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


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Old January 30th, 2011, 04:17 PM   #1
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who gets the rights?

I'm in a dispute with my significant other about a future project. A local business wants to produce a trainging dvd for sale. In my mind I'm hired to produce the dvd and then I get paid for my services.

She says that I will be owner of the dvd and I could sell them as my own.

I know that either way could be done depending on the terms, but as standard practice does the production firm own copyrights?
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Old January 31st, 2011, 02:14 PM   #2
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I am not a lawyer. That being said ... Copyright normally goes to the author of the work. As the producer who creates the specific content on the video as a single copyrightable work, you are its author and thus you would own the copyright to it. Whether you can sell copies on your own, independent of your client, is whole different matter entirely, involving all sorts of considerations such as releases, non-disclosure of proprietary information contained in the video, etc. What your ownership of the copyright really means is that in return for your fee your client obtains a license to use the video for specific purposes, ie, training, and can't "repurpose" the footage on the DVD for something like promotional materials, advertising, or whatever, without your permission. He also can't legally take your one delivered DVD and duplicate it to distribute throughout the company unless you license the duplication, should you choose to make that a profit center for your production company (the same idea behind wedding photographers who make a profit selling multiple copies of the picture albums they shoot). Or if it's something of general public interest, he can't take it and duplicate it for sale. Of course, as a condition of your engagement contract he might insist on your tranferring copyright to him at the conclusion of the project and there's nothing to preclude you from doing that should that be an acceptable condition for you.. And if you refuse he in turn has every right to hire someone else to do the project. It's just that it starts out with you as the owner of the copyright and you need to formally transfer it to him in writing for him to get ownership. Either that, or your engagement agreement explicitly states you are producing a "Work for Hire", in which case your client becomes the author for copyright purposes and he owns the copyright flat out. But note that "Work for Hire" agreements MUST be in writing and must use those specifc terms ... his paying you to make the video doesn't in itself suffice to make it a work for hire.
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Old January 31st, 2011, 02:43 PM   #3
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Make it very clear and spell out in your agreement who owns the copyrights for the product. There are defaults under US Copyright Law it is best to spell them out on the instrument that both of you sign.

There have been numerous discussion on copyrights and ownership of material and the conclusion always seems to be, consult a lawyer if there is any doubt.

-Garrett
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Old January 31st, 2011, 09:39 PM   #4
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I have a thought:
Let's say you make the DVD and sell it. Have you obtained specific rights to use the Logo, brands and material that you're recording? If everything that comes under sight and sound is owned by you, then it's yours...theoretically. Getting it done legally/contractually is another matter. A good lawyer is what you need.
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Old February 1st, 2011, 05:31 AM   #5
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Originally Posted by Sareesh Sudhakaran View Post
I have a thought:
Let's say you make the DVD and sell it. Have you obtained specific rights to use the Logo, brands and material that you're recording? If everything that comes under sight and sound is owned by you, then it's yours...theoretically. Getting it done legally/contractually is another matter. A good lawyer is what you need.
Don't confuse ownership of the copyright on the video with ownership of the rights to the elements depicted in the video. If I take a picture of you, I own the copyright to the picture itself. You can't publish copies of the picture I made of you without my permission. But you own the rights to exploit your likeness and so the reverse is also true, I can't actually USE my copyright to do anything with the picture, for example sell it in a poster shop or display it in a gallery or use it to illustrate an advertisement, unless you give me permission to show your likeness publically.
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Old February 6th, 2011, 12:39 PM   #6
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Have you looked at it from the perspective of the client? They're paying for you to do a job and then you wish to claim ownership of the finished product???

I could imagine them being quite ticked off.

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Old February 6th, 2011, 01:04 PM   #7
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Have you looked at it from the perspective of the client? They're paying for you to do a job and then you wish to claim ownership of the finished product???

I could imagine them being quite ticked off.

Andrew
That's why a written agreement that includes assignment of rights upon payment of the fee is so essential. Under American and Canadian copyright law, with a very few exceptions, the copyright on a copyrightable work goes to the author, the person who actually creates the content of the program in its final tangible form, NOT to the person on whose behalf the program was created. The author would be the producer in most cases. The fact that the producer, NOT the client, owns the rights by default is a great incentive for the client to actually pay his bill since the producer can withhold permission to use the program until he's been paid! Under the law such an assignemnt of rights MUST be in writing, it can't be oral or understood. And insuring you get paid is a great reason for not just ignoring one's rights and assuming they go to the person requesting the program be made. One of the exceptions is a work-for-hire where a creative person's employer owns the rights to the content he creates but an independent professional working under contract is not an employee and work-for-hire does not apply, even though the professional is being paid for his work.

Maybe give the client a screener with a watermark "Copyright Joe Video 2011" plastered over it and when he pays the bill he gets a final release copy without the watermark.
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Old February 6th, 2011, 03:03 PM   #8
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Does it matter if both parties are in agreement.

Just to complicate things - I often do a joint ownership deal - we share the copyright and if I sell the product, I pay the original client a percentage, and if they sell it, I get a percentage. If you know your clients and actually chat about it before, it does work. There's obviously the chance one party will rip off the other, but with my kind of items being sold in theatres, there's a good chance I'd spot it.

One client complained he'd sold very little direct from his web site, so I sold a few on ebay - he was pleased to get the extra - so it can be done.

The really important thing is to agree it in advance, before any get sold.

If I do projects that probably have a short shelf life - exhibitions is a good example, 5 days and it's done - I often retain the copyright but grant them rights for a specific period. I'm then free to use the specially composed music again if I wish. Other projects I know I never want to see again, so giving those rights away is probably best.

The phrase "in perpetuity, in any territory" are quite common.
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Old February 7th, 2011, 05:50 AM   #9
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Does it matter if both parties are in agreement.

...
The really important thing is to agree it in advance, before any get sold.

If I do projects that probably have a short shelf life - exhibitions is a good example, 5 days and it's done - I often retain the copyright but grant them rights for a specific period. I'm then free to use the specially composed music again if I wish. Other projects I know I never want to see again, so giving those rights away is probably best.

The phrase "in perpetuity, in any territory" are quite common.
Sure, you can sell or give away your copyright on IP you have created if you want to do it. Don't know about UK law, but this side of the pond any transfer or assignment of copyright MUST be in writing, you can't do it with a verbal understanding, but if you put it down on paper it's certainly legal to do..
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Old May 5th, 2011, 10:38 AM   #10
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Re: who gets the rights?

Like others have said I'm not a lawyer but my understanding is that in the UK at least, under the circumstances the OP described, I have made and sold a complete programme knowing it was to be sold by the client. I delivered the finished project and they paid me. End of contract.

On the other hand, if I include a clause in the contract which ties them to buying the copies from me they must, but unless it's stated otherwise in the contract, they can sell the dupes where and for as much as they wish.
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Old May 5th, 2011, 04:19 PM   #11
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Re: who gets the rights?

As already well beaten, YOU MUST create a CONTRACT spelling these sorts of things out, even if it's crude, handwritten and somewhat informal (bettern than NOTHING!).

A contract spells out the expectations and agreements of BOTH parties, and generally, unless part of the contract is ILLEGAL (you can't contract to have someone "knocked off"... well, you can, but...), it will define the relationship so there aren't any "misunderstandings" later.

Not saying an attorney can't bcome along and parse every word until the contract is unrecognizable or unintelligible (ever think about why so many "contracts" are so long and virtually unreadable?! Makes them hard to enforce unless you have a bank of "corporate attorneys"!), but at least having the "understandings" committed to paper and ink and SIGNED BY ALL PARTIES gives you some amount of protection and boundaries as to what is and isn't "OK".
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Old May 7th, 2011, 06:47 AM   #12
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Re: who gets the rights?

But don't forget, Dave, that the law spells out precisely the default settings of who owns the copyright to any piece of IP. The parties concerned are always free to arrange something different from the law's defaults if they wish but at least under US and Canadian law, any such arrangements are explicitly required by the copyright statutes to be in writing. The law states that ALL copyright transfers from the original owners, as defined under the copyright law, to anyone else, such as the transfer of copyright ownership from a program's producer to his client, must be through a written contract, in order to be valid. It can work the other way around too - for example, in a work-for-hire situation the copyright on work produced by an employee goes to the employer. But there's nothing to prevent an employee from negotiating an employment contract where the employer would transfer the copyright back to the employee, it's just that such an agreement would have to be in writing in order to be binding.
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