If I produce a video, should the production company be able to show it? - Page 2 at DVinfo.net

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


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Old December 18th, 2010, 12:35 PM   #16
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Steve, this is where things definitely get muddy at least for me. From what I can gather, "employee" for copyright law refers to the "general common law" definition. I've read through the Copyright Law definitions and cannot fine anything specifically defining Employee. That's something I need to research further (I know it's crazy but this is actually somewhat interesting to me). One thing is clear, getting it in writing seems to be the best thing no matter what.

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Old December 19th, 2010, 04:24 AM   #17
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Steve, this is where things definitely get muddy at least for me. From what I can gather, "employee" for copyright law refers to the "general common law" definition. I've read through the Copyright Law definitions and cannot fine anything specifically defining Employee. That's something I need to research further (I know it's crazy but this is actually somewhat interesting to me). One thing is clear, getting it in writing seems to be the best thing no matter what.

-Garrett
Absolutely right on about that, getting it in writing. The IRS (and here in The Great White North, the CRA) have about 20 points they use when determining if someone is an employee or an independent contractor and I understand the same criteria have been generally applied to determine is someone is an employee for purposes of copyright ownership as well.

Here's a link to the CRA's guidelines ... RC4110 - Employee or Self-employed?
and some IRS guidelines ... Independent Contractor (Self-Employed) or Employee?

Both raise the issue of control, and I think creative control is a crucial factor in the instant discussion. A camera operator shoots what he's told to shoot by the producer or director, framed the way he's told to frame it, and rolling camera when he is told to roll. He contributes to the technical quality of the shot but he does not control the intellectual content of the shot. He is not an author and has no copyrightable interest. A videographer covering an event on the behalf of a client, OTOH, decides what to shoot and when and how to shoot it and how the various shots are finally assembled into the completed video. He's not a technician merely operating a piece of equipment under someone else's direction - in addition to pushing the buttons on the physical device, he is responsible for the intellectual content of the shot and that of the final work into which the shots are incorporated. He is the author of the final work and as such owns copyright absent a writing that transfers it to the client.
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Old December 19th, 2010, 05:01 AM   #18
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That's the best comment I've seen. In fact, if you use the movie industry, which is now older than the copyright protection age protection - the precedence has been set.

The camera operator exposes the image, the DoP composes the individual shots, the director collects parts of the whole, the editor stiches the product together, and the producer pays for it. Copyright usually belongs to the company who made it al happen and signed the cheques. All the others are effectively working for these companies - and as in almost every employment contract nowadays, anything you create in the course of your employment belongs to the employer. Proper employee or self-employed contractor makes no dfference. You were engaged to fulfil a specific purpose. They pay you, you move on.

Much of my work involves shooting material and then passing it on to others. I rarely get to keep anything, and even if I did, I couldn't do anthing with it - it's not mine!

If you specifically negotiate a contract that does allow you to retain the copyright - that's fine. It's just uncommon, and something not automatic in any way.
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Old December 19th, 2010, 10:02 AM   #19
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That's the best comment I've seen. In fact, if you use the movie industry, which is now older than the copyright protection age protection - the precedence has been set.

The camera operator exposes the image, the DoP composes the individual shots, the director collects parts of the whole, the editor stiches the product together, and the producer pays for it. Copyright usually belongs to the company who made it al happen and signed the cheques. All the others are effectively working for these companies - and as in almost every employment contract nowadays, anything you create in the course of your employment belongs to the employer. Proper employee or self-employed contractor makes no dfference. You were engaged to fulfil a specific purpose. They pay you, you move on.

Much of my work involves shooting material and then passing it on to others. I rarely get to keep anything, and even if I did, I couldn't do anthing with it - it's not mine!

If you specifically negotiate a contract that does allow you to retain the copyright - that's fine. It's just uncommon, and something not automatic in any way.
The below the line crew on a film set is often paid through a payroll service that becomes their nominal employer for the duration of the project. They report their time to the payroll service, the payroll service processes the time sheets and in turn bills the production company for it and withholds taxes, etc, when the pass it on to the crewmember. As employees they have no copyright interest. The above the line creatives such as the director, DoP, music composer, etc all have contracts that state their work is a work-for-hire so that their copyright interest falls back onto the production company as well.

There is a difference between owning the copyright and being able to exercise that copyright and distribute the material. If you have shot for a client your production may contain proprietary information that needs the client's permission to make public. It would likely be interpreted that the client has purchased an exclusive license to use the material he commissioned you to shoot so you can't resell it to a third party or incorporate segments of it into another production you're working on for another client. Of course you are going to need releases from anyone appearing in the film and any recognizable private locations you shot in before you could distribute it. All these things go into consideration of what you can or can't do with the material you shot. But ownership of the copyright also gives you leverage in terms of what the CLIENT can or can't do with that same material. They can't take something that was shot for broadcast in a local market and run it nationally, for example, thereby cutting you out of the much higher fee you would normally charge to produce a national spot. They can't repurpose your material, taking footage shot for an employee training film and using it in a commercial or selling segments of it as stock footage in competition with your own stock footage business. There is even a difference in owning the physical materials that store the intellectual property and owning the intellectual property itself. If the client purchased the videotape you shot on, he owns the tape itself but as the author of the program, the person who fixed the content into tangible form, you own the content carried on the tape.

You're saying you don't have copyright unless if you "specifically negotate a contract that allows you to retain the copyright." It's actually the other way around. AFAIK the copyright statutes in virtually every country that is signatory to the various international copyright conventions state that the copyright to any copyrightable work automatically falls to the author of that work, the person fixing it into its final tangible form, unless there is a writing that conveys it to someone else. That 'someone else' includes the client who pays to have the work created. There are some exceptions to the general rule, of course. For instance here in Canada the law explicitly states that when a painter or a still photographer is commissioned to make a portrait, the copyright to the resulting image belongs to the person commissioning the work. Works for hire, where the work is created by someone's employee, are an exception since the employer is the author of record in that case. But a producer in business for himseslf to make videos, who is commissioned and paid to make a video on the behalf of a client, is NOT the client's employee. If you produce finished videos, as contrasted to just shooting images and turning over the raw footage to someone else who actually makes the program, why are you so eager to give away your inventory, the only thing of monetary value that your efforts as a videographer actually create?
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Old January 14th, 2011, 01:42 PM   #20
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The claim was made in one post that the guy who pushes the button on the camera always owns the copyright to the footage shot.
well, not exactly what i said Steve,
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Whatever weaver says, but if you don't have one - the person who pushes button 'REC' is the creator and all the copyrights holder;
.
maybe we'reading different documents:)
Canadian Copyright Act, paragraph 13
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Old January 15th, 2011, 07:53 AM   #21
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well, not exactly what i said Steve,

maybe we'reading different documents:)
Canadian Copyright Act, paragraph 13
We are reading the same document. Section 13, Ownership of Copyright, makes no specific mention of cinematic or video works at all. It says in subparagraph 1 "Subject to this Act, the author of a work shall be the first owner of the copyright therein." A camera operator is not the author - he is non-creative "hired help," performing a purely mechanical action under the command of the director or DP. As the person who directs to camera operator where to point the lens, what he is to focus on, and when he is to roll the camera, not to mention perhaps what takes place in front of the camera, it is the director and/or DP that has created the intellectual content of the image - the camera operator has not made any contribution except to assemble the physical vehicle that carries the content. It is the film's director that is the author of the film itself. It would only be in the situation where the camera operator is also the director and DP, he is a filmmaker or videographer instead of a hired camera operator, that he would have copyright. But in that case it is his role as the creator of the content of the image, NOT his function as the physical operator of the piece of equipment that captured the image, that gives him his copyright. Your argument is tantamount to claiming the technican that operates a disk-pressing machine in a CD factory has a copyright interest in the music impressed on the disk.

Further, subparagraph 2 says "Where, in the case of an engraving, photograph or portrait, the plate or other original was ordered by some other person and was made for valuable consideration, and the consideration was paid, in pursuance of that order, in the absence of any agreement to the contrary, the person by whom the plate or other original was ordered shall be the first owner of the copyright." If you want to argue that a film or video image falls under the definition of "photograph," under that provision the person who hires the camera operator own the copyright to the images that are produced. (I would suggest that a film or video is materially different from a photograph and this provision would not apply but that's just my opinion and I'm not a lawyer.)

If I am XYZ Corporation and I contract with you, Joe Videographer, to make a video training people how to wax widgets, you would own the copyright as the author of the video unless our contract stated something different. But if I'm Steve Videographer who has been contracted by XYZ Corp to make that video, and I hire Ms Puller to pull focus on my camera, I own the copyright to the footage and she doesn't have any claim to it. Similarly if I hire you, Joe Camop, to run camera 2 in a multicam setup, I own the copyright to that footage and you have no copyright interest in it, for the same reason my focus-puller doesn't have partial ownership of the footage coming from my camera. Or if I hire you to roam indpendently through the event and shoot B-roll, even though I'm not looking through your viewfinder to actually set up the shots, you are still working under my direction because as author of the film I know what footage I'll need and so I've told you what to shoot. Like the function of the focus-puller, gaffer, or location mixer, the function of the camera operator is important to the final work, but it's not authorship.
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