Local TV Station has My footage on Website

[Don Rumsey]

Over the winter I filmed and edited a short promo film for a "friend" who owns a bar. He payed me for the service. No paperwork/contracts. He did ask if he could have the "raw" footage, and if he could take it to the local cable access channel to have them edit a promo as well. I said yes. We tried twice getting the footage to him. He had it in his possession on a hard drive yet never transferred it to his computer. We are in possession of it now.

Time goes by and I find a link on a Facebook page to the "new" commercial on the local cable access channels website. My finished product which had my business name on the front and back of the film, had been re-edited into a 30 second spot, which is being shown on the website under the title, "Samples of our work". I contact my "friend" and he says he will take care of it….that they shouldn't have it under samples.
I call the TV station myself, they say that some of their footage is mixed in…i say no there isn't. He says it's customary that they take footage from someone who provides it to them and put together commercials, and that i need to get with my "friend".

So….any thoughts?

[Allan Black]

Hi Don, as I read your post .. if your friend paid you for the original footage, and with no contract saying otherwise, then he owns it and can do whatever with it. But he should always give you a credit for shooting it.

But if he says he's not interested in any further involvement .. let it go. Any proceeds from litigation will go to the lawers and you'll be on the outer with the TV folks and 'your friend'. And it'll get around.

But .. you could ask for a credit from the TV channel, if .. you can show them the original footage they used a copy of. Show them other stuff too, you might get some work. Be positive and good luck.

Cheers.

[Garrett Low]

Not sure how it is in Australia but in the US it is actually the opposite of what Allan said. Even if your friend paid for the video, if there is nothing in writing to state otherwise, as the "author" you own the copyright to the asset. In order for you to give up those rights you either have to be an employee where making the video would be considered a part of your job, you have an agreement in writing that says the work was done as a "work for hire", or you sign over the copyrights in another instrument.

You do have the right to give a cease and desist to the cable company. Even if they did mix in some of their footage they cannot use yours without your consent. Now, that would probably be the end of your friendship but you do have that right. Now, if all they did was to take the raw footage, do a complete new edit, and put that out, they could have the right to do that so long as they had the rights to the original footage. Again, you shot it. And without any instrument to give up your copyrights, you have the right to control the usage of that footage.

Since there were no written agreements between you and your friend it would come down to a he said she said. And that means it will become a decision based on what is customary and reasonable. In this case it would most likely be interpreted that your friend paid you to produce a promotional video and that he has the right to show that video to promote his business. He does not have the right to re-edit or modify the video without your consent.

However, as Allan said, you may have more to lose by fighting the cable company but I would send a notice to them no matter what to document that they have infringed on your copyrights.

Good luck,
Garrett

[Don Parrish]

Just a question, but if he does not have the right to edit or modify how would he have the right to display ? It seems to me that the footage would either be owned or not. I can not think of a situation in which delivered footage can not be edited.

There is a commercial law in Florida that states "a verbal contract is considered binding when partial or full payment is made or partial or full delivery a product is made". I would think he owns the footage after paying for it and could do what he wanted.

You were paid for your work so what is the problem ? It may be possible to do more damage here, If someone is claiming it to be their work I see your point, if not, be pleased that your footage has been aired.

[Steve House]

Originally Posted by Allan Black

Hi Don, as I read your post .. if your friend paid you for the original footage, and with no contract saying otherwise, then he owns it and can do whatever with it. But he should always give you a credit for shooting it.
....

Originally Posted by Don Parrish

Just a question, but if he does not have the right to edit or modify how would he have the right to display ? It seems to me that the footage would either be owned or not. I can not think of a situation in which delivered footage can not be edited.

There is a commercial law in Florida that states "a verbal contract is considered binding when partial or full payment is made or partial or full delivery a product is made". I would think he owns the footage after paying for it and could do what he wanted.

....

Seconding Garret's post, I would be very surprised if Australian copyright law differed signifigantly from the US and Canada in regard to copyright ownership - we're all based on the Berne Convention. By law the default copyright to a piece of intellectual property belongs to the person who creates it and the fact the creator may have been paid to create it doesn't change that. The exceptions to this are works created by a bona-fide employee acting within the scope of his regular job assignment and works created as a 'work-for-hire' pursuant to a formal written contract, signed by both parties prior to commencment of work, that explicitly states the work to be created is done as a 'work-for-hire'. No written contract, no work for hire. Further, transfers of copyright to another party by a copyright owner MUST be in writing, verbal agreements are not valid for that purpose. (Don P - Copyright ownership falls under Federal jurisdiction, not state, and the Federal copyright statutes explicitly mandate transfers be in writing. The Florida commercial law you cite deals with verbal contracts, irrelevant to the issue of ownership of the footage.) The fact his client paid for the video does NOT make Don his employee, even temporarily. When the client requested that Don make the video and paid him his fee to do so, what he received in return for his payment was a license to use the resulting intellectual property for the agreed upon purposes ... he did NOT receive ownership of the copyright unless Don subsequently transferred it to him in writing. Ownership of copyright remains with Don and he has the absolute right to control uses of the footage falling outside the scope of his original agreement with his client, whether those uses are by a third party or even by his client. If I'm contracted to shoot an employee training video for you, you do not have the right to lift out a clip and use it in a television ad unless such usage was explicitly allowed by the original or subsequent agreement.

[Roger Van Duyn]

Sometimes what appears to be a "problem" is really an opportunity, if you look at the situation from a different perspective. Maybe you can arrange a cordial meeting with someone at the cable company, and establish a new contact within that organization.

Oftentimes, a good contact is far more valuable than the footage. People in business, including employees of the cable companies, are always looking for someone who is good to work with, and useful to them, and not out to "stick it to 'em." Who knows where a good contact can lead? Even with people changing employers, they still tend to want to continue working with "vendors" they feel comfortable with.

Sometimes a small short term loss can lead to a valuable long term relationship. Not every issue has to be approached from a confrontational perspective.

[Paul R Johnson]

This is very strange - 75% of my work comes from assigning my copyright and control to the client who commissions it? I have a choice of retaining copyright and effectively 'renting' the end product to the client, perhaps in limited territories or for a limited period, or I can assign the copyright in it's entirety.

It depends on what the agreement actually was. The requirement for written contractual agreement doesn't, I believe, apply everywhere. The important feature is that they cannot take the copyright unless the transfer is agreed to. In the situation we're using for this topic, here in the UK it's pretty likely that a court would accept that transfer did indeed happen.

I've not got an issue myself - one of our products appeared on one of the higher number satellite channels - with our top and tail missing, edited into a new programme - we were adequately paid for the production, and although a credit would have been nice, I didn't feel we had any grounds to complain.

[Christian Brown]

Originally Posted by Garrett Low

Not sure how it is in Australia but in the US it is actually the opposite of what Allan said.

Not so. If your friend paid you to create it, this is an assumed work-for-hire.

[Steve House]

Originally Posted by Paul R Johnson

This is very strange - 75% of my work comes from assigning my copyright and control to the client who commissions it? I have a choice of retaining copyright and effectively 'renting' the end product to the client, perhaps in limited territories or for a limited period, or I can assign the copyright in it's entirety.

It depends on what the agreement actually was. The requirement for written contractual agreement doesn't, I believe, apply everywhere. The important feature is that they cannot take the copyright unless the transfer is agreed to. In the situation we're using for this topic, here in the UK it's pretty likely that a court would accept that transfer did indeed happen.

I've not got an issue myself - one of our products appeared on one of the higher number satellite channels - with our top and tail missing, edited into a new programme - we were adequately paid for the production, and although a credit would have been nice, I didn't feel we had any grounds to complain.

If you choose, as a matter of business policy, to assign copyright to your client upon payment of your fee, that's certainly your perogative. It might make very good business sense from a competitive standpoint to do so. For example, a wedding shooter might choose to transfer all rights to the couple upon payment of their bill. OTOH, it might not. If you're shooting advertising the fees are often based in part on the size of the target market where the ad will run - an ad to be run locally is far less expensive than the identical ad to be run nationally. Giving the client copyright means he can do what he wants with the product while retaining copyright give you on-going interest and your client who originally had you make an ad for the local market can't take it national without paying for the upgraded license. But we have to be careful about blanket statements of "if the client paid for it they own it" that have appeared in this thread, suggesting that it somehow automatically happens. That is the issue I have been addressing in my posts. What happens automatically is the creator owns the copyright. Something else has to happen beyond simply paying his bill for the client to receive ownership, and at least in the US, that something else must be in writing.

[Rick L. Allen]

Don, here's what you said: "I filmed and edited a short promo film for a "friend" who owns a bar. He payed me for the service. No paperwork/contracts. He did ask if he could have the "raw" footage, and if he could take it to the local cable access channel to have them edit a promo as well. I said yes."

In your own words he paid you for your work, you gave him the footage and said he could take it to cable access for them to use. He can do what he wants with it and you need to chalk this one up to experience. Even when you do things with friends you should get a written agreement of some sort. I always do. They appreciate my professionalism and there's no whining later.

[Paul R Johnson]

In most of my work, I shoot material, and somebody else does things with it. I rarely see the end products - most goes into an archive for legal reasons, and some gets used for promos - but most of my work is actually very job specific material, so probably wouldn't be that useful. If they pay me, I give them the tape or card and we call it a draw!

[Don Parrish]

The copyrights are very specific for artist, there are guaranteed rights and rights that occur reguardless of circumstances. It envolves contracts and releases and is the type of thing best done before any shooting occurs. My original answer was specific to the situation. No contract, verbal agreements and all kind of probable outcomes from a miriad of possibilities. My suggestion still stands, lick your wounds, learn from it and go back to work.

[Steve House]

Originally Posted by Paul R Johnson

In most of my work, I shoot material, and somebody else does things with it. I rarely see the end products - most goes into an archive for legal reasons, and some gets used for promos - but most of my work is actually very job specific material, so probably wouldn't be that useful. If they pay me, I give them the tape or card and we call it a draw!

In that case you probably would be considered to have a work-for-hire relationship with the party hiring you. There's a difference between acting as a camera operator, doing the technical task of operating the camera's controls under the direction of the program's producer in order to capture the raw footage, and being the one who is the creative producer, the author responsible for creating the intellectual content of the completed video work.

[Shaun Roemich]

Originally Posted by Rick L. Allen

D
In your own words he paid you for your work, you gave him the footage and said he could take it to cable access for them to use. He can do what he wants with it and you need to chalk this one up to experience.

I think the REAL issue here is that the TV station has it posted on their website as an example of "THEIR work", which the editing could be argued to be but I'd suggest this is somewhat misleading to persons looking at the website who would (rightly, one could argue) ASSUME that all aspects of the program were the product of the station. Those of us in the business understand that there are MANY ways that a project can be put together. A layperson may well assume that the party advertising the product as their own was the sole or leading agent in the production.

Legally entitled to? Perhaps. Misleading? Well....

[Garrett Low]

Originally Posted by Christian Brown

Not so. If your friend paid you to create it, this is an assumed work-for-hire.

Christian, your statement is the exact opposite of the Works Made for Hire section of the copyright law. Unfortunately the Library of Congress website is down right right but when it comes back up you can look up the actual written section. However, it states that in order for the work made by an independent contractor to be considered Work For Hire, three specific conditions must be met:

"1. the work must be "specially ordered" or "commissioned." What this means is the independent contractor is paid to create something new (as opposed to being paid for an already existing piece of work); and

2. prior to commencement of work, both parties must expressly agree in a signed document that the work shall be considered a work made for hire; and

3. the work must fall within at least one of the following nine narrow statutory categories of commissioned works list in the Copyright Act:

(1) a translation, (2) a contribution to a motion picture or other audiovisual work, (3) a contribution to a collective work (such as a magazine), (4) as an atlas, (5) as a compilation, (6) as an instructional text, (7) as a test, (8) as answer material for a test, (9) or a supplementary work (i.e., "a secondary adjunct to a work by another author" such as a foreword, afterword, chart, illustration, editorial note, bibliography, appendix and index)."

The above was copied from this website:
Work For Hire

While not verbatim of the copyright statute it is very close and conveys how to create a work for hire. Point number 2 is a very important requirement. If nothing has been agreed to in writing, prior to the commencement of the work, it is not and cannot become a work for hire. Without a written agreement the assumption is that it is not a work for hire.

Again, this is for an independent contractor.

-Garrett