than simply being paid to make on an employee. An independent contractor is NOT an employee and so that provision does not apply to works created by a contractor. The copyright to a work created by a contractor remains with the creator unless the contract with the client explicitly transfer the rights to them, even if the work is made in exchange for a professional fee.

Here is the US code (and commentary) and if you look farther into the Canadian version you cite I think you'll find it's substantially the same since both derive out of the Berne Convention.

Quote:
Works Made for Hire. -- (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. (17 U.S.C. sec 101)

The first situation applies only when the work's creator is an employee and not an independent contractor. The determination of whether an individual is an employee for the purposes of the work made for hire doctrine is determined under "the common law of agency". Although the distinction between an employee and an independent contractor can be difficult to analyze in some situations, it is clear that a work created within the scope of a regular salaried or hourly employee's job is a work made for hire. Typical examples of works made for hire are a software program created by an employee programmer or ad copy created by a marketing department employee.
...
If a work is created by an independent contractor or freelancer (that is, someone who is not an employee), the work can be created as a work made for hire, or not. In order for it to be a work made for hire, all of the following conditions are required: i) the work must be specially ordered or commissioned; ii) the work must come within one of the nine categories of works listed in the definition above; and iii) there must be a written agreement in advance between the parties specifying that the work is a work made for hire.
I think the reference to "commisioned work" in your Canadian cite is referring specifically to the same situation as provision 2 in the American and if you examine the whole of the Candian law I suspect it will say subtatially the same thing as the American. Would love to see your source.

For US law, see http://www.copyright.gov/circs/circ9.html Note the specific conditions in the Law of Agency spelled out there that must be met in order to establish if a person being paid is in fact an "employee."

-----------

Found the Copyright Act online. From the full context, the provision you cite does indeed appear to apply to situations such as your going to your neighborhood Sears Portrait Studio or your local PetSmart with Fluffy the Bunny and commisioning a portrait to be made. In that specific situation, the person who pays for the portrait does indeed own the copyright to the image. But there is no indication that will extend to film or video images, or sound recordings. And provision 1, which you did not cite, says clearly and unambiguously that ownership of copyright belongs to the author of the work EXCEPT in the specific cases delineated in the sections you quoted, neither of which apply to the situation of our original poster.
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Last edited by Steve House; July 30th, 2008 at 07:52 AM.
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Old August 4th, 2008, 10:23 AM   #49
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Originally Posted by Steve House View Post
Your own posting refers to employment ...
. That does NOT mean that they are simply being paid to make the work, it clearly says the copyright of a work created by a bona-fide employee during the course of his employment belongs to the employer. You seem to be locked into the idea that the exchange of money always makes someone an employee. It requires more than simply being paid to make on an employee. An independent contractor is NOT an employee and so that provision does not apply to works created by a contractor. The copyright to a work created by a contractor remains with the creator unless the contract with the client explicitly transfer the rights to them, even if the work is made in exchange for a professional fee.
Steve, you are hung up on the concept of being an employee... It does NOT say "bona-fide employee... It says... one more time...

Quote:
(3) Where the author of a work was in the employment of some other person under a contract of service or apprenticeship and the work was made in the course of his employment by that person,
This is not talking about being an employee as per your previous (and accurate) description. This defines the notion of employment in this case as a "contract of service"...

So what counts as a contract of service? I think this is the final answer to our big question of who owns the copyright, so work with me here...

If I hire you for a one off shooting event, does that count as employment under a contract of service? I would imagine, probably yes.

If you come out to shoot something I'm doing, without an agreement as to a specific project, compensation, or purpose, then I'd say probably not.

We need to find something that gives solid terms of what forms a contract of service.


Quote:
Would love to see your source.
The website of the government of Canada.
http://laws.justice.gc.ca/


Quote:
But there is no indication that will extend to film or video images, or sound recordings.
No, as I said before when I first posted this... this is for photographs... In Canada... and may differ from video from country to country.


Quote:
And provision 1, which you did not cite, says clearly and unambiguously that ownership of copyright belongs to the author of the work EXCEPT in the specific cases delineated in the sections you quoted, neither of which apply to the situation of our original poster.
That's a no-brainer... We've all agreed upon that since the start of the thread and it isn't part of the current discussion.
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Old August 4th, 2008, 03:12 PM   #50
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Originally Posted by Dylan Couper View Post
Steve, you are hung up on the concept of being an employee... It does NOT say "bona-fide employee... It says... one more time...

(3) Where the author of a work was in the employment of some other person under a contract of service or apprenticeship and the work was made in the course of his employment by that person,

This is not talking about being an employee as per your previous (and accurate) description. This defines the notion of employment in this case as a "contract of service"...
And that clearly says that the person in question is a regular employee. Just what the heck do you think the words "employment ... under a contract of service" means? If you are a regular salaried employee or working for a wage you are employed under a contract of service. But a vendor who sells you his services where you are one of a number of clients who he provides those services to is not working FOR you under a "contract of service" as your employee.

Quote:
So what counts as a contract of service? I think this is the final answer to our big question of who owns the copyright, so work with me here...

If I hire you for a one off shooting event, does that count as employment under a contract of service? I would imagine, probably yes.
You would imagine wrong. There are several principles of common law, shared by both the US and Canada that define who is and who isn't an employee and what working conditions determine a "contract of service" of employment.

Quote:
Employer-Employee Relationship Under Agency Law

If a work is created by an employee, part 1 of the copyright code’s definition of a work made for hire applies. To help determine who is an employee, the Supreme Court in CCNV v. Reid identified certain factors that characterize an “employeremployee” relationship as defined by agency law:

1) Control by the employer over the work (e.g., the employer may determine how the work is done, has the work done at the employer’s location, and provides equipment or other means to create work)

2) Control by employer over the employee (e.g., the employer controls the employee’s schedule in creating work, has the right to have the employee perform other assignments, determines the method of payment, and/ or has the right to hire the employee’s assistants)

3) Status and conduct of employer (e.g., the employer is in business to produce such works, provides the employee with benefits, and/or withholds tax from the employee’s payment)

These factors are not exhaustive. The court left un-clear which of these factors must be present to establish the employment relationship under the work for hire definition, but held that supervision or control over creation of the work alone is not controlling.

All or most of these factors characterize a regular, salaried employment relationship, and it is clear that a work created within the scope of such employment is a work made for hire (unless the parties involved agree otherwise).

Examples of works for hire created in an employment relationship are:

A software program created within the scope of his or her duties by a staff programmer for Creative Computer Corporation.

A newspaper article written by a staff journalist for publication in the newspaper that employs him.

A musical arrangement written for XYZ Music Company by a salaried arranger on its staff.

A sound recording created by the salaried staff engineers of ABC Record Company.

The closer an employment relationship comes to regular, salaried employment, the more likely it is that a work created within the scope of that employment would be a work made for hire. However, since there is no precise standard for determining whether or not a work is made for hire under the first part of the definition, consultation with an attorney for legal advice may be advisable.
Note in the examples that works created as part of regular, on-going employment are specifically mentioned. While this is quoted from the information provided by the American copyright office, I suggest that it applies equally well to us. Though an American court case is mentioned, the Court's statements are based on the principles of common law that we share with them, not specific statute law.

In the context of a videographer shooting at your event, if you provide the camera, tell him what and when to shoot directing the specific shots he takes, take delivery of the raw tape at the end of the shoot and/or supervise the editing, he would probably be considered your employee for the event. If you set his schedule, withold taxes, etc, he's almost certainly your employee. But if you hire him to deliver a one-off finished product then he's probably not an employee even though you requested he make the video and you pay him for it.
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Old August 10th, 2008, 09:28 PM   #51
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And that clearly says that the person in question is a regular employee. Just what the heck do you think the words "employment ... under a contract of service" means? If you are a regular salaried employee or working for a wage you are employed under a contract of service. But a vendor who sells you his services where you are one of a number of clients who he provides those services to is not working FOR you under a "contract of service" as your employee.
Steve, I think a contract of service means.... (drumroll).... a contract to perform service. You know Steve, instead of trying to slight me, you could actually have been useful and help provide a definition... Are you here to help or here to scrap?

Quote:
You would imagine wrong. There are several principles of common law, shared by both the US and Canada that define who is and who isn't an employee and what working conditions determine a "contract of service" of employment.
And...
Quote:
In the context of a videographer shooting at your event, if you provide the camera, tell him what and when to shoot directing the specific shots he takes, take delivery of the raw tape at the end of the shoot and/or supervise the editing, he would probably be considered your employee for the event.
Steve... you say my example is incorrect... and then right below it you use almost the same example I just made supporting the same point I was trying to make? Brilliant move! Say that I'm wrong.. then say the exact same thing and proclaim it right! I bet you can win all kinds of arguements with that!

Unfortunately, I have better things to do than join you in grade three rhetoric.

This thread has gone on far to long. There's plenty of information here for readers to make their own interpretations. Case closed.
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