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Old June 18th, 2008, 11:20 AM   #1
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Who owns the footage anyway ???

Over the past few years have been taping an incredible Musician who has basically started from scratch after 40 years with a certain Acapella group singing from street corners to concert halls.

Although there is no written contract stating who has rights to the footage it has been verbally agreed the footage would be for the archive and could be used to help tell his story in a documentary. Kind of like the movie "Standing in the Shadows of Motown : The Funk Brothers".

Except for once or twice when they helped pay for tapes or a hotel room at a location shoot I have volunteered my time, money and travel expense.

*** Just received an email that am not sure how to respond to, here's an excerpt:

"Hope you are well & busy doing what you love.

I am wondering who really owns the film footage you shot of --- & the guys? Is it yours? Is it ours? Iím hoping it belongs to me & --- & of course our plan is to pay you for your time, talents & supplies eventually.

I think it should all be copied for safe keeping. I would like to place a copy in a safe deposit box. Who knows what opportunities will present themselves? ... But --- & I may have the opportunity to hand it all over to a film maker & I need to have access to it at any time of day to show it to some industry folks...

Please share your thoughts "

Apologize for the lengthy post.

Basically want to know who owns the footage anyway and how can I make the footage available to the filmmaker without handing over the original tapes ???

Thanks guys for your thoughts.

Ken B.
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Old June 18th, 2008, 11:33 AM   #2
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First question would be is there any music on these tapes? If so, the copyright for the music would be held by the composers and performers of the music, so that will need to be cleared.

You would normally hold the copyright to the images, although depending on the arrangement you might need a release form for appearing in the film signed by the musician. Broadcasters usually like to have a paper trail, so it would be safer to get the musician to sign one.
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Old June 18th, 2008, 12:32 PM   #3
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A good portion is taping the making of a CD at the recording studio. Most if not all the songs recorded are cover songs.

There are some interiews, reaction shots and some B-roll. Am not sure who the "film maker" is who may need the footage for the documentary.

There were no release forms signed. One of the Musicians since has passed away.

Would it make sense to import the footage on external hard drive(s) that they provide and keep the original tapes in my possession and leave it up to the documentary Producer(s) to acquire the releases etc. ?

What if the Producer(s) have a budget ? ... a lot of personal time, effort and expense went into getting the footage.

Just want to do what's right and fair as I know the Artist does to.

thoughts ?
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Old June 18th, 2008, 01:08 PM   #4
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NOTE: For those working in Canada, please see the actual laws in Canada on page 3 of this thread.

Super simplifying this, and a big generalization (amended):

If you are working independently in any roll, you control the footage.

If you are working for someone, but creatively (say as a cinematographer), you might own the footage, or might not, independently or collectively, depending on your agreement with the client/producer. If you haven't signed the rights away, you could have a claim to them.

If you are working as a camera operator for someone, you don't likely own the footage.



You do not own or have any license to do anything much (some exceptions) with their image/music without their consent, as you have no written agreement with them.

There are lots of exceptions of course, and lawyers could swing this one way or the other, but it looks to me like in this case, you own the footage. What you want to do with it is up to you. You could charge them, donate it to them for credit, offer to cut it into something for money/credit... whatever.

Anyway, how to hand this over to another filmmaker? Simply log it to your computer and ask them to bring you a portable hard drive. Upload it to that and hand it off.

I should caution you about a few things from the email you received.

Quote:
of course our plan is to pay you for your time, talents & supplies eventually.
They will NEVER pay you. This is the standard line that indie videographers get. It's BS. You'll never see a penny. If they want your footage... THEY PAY UP FRONT. Bottom line. $100 in your hand now is better than a promise of $10,000 when they sell the project... If you do give it to them with a promise of getting paid later... Get it in writing, with explicit details as to when and how much they will pay you. Not that it will matter, you still won't get paid. :)

Quote:
Who knows what opportunities will present themselves? ... But --- & I may have the opportunity to hand it all over to a film maker & I need to have access to it at any time of day to show it to some industry folks...
I know what opportunities will present themselves... none. None for you anyway once they have your footage. Getting the footge to have at a moments notice requires that you get paid... paid up front.

Here is a personal example that you might find helpful...
I've had numerous instances similar to yours where people who weren't clients wanted "their" footage. (For example: I was shooting my client on stage during an event and also picked up another speaker as well.) I simply state that if they want footage transfered from MY tapes, I will be happy to provide it on either DVD or hard drive for $300 per hour of raw footage with open license. Some of them are happy to pay $300 for this...

But most of the time, it goes like this:
"Can I just get the tapes from you? I'll transfer it on my own," they always ask, being cheap b**tards...

"No, " I say, "they are part of my archive."

"But it's MY footage." They always reply.

"That's nice, but it's on MY tape."

"What if I give pay you the cost of the tape?"

"Yes, that's fine, but I'll have to find it in my archive, which will take about an hour. I charge $150/hr, so send me $150 + $10 for the tape and I'll have it for you for tomorrow."

I've never had anyone take me up on the offer. :)
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Old June 18th, 2008, 01:29 PM   #5
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This is indeed a thorny issue, and one fraught with imponderables!

I disagree with Dylan in regards to if they hired you they own the tapes/footage. Unless that is spelled out in the hiring agreement, it is still open to interpretation. When you hire them, professional photographers own the negatives and reproduction rights to their work, unless other arrangements have been made (and paid for!). In my opinion, you own the footage since you are the one who invested your skills in capturing the moments on tape.

If they want the footage, particularly to hand over to another "filmmaker", I personally would not do so without immediate compensation. If they want to "pay you for your time, talents & supplies eventually", the word eventually is far too vague and unreliable. It is effectively meaningless.

Paying for a few tapes and a couple of hotel rooms is only paying (partial) expenses. It is in no way compensation for your skills as a videographer.

I would not release anything to them until an agreement is spelled out in detail (and it would probably be a good idea to have an attorney look it over as well) and compensation agreed upon.

This does not have to become a contentious issue with them, but it does bear some careful scrutiny, for everyone's protection.
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Old June 18th, 2008, 02:09 PM   #6
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Quote:
Originally Posted by Ken Beals View Post
A good portion is taping the making of a CD at the recording studio. Most if not all the songs recorded are cover songs.

There are some interiews, reaction shots and some B-roll. Am not sure who the "film maker" is who may need the footage for the documentary.
Certainly the music will need to be cleared, if not by you, by the film maker who wants the footage. Clearing music for use in a film can be expensive.

It's usual if you're hired as the DP on a film the production company will own the copyright.

However, this sounds a more ad hoc arrangement with you acting as the film maker for a possible future documentary or other future use, so you should hold copyright (or part copyright) in the images but the musicians still hold rights so far as their musical performances are concerned. Certainly you should sort out the release forms with the surviving musicians and any performing rights with them and the estate of the dead musician.

You should really have words with an entertainment lawyer about this, it's pretty complex as per usual with music. You can't really rely on the legal advice in a forum and it sounds like you're going to need contracts drawn up.
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Old June 18th, 2008, 03:07 PM   #7
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Appreciate the input. I do know a lawyer who specializes in entertainment.
Sounds like a good time to place a call.
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Old June 18th, 2008, 03:11 PM   #8
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Quote:
Originally Posted by Frank Simpson View Post
This is indeed a thorny issue, and one fraught with imponderables!

I disagree with Dylan in regards to if they hired you they own the tapes/footage. Unless that is spelled out in the hiring agreement, it is still open to interpretation. When you hire them, professional photographers own the negatives and reproduction rights to their work, unless other arrangements have been made (and paid for!). In my opinion, you own the footage since you are the one who invested your skills in capturing the moments on tape.
I did make a pretty sweeping generalization, there are always many interpretations. :)

As Bryan points out though, if you are hired as DP on a shoot, you aren't entitled to ownership of the footage. The same applies to most creative content anywhere in the world. If you write code for Microsoft, Microsoft owns it. If you design a cold fusion generator while you work at Enron, Enron owns it. If you are hired as a videographer to shoot an event video, ownership of the work defers to the producer/employer.

However, we do both agree that this isn't the case in Ken's situation, as it seems he went and shot freelance, Ken likely owns the footage. Of course, we're only hearing his side of the story.

Ken... go call that lawyer! :)
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Old June 18th, 2008, 03:36 PM   #9
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I have yet to see a carpenter charge for the construction of a house based on the cost of materials alone.

If they're willing to just pay for the tape, then give them blank tapes. Fair is fair.

But if a lot of hard work went into covering these guys doing their recording, then that work has a value. What you charge should be based on that value.

As for who owns the material, that's to be determined by agreement. If it's work-for-hire then they might own it. If it's something you did on your own, as Dylan said, then you might own it. Either way, you're entitled to fair compensation.

Regarding usage, if they signed a release then you can use it as per the release. If there's a dispute and there's no signed release, you might be able to put up a defense based upon implied consent to appear: They knew they were being filmed for a given purpose, and by openly cooperating with you in your endeavor they agreed to allow the use of their image in your project. Best to check with an attorney in all these matters.

If it becomes contentious you might never be able to use that material. And if they refuse to compensate you, then there's always the option of just sitting on the material and never releasing it. Whatever you do, don't turn over anything unless you're willing to give it away for free. Once they get their hands on it, you have no leverage whatsoever. You can sue, but that costs money, and after legal expenses, you might gain nothing. You could even be worse off than you started.

And as mentioned earlier, promises of payment are hardly worth the paper they're written on. I haven't seen any of these promises ever pan out. If you agree to delayed payment based on the success of a project, you may as well resign yourself to not getting a dime.

There's often the promise of getting good public exposure. I get that once in a while in an attempt to entice me into spending a lot of time on something for zero gain. Well that only works if the material gets exceptionally good public exposure, and it probably won't. Even then, who will know that you shot it? Is anyone going to care? If it's a music video your name is not going to be in the credits because there are no credits. And as far as the general public is concerned, you're invisible.

When people ask me to do these things for free, and it's not for a charitable cause, I'm inclined to ask them when are they available to help me paint my house. After all, painting my house will get them good exposure (to the sun) and could lead to additional work (painting my neighbor's house).
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Old June 18th, 2008, 04:05 PM   #10
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I do mainly theatre/music live recordings that get sold as merchandise. The nature of the jobs are very often on the spot decisions. The kit is in the venue, the visiting artistes see it and we agree a verbal arrangement where the deal is a joint ownership of the material. They don't pay for the tapes, so the captured material is mine. However, we jointly, 50/50 control what happens to it. If I make a profit from it, then I pay 50% of this to the artiste. If as happened recently, they had 1000 duplicated elsewhere, then I get 50% of the profits from selling them. Obviously, this is full of legal loopholes and is no doubt quite laughable from the legal perspective. It does, however seem to work. The artiste has the edited DVDs, but not the source material. Copyright is a problem, but they promise to deal with that (I realise that this too is legally difficult, but it seems to work.)

Many times I never see them again, after delivering the first batch of DVDs, but I do keep an eye on their web sites to see if they are still selling them.

From time to time, they ask for specific material from the tapes, we agree a price based on how long it takes to produce what they need, and then if it's something designed to make a profit, then the 50/50 deal still applies, but if it's just promotion, I don't bother. We chat about all this each time we do a show, and it seems to work. No doubt I have been ripped off a few times, but I can live with that.
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Old June 18th, 2008, 06:41 PM   #11
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Quote:
Originally Posted by Dylan Couper View Post
Super simplifying this, and a big generalization:

If they hired you to shoot the footage for them, they own the tapes/footage.

If you shot the footage on your own (for any other motivation), you own the tapes/footage.

....:)
That's not entirely true. If they hired you as an employee such as, for instance, a camera operator at a TV station and are paid a wage or salary, had taxes withheld, etc, it is a work for hire and they own the rights. If you are a contractor and both you and they signed a written contract explicitly stating that the resulting video is created as a "work for hire" they own they rights. BUT, if you are a contractor and they hire you to make a video for them, you having creative control of the product, YOU, not they, own the rights. The creator of a copyrightable automatically owns the copyright and if you made the video, you are the creator. What your client gets for the money he gives you is a license to use your property unless you transfer the ownership in writing.
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Old June 18th, 2008, 06:49 PM   #12
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Originally Posted by Ken Beals View Post
A good portion is taping the making of a CD at the recording studio. Most if not all the songs recorded are cover songs.

There are some interiews, reaction shots and some B-roll. Am not sure who the "film maker" is who may need the footage for the documentary.

There were no release forms signed. One of the Musicians since has passed away.

Would it make sense to import the footage on external hard drive(s) that they provide and keep the original tapes in my possession and leave it up to the documentary Producer(s) to acquire the releases etc. ?

What if the Producer(s) have a budget ? ... a lot of personal time, effort and expense went into getting the footage.

Just want to do what's right and fair as I know the Artist does to.

thoughts ?
It doesn't really matter if you keep the originals and give them a copy or vice versa, nor does it matter if it's on a hard drive or whatever - those are only containers to hold the actual property. The property is the intellectual property carried in the container.

If the songs are cover songs or not is also irrelevant. You as the producer of the video are responsible for obtaining the necessary sync licenses from the copyright owners. Unless they also wrote and published the music so they own the copyright, your performers cannot grant any licenses to use the music. Also note that performance licenses and/or the mandatory recording licenses for cover songs DO NOT include rights to use the music in film or video. That's a completely separate license which must come from the copyright owners of the words and music.

You really REALLY need to talk to an entertainment law specialist ASAP on this - anything you get on internet forums can only be general guidlines and you MUST have an expert evaluate your exact situation.
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Old June 29th, 2008, 11:25 AM   #13
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Unless you sign it away you own the copyright.
If you have signed it away you own it until they pay you.

Because you own it doesn't mean that you can broadcast the contents.

If production provide the tapes they own the tapes you own the images.

They can't use the tapes without paying you.



I once had a PM "take" tapes from a shoot and held the company over a barrel (inflated expenses bill she wanted paid) while our deadline approached.
I paid for the tapes the crew the helishoot in Hong Kong(!).
I learnt a lot that week, namely hang onto the tapes!

In respect to who has legal rights to hold the tapes this is interesting.
In the above case, the question the police asked was did she have a right as part of her job to be in possession of the tapes.
Her mistake was that she redirected a courier who picked up the tapes from me, to go to her private address instead of the edit. This was the "questionable" bit. Had she walked into the edit and offered to walk the tapes back to her office it wouldn't have been under consideration as a criminal offence.





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Old June 29th, 2008, 05:20 PM   #14
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I did make a pretty sweeping generalization, there are always many interpretations. :)

As Bryan points out though, if you are hired as DP on a shoot, you aren't entitled to ownership of the footage. The same applies to most creative content anywhere in the world. If you write code for Microsoft, Microsoft owns it. If you design a cold fusion generator while you work at Enron, Enron owns it. If you are hired as a videographer to shoot an event video, ownership of the work defers to the producer/employer.

Pro photographers only retain the rights to their work because they spell it out in a contract, otherwise, the law would tend to favour the side of the client who paid for the work. For most magazines that hire staff photographers, the photographers retain none of the rights to their work. They are employees paid to create content for the employer. Freelance photographers of course retain all rights to their work, as they create it independently... until they sell a specific set of rights to someone.

However, we do both agree that this isn't the case in Ken's situation, as it seems he went and shot freelance, Ken likely owns the footage. Of course, we're only hearing his side of the story.

Ken... go call that lawyer! :)
You are in error here. Microsoft owns the code because you are an employee working within the scope of your regular employment by Microsoft. Same for designing the cold-fusion device for Enron, you are acting within the scope of your regular employment duties. But videographers, photographers, and other creative professionals who are contracted to a client on a non-exclusive basis and paid to produce certain materials for him are NOT employees of the client - the simple fact of being paid to perform a professional service does not make one an employee. Now if the relationship is on-going and exclusive, with the "client" paying a wage in contrast to a professional fee, withholding taxes, directing the performance of the work, etc, it is another story. But an independent contractor engaged to produce a certain work is not an employee. He is a vendor selling a service and the client is his customer. It is like the relationship between you and your doctor or lawyer or the plumber who comes to your house to fix your pipes. The fact that you pay them for their services does not make them your employee, even for during the moments in which they are actively providing the service. Absent a regular employer/employee relationship where the creative person would be acting under the supervision of the employer within the scope of their normal, on-going duties as an employee, a work-for-hire relationship only exists if the contract between the producer and the client spells out in writing that it is so. If it's not specifcally defined in writing to be a work-for-hire, the 'author of the work,' not the client, owns the rights and what the client is paying for is a license to use the work.
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Old June 29th, 2008, 06:08 PM   #15
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You are in error here. Microsoft owns the code because you are an employee working within the scope of your regular employment by Microsoft. Same for designing the cold-fusion device for Enron, you are acting within the scope of your regular employment duties. But videographers, photographers, and other creative professionals who are contracted to a client on a non-exclusive basis and paid to produce certain materials for him are NOT employees of the client - the simple fact of being paid to perform a professional service does not make one an employee. Now if the relationship is on-going and exclusive, with the "client" paying a wage in contrast to a professional fee, withholding taxes, directing the performance of the work, etc, it is another story. But an independent contractor engaged to produce a certain work is not an employee. He is a vendor selling a service and the client is his customer. It is like the relationship between you and your doctor or lawyer or the plumber who comes to your house to fix your pipes. The fact that you pay them for their services does not make them your employee, even for during the moments in which they are actively providing the service. Absent a regular employer/employee relationship where the creative person would be acting under the supervision of the employer within the scope of their normal, on-going duties as an employee, a work-for-hire relationship only exists if the contract between the producer and the client spells out in writing that it is so. If it's not specifcally defined in writing to be a work-for-hire, the 'author of the work,' not the client, owns the rights and what the client is paying for is a license to use the work.
Two people on the internet with different opinions...? Wow!

You are entitled to your interpretation of the rules, and in some cases I agree with you. On the other hand, I believe that for many people, your interpretation does not apply, as the video/film world is a very diverse industry and there are many different roles we are trying to shoehorn into one giant generalization... and we can't.

So... we've both got better things to do than argue about this over the internet, so let's just agree that:
a) always draft a contract if you intend to keep copyright on the footage
and...
b) if in doubt... get a lawyer.
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