Who owns the audio ?

Brian Drysdale · March 23rd, 2009, 03:13 PM

If I'm hired by a company as a freelance cameraman, I do not expect to hold any copyright in the material I shoot. The industry uses a lot of freelance people and it isn't practical for everyone to hold copyright on material they shoot for other people. Although, if they are break the terms of such an agreement (ie I wasn't hired as such) I could use copyright as a means to apply pressure to obtain payment if required - although this seems to apply to the camera operator, not the DP if they aren't operating. This is different to stills photography, but the nature of how material is used is very different in that medium, a photograph is a stand alone "work", not a part of a larger whole which is the "work".

It's pretty common for you not to sign a contract on every job, usually it tends to be on dramas that you sign a contract. If you freelance for a major broadcaster such as the BBC in even accepting the work you need to agree that they hold any copyright. This used to informal, now it's a more formal arrangement.

This is different to you making a film or a company producing the film or video or shooting material for yourself.

But if a company or a producer hires a freelance sound recordist for a production they wouldn't expect the recordist to hold the copyright to the material and in paying them to perform that role they expect to be buying out any such rights. That's different to the recordist recording material as part of their own business, eg for their sound effects library and then production company paying for use of that material.

In practise, even directors hold very few rights. Although, this is written into their contract or letter of engagement because their creative relationship to the production is much more complex and can involve scripting etc..

Copyright is a complex matter and you should check with a lawyer if you have a particular issue.

Steve House · March 23rd, 2009, 03:24 PM

Freelancers and independent contractors are generally not employees of their clients and the simple fact that they are being paid does not in itself make them so. As I understand it, unless you're a regular full, part-time, or temporary employee acting within the normal scope of your employment duties or otherwise fall into one of the categories defined as work-for-hire in the copyright statues, for your work to be considered to have been created as a 'work-for-hire' you must have a written agreement and your contract must explicitly state that the resulting work will be created for the client as a 'work-for-hire' using those specific words. Absent that exact wording, the creator of the work owns the copyright. But in the case of a sound person, such as the question posed by the OP, the "creator of the work" would probably NOT be the sound recordist most of the time. The producer and director are directing his work, telling him what to record and how to record it and directing the performance of the talent. That makes them the creators and the recordist is serving as a technician acting under their direction. He does not have any direct creative control. It's much the same as a cameraman - the DP is the creator of the shot, not the camera operator or focus puller. So it's not an issue with below-the-line crew because they do not exercise direct creative control. And the above-the-line creatives such as the director or the composer of the score typically have contracts that make their work a work-for-hire so the production company owns the copyright to it.

Brian Drysdale · March 23rd, 2009, 03:59 PM

Quote:

Originally Posted by Steve House

He does not have any direct creative control. It's much the same as a cameraman - the DP is the creator of the shot, not the camera operator or focus puller. So it's not an issue with below-the-line crew because they do not exercise direct creative control.

Rather interestingly it seems that the operator holds copyright not the DP because the copyright is in the framing rather than the lighting. The DP being the creator of the shot framing would depend on the on set working relationships and some DPs can be pretty hands off.

In practise, a freelance DP won't be making copyright claims unless something goes wrong. I suspect the actual laws may vary in detail from country to country, although there is now a tendency to have a written contract or one of those by accepting this work you will be working under our terms of employment agreements, even if you haven't signed anything.

Jim Andrada · March 23rd, 2009, 09:04 PM

This was referenced on anther thread some time back - worth reading the IRS's idea of who is or is not an employee in the film and video business.

http://www.mca-i.org/en/art/?9

Brian Drysdale · March 24th, 2009, 06:19 AM

Quote:

Originally Posted by Jim Andrada

This was referenced on anther thread some time back - worth reading the IRS's idea of who is or is not an employee in the film and video business.

IRS Guidelines - Film & Video Industry Contractors - 1-Feb-03: Media Communications article: contact Todd O'Neill

There can be variations between countries.

In the UK it can depend on the number of clients you have. For example in the UK, you may be freelance DP (or in the TV broadcaster's terms a camera person - a DP being someone who is head of dept. on dramas rather than a TV programme), but you only work for one or two clients, you could be PAYE (pay as you earn) as against the self employed Schedule D.

Steve House · March 24th, 2009, 04:49 PM

Quote:

Originally Posted by Brian Drysdale

There can be variations between countries.

In the UK it can depend on the number of clients you have. For example in the UK, you may be freelance DP (or in the TV broadcaster's terms a camera person - a DP being someone who is head of dept. on dramas rather than a TV programme), but you only work for one or two clients, you could be PAYE (pay as you earn) as against the self employed Schedule D.

Excellent point! While copyright law itself is reasonably consistent from country to country due to the Berne Convention, the definition of "employee" can vary extensively between jurisdictions and tax authorities. And even copyright itself can vary - for example, I was recently surprised to learn that here in Canada a portrait or wedding still photographer who is hired by someone to shoot a portrait or cover their wedding does NOT own the copyright to the resulting pictures but by law copyright belongs to the client. When I learned about copyright law in the States a number of years ago, the photographer would own the copyright as the creator of the photographs and the fact he was hired and paid by his client to make them doesn't change that. And to make it even more interesting, Canadian law explicitly addresses photographs made by still photographers but is silent on video shot by videographers.

Duane Burleson · March 25th, 2009, 03:49 AM

A couple of points:

-Work for hire must be a "prior written agreement". Meaning the work for hire contract must be signed before any work is performed.

-You hold copyright the moment the image or video is created BUT you have very little legal weight when a lawsuit is filed if the copyright is not registered with the Library of Congress Copyright Office. If you file a lawsuit and you have not registered the copyright the most you can win (generally) is the fair market value that you would have licensed the works for. In order to win statutory damages (where the real money comes from) and legal fees you must have registered the works. In fact, most IP attorneys will not take a case unless the works have been registered.

Duane

Brian Drysdale · March 25th, 2009, 04:52 AM

Quote:

Originally Posted by Duane Burleson

A couple of points:

-Work for hire must be a "prior written agreement". Meaning the work for hire contract must be signed before any work is performed.

-You hold copyright the moment the image or video is created BUT you have very little legal weight when a lawsuit is filed if the copyright is not registered with the Library of Congress Copyright Office. If you file a lawsuit and you have not registered the copyright the most you can win (generally) is the fair market value that you would have licensed the works for. In order to win statutory damages (where the real money comes from) and legal fees you must have registered the works. In fact, most IP attorneys will not take a case unless the works have been registered.

Duane

Again, this varies from country to country, best check the local legal situation and any procedures required. For example the UK has an Intellectual Properties Office, but it doesn't have a copyright office where you register. However, there are other organisations which will offer that as a service either to their members (eg Writers Guild or BECTU) or for a commercial fee for a set period.

http://www.ipo.gov.uk/c-basicfacts.pdf

Copyright - BECTU

Paul Tauger · April 10th, 2009, 06:32 PM

Quote:

Originally Posted by Chris Sweet

Just out of curiousity, if I'm recording the audio myself with my own gear, and for an independant producer, that probably isnt backed up by heaps of paperwork, are the files anybody's and 'royalty free' because I've not copyrighted them, or do I have any legal rights to these recordings since I've captured them?

If you are truly an independent contractor (and owning your own gear is only one indicia and not necessarily dispositive), absent a written agreement to the contrary, you own the rights in the audio (though not the underlying material). You do not have to register the copyright to accrue rights -- you have those as soon as it is fixed in a tangible medium, i.e. recorded. However, I would not assume that you are an independent contractor -- there are a number of other questions that would have to be answered first. If you are not an independent contractor, your employer would own copyright in the recording.

Steve House · April 11th, 2009, 05:29 AM

Quote:

Originally Posted by Mark Boyer

As a employee (Editor) of 2 nationally distributed magazines all work I am paid for (even if there is no written agreement) becomes the property of my employer. If I am sent ad art components and create an ad, once we are paid all parts of the ad art become the advertisers property. If you are not paid you retain all of the copyrights (even if it is not in writing)

IANAL Mark, while you may well be right in your specific case about your employer owning the copyright to your work, you aren't quite correct in your explanation of the reason behind it. It all hinges on whether you are an employee and the mere act of being paid for the work DOES NOT make you an employee. Freelancers and contractors usually are not employees. If you are paid a salary or wage, have taxes and SSI etc withheld, work specific hours as set by your employer, at a required location and with their tools and equipment, work under your employer's guidance, direction, and supervision, etc (a bunch more IRS guidelines) then you are an employee and copyright to your work belongs to your employer as a "work-for-hire." But a freelancer hired to create a peice of work who works under his own direction and initiative, with his own tools, on his own timeclock, etc is not an employee even though he is paid a professional fee upon delivery of the completed work. Your lawyer isn't your employee even though you're certainly paying him for his work, right? In the case of the freelancer/contractor, the work IS NOT a "work-for-hire" unless there is a written agreement that says it is, using the exact words "work-for-hire." And if it is not a work for hire, the copyright remains with the freelancer or contractor who created the work. Of course, he may transfer the copyright to his client and making that transfer might even be a requirement for his getting paid but once again, the transfer of copyright MUST be explicitly stated in writing for it to be effective.

Jim Andrada · April 11th, 2009, 12:29 PM

I would hope that Paul T might comment on this, but I think we're confusing the concepts of employment and "work for hire".

I believe they're different animals.

Example - when I joined IBM in the middle of the last century, software was not patentable. Hardware was. Engineers on joining the company were required to sign an exclusive assignment agreement stating that all patents they received were exclusively assigned to IBM.

Patents were (and are) issued in the name of the "inventor", but pursuant to the assignment agreement, all rights belong to IBM. I don't recall hearing the term "work for hire", but that's not to say it wan't used - it was after all the middle of the last century so I think I could be forgiven for forgetting.

By the way, my father was an engineer and held many of the basic patents on the mechanisms used for the self-unloading systems on the Great Lakes ore carriers - the rights to all of which were assigned to his employer, even though it was his name on the patents, copies of which I think I still have around here somewhere.

Richard Alvarez · April 11th, 2009, 12:56 PM

While Patents, Copyrights and Trademarks are all "Intellectual Properties" - there are differences in how they are handled, assigned and how long 'ownership' can last. So lets not confuse Patents or Trademark issues with Copyright ownership and transferrence.

Paul Tauger (An IP attorney we are fortunate enough to have joined in the disicussion upthread) has pointed out that

--------------

If you are truly an independent contractor (and owning your own gear is only one indicia and not necessarily dispositive), absent a written agreement to the contrary, you own the rights in the audio (though not the underlying material). You do not have to register the copyright to accrue rights -- you have those as soon as it is fixed in a tangible medium, i.e. recorded. However, I would not assume that you are an independent contractor -- there are a number of other questions that would have to be answered first. If you are not an independent contractor, your employer would own copyright in the recording.

Jim Andrada · April 11th, 2009, 03:20 PM

I agree that it would be nice if Paul could set us straight - but it was only an example. I still think employment and "work for hire" are different animals.

There may be intersections (hmm - intersecting animals - not sure this is a fit discussion for kids) but I for one would like to be clear on the basics.

March 23rd, 2009, 03:24 PM	#17
Steve House Inner Circle Join Date: Mar 2005 Location: Hamilton, Ontario, Canada Posts: 5,742	Freelancers and independent contractors are generally not employees of their clients and the simple fact that they are being paid does not in itself make them so. As I understand it, unless you're a regular full, part-time, or temporary employee acting within the normal scope of your employment duties or otherwise fall into one of the categories defined as work-for-hire in the copyright statues, for your work to be considered to have been created as a 'work-for-hire' you must have a written agreement and your contract must explicitly state that the resulting work will be created for the client as a 'work-for-hire' using those specific words. Absent that exact wording, the creator of the work owns the copyright. But in the case of a sound person, such as the question posed by the OP, the "creator of the work" would probably NOT be the sound recordist most of the time. The producer and director are directing his work, telling him what to record and how to record it and directing the performance of the talent. That makes them the creators and the recordist is serving as a technician acting under their direction. He does not have any direct creative control. It's much the same as a cameraman - the DP is the creator of the shot, not the camera operator or focus puller. So it's not an issue with below-the-line crew because they do not exercise direct creative control. And the above-the-line creatives such as the director or the composer of the score typically have contracts that make their work a work-for-hire so the production company owns the copyright to it. __________________ Good news, Cousins! This week's chocolate ration is 15 grams!

March 23rd, 2009, 09:04 PM	#19
Jim Andrada Inner Circle Join Date: Feb 2007 Location: Tucson AZ Posts: 2,211	Who is an employee This was referenced on anther thread some time back - worth reading the IRS's idea of who is or is not an employee in the film and video business. http://www.mca-i.org/en/art/?9

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March 23rd, 2009, 03:13 PM	#16
Brian Drysdale Inner Circle Join Date: Feb 2006 Location: Belfast, UK Posts: 6,143	If I'm hired by a company as a freelance cameraman, I do not expect to hold any copyright in the material I shoot. The industry uses a lot of freelance people and it isn't practical for everyone to hold copyright on material they shoot for other people. Although, if they are break the terms of such an agreement (ie I wasn't hired as such) I could use copyright as a means to apply pressure to obtain payment if required - although this seems to apply to the camera operator, not the DP if they aren't operating. This is different to stills photography, but the nature of how material is used is very different in that medium, a photograph is a stand alone "work", not a part of a larger whole which is the "work". It's pretty common for you not to sign a contract on every job, usually it tends to be on dramas that you sign a contract. If you freelance for a major broadcaster such as the BBC in even accepting the work you need to agree that they hold any copyright. This used to informal, now it's a more formal arrangement. This is different to you making a film or a company producing the film or video or shooting material for yourself. But if a company or a producer hires a freelance sound recordist for a production they wouldn't expect the recordist to hold the copyright to the material and in paying them to perform that role they expect to be buying out any such rights. That's different to the recordist recording material as part of their own business, eg for their sound effects library and then production company paying for use of that material. In practise, even directors hold very few rights. Although, this is written into their contract or letter of engagement because their creative relationship to the production is much more complex and can involve scripting etc.. Copyright is a complex matter and you should check with a lawyer if you have a particular issue.

March 25th, 2009, 03:49 AM	#22
Duane Burleson Regular Crew Join Date: May 2006 Location: Sterling Heights, Michigan Posts: 105	A couple of points: -Work for hire must be a "prior written agreement". Meaning the work for hire contract must be signed before any work is performed. -You hold copyright the moment the image or video is created BUT you have very little legal weight when a lawsuit is filed if the copyright is not registered with the Library of Congress Copyright Office. If you file a lawsuit and you have not registered the copyright the most you can win (generally) is the fair market value that you would have licensed the works for. In order to win statutory damages (where the real money comes from) and legal fees you must have registered the works. In fact, most IP attorneys will not take a case unless the works have been registered. Duane

April 11th, 2009, 12:29 PM	#26
Jim Andrada Inner Circle Join Date: Feb 2007 Location: Tucson AZ Posts: 2,211	I would hope that Paul T might comment on this, but I think we're confusing the concepts of employment and "work for hire". I believe they're different animals. Example - when I joined IBM in the middle of the last century, software was not patentable. Hardware was. Engineers on joining the company were required to sign an exclusive assignment agreement stating that all patents they received were exclusively assigned to IBM. Patents were (and are) issued in the name of the "inventor", but pursuant to the assignment agreement, all rights belong to IBM. I don't recall hearing the term "work for hire", but that's not to say it wan't used - it was after all the middle of the last century so I think I could be forgiven for forgetting. By the way, my father was an engineer and held many of the basic patents on the mechanisms used for the self-unloading systems on the Great Lakes ore carriers - the rights to all of which were assigned to his employer, even though it was his name on the patents, copies of which I think I still have around here somewhere.

April 11th, 2009, 12:56 PM	#27
Richard Alvarez Inner Circle Join Date: Sep 2002 Location: San Mateo, CA Posts: 3,840	While Patents, Copyrights and Trademarks are all "Intellectual Properties" - there are differences in how they are handled, assigned and how long 'ownership' can last. So lets not confuse Patents or Trademark issues with Copyright ownership and transferrence. Paul Tauger (An IP attorney we are fortunate enough to have joined in the disicussion upthread) has pointed out that -------------- If you are truly an independent contractor (and owning your own gear is only one indicia and not necessarily dispositive), absent a written agreement to the contrary, you own the rights in the audio (though not the underlying material). You do not have to register the copyright to accrue rights -- you have those as soon as it is fixed in a tangible medium, i.e. recorded. However, I would not assume that you are an independent contractor -- there are a number of other questions that would have to be answered first. If you are not an independent contractor, your employer would own copyright in the recording.

April 11th, 2009, 03:20 PM	#28
Jim Andrada Inner Circle Join Date: Feb 2007 Location: Tucson AZ Posts: 2,211	I agree that it would be nice if Paul could set us straight - but it was only an example. I still think employment and "work for hire" are different animals. There may be intersections (hmm - intersecting animals - not sure this is a fit discussion for kids) but I for one would like to be clear on the basics.