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Old January 27th, 2010, 08:32 AM   #1
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Who owns the Footage? The person that pushes record?

Basic question, but one that arisen....

Who owns the footage, assuming no contracts were signed before the event?

-The person funding the project/hired the cameraman?

-The person who owns the camera?

-The person who pushes record?

-The person who moves the camera and captures the image?

-other
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Old January 27th, 2010, 08:46 AM   #2
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Our new company has been struggling with this exact question. Here's my experience with it...

At a past company where I worked for 7.5 years they were only asked to give our footage to the customer 2 times.

1) The first time they told the customer no, and the customer got very upset. They ended up negotiating a significant fee for giving them the footage and the customer seemed to be okay with it.

2) The second time, with a different customer, again they told the customer no. This time the customer got so upset that they said they would never do business with them again.

With all that in mind, here's my opinion.... In my experience, clients don't ask for the footage very often. As a result, in the future (with my new company) we are going to give the client the footage if they request it. We probably will charge them a fee to transfer it into a format that they can utilize though.

Just my $0.02 with this. Your results may vary. (this is for a smaller market - not Hollywood)

BTW, in the still photo industry, they normally charge an hourly fee for doing the shoot, and then never release the photos to the customer. This is because they make the majority of their money selling prints to the customer.
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Old January 27th, 2010, 08:46 AM   #3
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This is why you need to establish this before the shoot. Most times this is very easy. It does not have to be a huge legal doc.

If nothing has been decided upon, then whoever has the media has the upper hand.

I have a lot of different ways of offering my shooting and/or editing services. To many to realistically list here. But the most basic is.

If you pay me to shoot. Then we jointly own the footage.

Me as part of my library to use however I please.

The client for a one time use for specified project.

Or if they pay me for shooting stock for future use, we agree on a period usually forever, for them to have the use of the footage. But the client can never resell the footage w/o my consent.
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Old January 27th, 2010, 08:58 AM   #4
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Does anyone have an example of a contract or other document they would care to share that says basically you can look at my footage, and i'll put some on a hard drive and let you edit something to your liking, but you don't own the footage and you can't use it for any other purpose but for this single project.

Thanks
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Old January 27th, 2010, 09:06 AM   #5
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i like that Olof posession is 8/10ths of the law

who ever pays the most :-) Which doesnt mean just the cash.

if you didnt determine that before you shot, think of the position you could be in, hire a Sub-Contractor who has ALL thier own equiptment, and if the standard copyright laws apply, he who holds the camera, pushed the button , has the footage now owns you.
If you want to agree that they will do all the shooting, and provide you with all thier masters, then you should have pointed that out.

if your owning the equiptment and shooting all the footage makes you the owner of said footage, when your hired as the original contract, how so is the sub-contract different without specification?

If the people your shooting provide all the sets, and stage and "actors" and music and specs and charts and graphs , and does the speeches, and the work while you capture that performance with your camera, even if you own the footage and copy right to that footage, THEY still own all the work that they did. You Must get them to sign off , if you want to own what is on the footage too (so to speak).
So without some agreement from the things in front of the camera, the things in front of the camera still have some rights, even if the things behind the camera have rights too.

If someone is withholding , it will be up to the complexities of the law with added opinion on who is deserving , and at what costs. when you add in opinion that will exist with all applications of the law, some of it will still go back to Who Is Paying Most :-) What are the losses, is there an unreasonable demand, is there more to things than who pushed the button. and of course there always is :-(

want to see a photograper give up thier negatives? Offer them enough money for them.
want to see a video person give up thier masters? offer them enough money for them.
Have a customer who wants all the footage, charge them for a copy, or have it written that that will never happen Ever, or at least them understanding that is NOT an option.
Have a Customer who wants your master camera product, then have arraged for that and gotten paid for that before doing thier work.
Have waited till after the shot before defining those parameters . . . :-( charge them money for your work at least, then define the contract next time.
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Last edited by Marty Welk; January 27th, 2010 at 11:28 AM.
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Old January 27th, 2010, 09:48 AM   #6
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Contract - Agreement between 2 or more peoples or groups.
I once read that without the agreement part a contract can be argued that it is not valid, even written and signed. Because a contract is an agreement between 2 people, without the agreement by definition there is no contract.

I always thought this was interesting, for all the people who signed on the dotted line, for something that was a total SCREW JOB that was meticulously ingrained in the contract with a bunch of Lawyerspeak trash used only as an entrapment.


if the customer has an understanding , which they could easily deny later , that is the contract , the need for it to be on paper is for enforcement and to define what they agreed on. but it could still be potentially argued in law that there was no contract without agreement :-) so depending on the court, and a good argument a customer who didnt know Squat about what they signed, really has no contract.
Reverse that
And in some courts with some judges there is no agreement and no contract without a written document it is not enforcable by law. More than that they just think the person is so stupid that they didnt have one, they deserve to lose the case.
Without a written document in those situations, add in a confused or lying customer, you will basically lose.

If the customer has a full complete understanding of the agreement, that is still a contract, when you get into court over such sillyness , the paper that defines the agreement, AND the comprehention of the parties about the agreement will set the contract as enforcable by law.

so first you have the agreement, IF you have that, 50% of the misunderstanding is gone.
Then you have the customer comprehention of the agreement and the other 30% of the misunderstanding is gone
Then you have the written word and the last 20% of any misunderstanding is gone. and you have some form of protection should you need to play overpriced law games.

My contract is my word, thier contract is a complete understanding, my piece of paper defines stuff minimally so i get PAID, and that is about all. if they want to screw with me , they can have what they want ONE TIME, then i will never lift a finger for them ever again !

Displaimer:
I am not a lawyer nor do i play one on tv.
anything you can do to increase the understanding, define it in paperwork, and reduce the tention and the noise and the problems is worth more than any lawsuit, lawyer, problems, stress, or the money that it costs you and your country.
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Old January 27th, 2010, 11:09 AM   #7
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Traditionally in the video business the rights to the raw footage was owned by the production company while the crew who shot it was working as work for hire. The client of the production company might also have rights to a copy of the raw footage as part of the contract for the production although many did not spell this out. This came from companies like CBS who would hire the crews as employees so CBS had rights to the footage and legal protection for the crews. This was unlike a still photographer who retained the rights to the photographs. Many companies are trying to move still photography into the work for hire realm as well.
Non disclosure agreements may cloudy the water even more as you might be violating confidentiality by using footage shot for one project someplace else. Also just because you have the footage doesn't mean you have the rights to distribute it without releases. An example where you have to have clearances is a commercial concert.
Also things which were made as news later become incorporated in documentaries and the releases have to be dealt with as the use of the material has changed.
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Old January 27th, 2010, 11:40 AM   #8
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This is really a big subject, or a bunch of subjects.

We generally don't do any shooting without a downpayment, depending on the job and the client, it may 33% 50% or even 100%. Longer projects can be a lot less or even a daily fee.

We always have release forms with us, we have a simple short version and we have a very complex Getty Images form, including location releases. We always try to get everything released as we are shooting.

With the downpayment we usually have a signed agreement (many different types). This way everything is clear.

When the project is done we get the last payment and we give the client copies of the releases at this time.

Sometimes I work with producers who take care of all that. I just shoot, and get a day rate. I may or may not own or keep a copy of the footage on those jobs. But it is all ironed out before the shoot.

Sometimes I just show up to shoot and the company supplies all the gear. In those cases I am just payed by the day and own nothing.

This is just a summary. Life is dynamic and your business has to be as well.

Oh yeah sometimes I make things like camera plates and shoulder braces etc. I sell those and the client owns them completely. Not only that but they are guaranteed.
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Old January 27th, 2010, 01:58 PM   #9
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This is in actuality a huge question. I'm not a lawyer but I have to deal with lot of legal issues as my regular job (hopefully not for long) as a civil engineer. Dealing with contractors, specifications, politicians and lawyers on a daily basis gives me a very cautious view of how our legal system is actually based on some form of common sense.

The person who owns the camera, pushes the record button, moves the camera, or even the person or group funding the project has no claim to the copyright unless explicitly assigned to them in one of two ways. Either because this was work done for hire, which most people misinterpret, or those copyrights are explicitly transfered. Just because you are hired by someone to do a job does not mean it is work done for hire. There are actually only 9 categories of works that can be defined as a work made for hire.

Most people miss this fact but it was pointed out to a creative art director I know who started her own company. When she started her own company and wanted to use some of her past work as examples on her website, she received a cease and desist order from her former company. She thought she was ok because she had gotten approval from the company who's advertisement it was made for. That company had written into their contract that the ad piece was made as "work for hire" and thought that they then owned the copyright. But, after several IP lawyers reviewed the material, the conclusion was that it did not fall under one of the nine categories and therefore copyright could not be transferred under the work made for hire provisions of the 1976 copyright act. The company that hired the ad agency did not in fact own the copyright, as they thought, but only had rights to use the material for purposes of promoting their product. They could not transfer rights to another person or entity. Ironically, her work, which she primarily authored for the ad campaigns, became the intellectual property of her former company under the Work Made For Hire provision of the law which explicitly covers employee/employer relationships.

So, it really doesn't matter who pushed the record button, or who moves the camera, or even who funds the project. If you are using the term "footage" as in who owns the rights to the subject matter captured, it first belongs to the author.

The best thing to do is to go to this site and read through EVERYTHING (yes bolded intentionally):

U.S. Copyright Office

That is where you will find all the information you would need in both somewhat plain English as well as the actual law (which for most people is almost another language).

Then, consult an intellectual property lawyer for clarification if needed.

-Garrett
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Old January 27th, 2010, 02:25 PM   #10
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Originally posted to Sony XDCAM EX. I have no idea why it went to a camera forum. Moved here where it belongs.
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Old January 27th, 2010, 02:38 PM   #11
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http://www.copyright.gov/circs/circ09.pdf

""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).""

so even within "employment" and you creating a work under thier employment, if the "contract" between the parties exists , then the definition is understood, if it is "your" work still or "thier" work they paid for.

The "employer" in that case lost the lawsuit probably because the employment itself was (probably) not very well defined, and the person was more akin to a active Sub-contractor , with thier own stuff, own workplace , own equiptment, loose schedule, and therein most of the money put into it :-) The employer lax in not having defined the parmeters, and putting it in writing.

The employer becomes very defined, if your working year round, its all thier stuff, they told you want to do, and you can just about guarentee that you not only understood but SIGNED that they own everything you do and are. because all these corporations (for example) you would work for, you sign your whole life away before go to work for them.

Under the definitions in the copyright text, a sub working with thier own equiptment shooting YOUR project, could screw you completely, unless you define the agreement, which smartly would be written on paper.

Take also the case of the Website, you PAY to have created for you, I guess your work-at-home WebDesigner would own it still, by those definitions, unless you (again) define it in the paperwork. It Would be funny to have your webdesigner charging you doubble because you expanded the design by a few pages, or they just sell it to whomever came along :-)
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Last edited by Marty Welk; January 27th, 2010 at 06:49 PM.
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Old January 27th, 2010, 03:19 PM   #12
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. . . ""if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.""

and that is what i have agreed to at times, along with disclosure agreements to do some jobs for some articulated :-) companies.
I sign my life away, because they dont want anyone having any aspect of control , display, demo, distribution, royaltees, surprise fees , or anything, I work for them, they own it all, and luckily they also pay well to have it all. and they pay for anything they expect to get, like copies re-editing, re-shooting.

It is all my equiptment used to make the video itself, my equiptment used to edit the video, my equiptment to copy the video, my self who made the video. I am not Thier Employee Ever. But without them having the thing to video, and me not having rights to what "WE" all put on the video, it doesnt make much difference, i cant distribute OUR video without them anyways.

With ammendments and contraversy over the "work For Hire" classification , if someone wanted to "keep all the rights" they mabey should avoid using the Words "work for hire", and just write a contract that speaks plain english as to who will own what. Applying the wordification "work for hire" in a document could just up and backfire on the payee, wheras a Full contract defining the full agreement not using those words, cant be Piddled with in court for 20 years on end because somone wants to renig on having given up thier rights.
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Last edited by Marty Welk; January 27th, 2010 at 05:47 PM.
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Old January 27th, 2010, 07:01 PM   #13
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There is so misinformation already in this thread so I would suggest two courses of action:
-First, use the Google search tool at the bottom of this page to look for a very similar and recent thread that contains a WEALTH of information (and a ton of speculation...) on exactly this topic;
-Secondly, don't base decisions affecting your business on what you read on an internet forum. As good as this one is, it can't answer EVERY question perfectly accurately for YOUR situation.

I have always said if you want to take your business seriously, you should have an accountant AND a lawyer BEFORE you have your first camera...
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Old January 27th, 2010, 07:06 PM   #14
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Quote:
Originally Posted by Mitchell Lewis View Post
BTW, in the still photo industry, they normally charge an hourly fee for doing the shoot, and then never release the photos to the customer. This is because they make the majority of their money selling prints to the customer.
I assume you mean negatives/camera raw media/files.

AND because in many cases photographers want to protect the perception of quality of their work. Imagine how damaged a photographer's rep would be if someone scanned their images poorly and then printed them out on an inkjet printer and handed them out. The recipients would ask "who shot these?" without realizing the originals were BEAUTIFUL.

A complicated issue I am only TOO familiar with based on a recent experience...
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Old January 27th, 2010, 07:22 PM   #15
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Quote:
Originally Posted by Shaun Roemich View Post
-Secondly, don't base decisions affecting your business on what you read on an internet forum. As good as this one is, it can't answer EVERY question perfectly accurately for YOUR situation....
I completely agree which is why I said to consult an attorney.


Quote:
Originally Posted by Marty Welk View Post
. . . ""if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.""
This is only one part of the requirements in order for it to be considered a Work for Hire. If the work does not fall into one of the 9 categories it may not be a candidate to be labeled work for hire. Here's a link to some further info:

Work For Hire

Quote:
Originally Posted by Marty Welk View Post
Applying the wordification "work for hire" in a document could just up and backfire on the payee...
This is exactly what happened to my friend (more to the clients). Since this section of the statute was used, or attempted to be used, to transfer copyright, it was determined that it was not the correct instrument to use. The words backfired on them and it was determined that no copyrights were therefore transferred. The owner of the ad agency is very screwed and I'm sure they understood what was going on and was the reason he didn't care that the words were put into their contract. In other contracts no mention is made of transferring any copyrights.

Unfortunately I've been on the end of the words biting me too. Like I said, I have to work with a lot of specifications in construction contracts which are legal documents. They become part of the contract for the work being done. It amazes me how smart contractors can be.

Sometimes they can be as slippery (or slimy if want) as lawyers. Sorry if I offended any contractors or lawyers. :)

Again, I'm not a lawyer so if you have any questions consult one.

-Garrett

Last edited by Garrett Low; January 27th, 2010 at 07:24 PM. Reason: hit submit to quickly.
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