Of course, contractors still do work for hire, where they do not own the footage that they shoot.
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Lots of things to consider. The thing to keep in mind is that you are in a strong negotiating position. I'd say sit down with all concerned (including this mystery filmmaker) and come to an agreement you can all live with.
I had a similar situation with some footage I had shot of a musician for a documentary project that never went anywhere. The musician wanted to use some of that footage for a promotional website. Eventually, we bartered: I gave him permanent rights to use selected footage (with appropriate credit to me); he gave me permanent rights to use 15-20 min. of his music from his self-produced CD to score a future documentary. Everyone walked away happy and feeling like they got a good deal. Whatever you agree to, write it up, and give every party a copy with original signatures. |
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It looks like you've been completely wrong in your advice to people, at least in Canada (where we both are). The Canadian law backs up my generalization of: "he who pays, owns." Quote:
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Case closed... in Canada anyway. For our US friends, I suggest reading what the law has to say, rather than what the internet has to say, as in this case, they are quite opposites. |
On your first point I'll have to stand corrected, at least when it comes to the specific case of having a [commissioned] portrait made by photograph, engraving, or other means, but not your second. Your second quote specifically refers to "employment under a contract of service" ie, I hire you to operate my camera at my TV station and give you a contract of employment - that employment agreement is a "contract of service" as is every union agreement under the sun. But an independent contractor selling a service at retail is neither an employee nor an apprentice of his clients. When the plumber comes to your house to fix your pipes, he is not your employee while he is on your property or otherwise engaged in the job. He is an independent vendor selling a service to you. Likewise a videographer contracted to shoot a video for a retail client such as a wedding couple is selling a service as a vendor in the retail marketplace and his standing as an employee of the couple is in no way different from the plumber fixing your pipes. You are under the impression that the simple act of an exchange of currency in return for services rendered constitutes "employment." I think your doctor or dentist (and the courts) would disagree. So the issue becomes, is a video of the CEO's welcoming speech or the happy couple's wedding vows considered a photographic portrait commisioned by the subject?
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The only thing debatable at this point is the ownership of unpayed work, while volunteering for productions that don't have agreements covered under contracted service or apprenticeship. PS. I don't think my dentist would contest the fact that the intellectual property of my fillings is mine and mine alone... I think any judge who has been under the drill would agree with me. Actually, under the first article, they would be mine since I paid her to do them. |
I think there's a distinction between ownership of copyright and ownership of the media in which the copywrited content resides.
For example, you can't make copies of wedding videos for any purpose not authorized by the folks who hired you (because they own the copyright), but the tapes (I believe) belong to you. Of course, this is the real world in 2008 and I'm sure they can make copies of the DVD by themselves, but I think you are under no obligation to turn over the original high quality recordings. |
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Here is the US code (and commentary) and if you look farther into the Canadian version you cite I think you'll find it's substantially the same since both derive out of the Berne Convention. Quote:
For US law, see http://www.copyright.gov/circs/circ9.html Note the specific conditions in the Law of Agency spelled out there that must be met in order to establish if a person being paid is in fact an "employee." ----------- Found the Copyright Act online. From the full context, the provision you cite does indeed appear to apply to situations such as your going to your neighborhood Sears Portrait Studio or your local PetSmart with Fluffy the Bunny and commisioning a portrait to be made. In that specific situation, the person who pays for the portrait does indeed own the copyright to the image. But there is no indication that will extend to film or video images, or sound recordings. And provision 1, which you did not cite, says clearly and unambiguously that ownership of copyright belongs to the author of the work EXCEPT in the specific cases delineated in the sections you quoted, neither of which apply to the situation of our original poster. |
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So what counts as a contract of service? I think this is the final answer to our big question of who owns the copyright, so work with me here... If I hire you for a one off shooting event, does that count as employment under a contract of service? I would imagine, probably yes. If you come out to shoot something I'm doing, without an agreement as to a specific project, compensation, or purpose, then I'd say probably not. We need to find something that gives solid terms of what forms a contract of service. Quote:
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In the context of a videographer shooting at your event, if you provide the camera, tell him what and when to shoot directing the specific shots he takes, take delivery of the raw tape at the end of the shoot and/or supervise the editing, he would probably be considered your employee for the event. If you set his schedule, withold taxes, etc, he's almost certainly your employee. But if you hire him to deliver a one-off finished product then he's probably not an employee even though you requested he make the video and you pay him for it. |
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Unfortunately, I have better things to do than join you in grade three rhetoric. This thread has gone on far to long. There's plenty of information here for readers to make their own interpretations. Case closed. |
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