Right - the point of difference between us, unless I've misunderstood what you have been saying, is that I maintain that a freelance videographer contracted by a bride and groom to shoot their wedding or by a company to come in and shoot a training video or the president's speech to their annual stockholder's meeting is not merely a camera operator or video technician and is not an employee even if he is being paid. At one point I think you stated that if you were paid to make the video, the simple fact of being paid made you an employee and gave the rights to the footage you shot to whoever it was that footed the bill.

There are well established "rules" as to who is an "independent contractor", generally an employee "works" for the employer, and the work product belongs to the employer, unless otherwise stated in writing (the earlier referenced contracts being good examples). An independent contractor would "own" the work product unless they specifically sign the copyright over to the client (which IMO is appropriate once a project is completed, other than "demo reel" usage).

Where there's no contract, things can be interpreted virtually any way that gets argued...

This is why having a contract at least provides you SOME protection, although it's not a lock. Even clear contracts can come into dispute once lawyers parse "is"...

When in doubt, define the parties, identify the project/product, state who has what "rights" and ownership, and try to at least generally specify any expected eventuality and how it will be handled... IOW, take the time to at least scribble out a contract memorializing the understandings between parties. If you don't, good luck later...

My two cents:
If you have not had me fill out tax forms for tax credits, taken my Social Insurance Number (Social Security to you 'mericans), withheld taxes and paid my Employment Insurance premiums and Pension contributions, I am not your employee and you are not my employer. I am either a freelancer or a representative of my employer (who happens to be ME and the business I am the sole proprietor of) performing a service that you have contracted me and/or my company to perform. PERIOD.

There has been discussion in this thread as to whether one is an "employee" or "freelancer". Clients often "assume" that we are "employed" by them and this has been my rationale that everyone seems to get.

<This was in response to a Moderator/Wrangler post that seems to have disappeared>

Can't remember exactly where, but somewhere in the Taking Care of Business forum (I think) was a link to an IRS page that defined who is and who is not an employee in the film/video business - it's a set of definitions that are rather unique to film and video and not always what you may think.

Jim's right.

It's more complicated than you think.

Search on the terms "copyright law" and "work made for hire" and you'll get an idea of how technical it is.

There are a set of criteria, and you must meet ALL of them (IIRC) in order to truly be an "independent contractor" including stuff like not working at the employers place of business, not using his gear, setting your own schedule, working without direct supervision, and more. You might easily conform to some of the definitions, but miss on one or more - and if so your rights to the footage might be arguable and you'd BETTER have a written agreement in place if you think otherwise.

The determination is more the province of CPAs and Lawyers and the IRS, not laymen.

(In other words, the rules are NOT discernible by just thinking them through using logic and common sense - you must KNOW the actual rules involved or you can get in trouble.!

When in doubt, seek professional advice. Period.

Ken,

You wanted thoughts, so here you go.

There are many different kinds of "valuable" things here.

The recorded videotapes of the band's works are one.
Your relationships with the people in the band are another.
Your reputation is yet another.

So lets look at some of these...

As to the videotapes - who are they valuable to?

You're considering protecting their value as it relates to YOU and seeking advice on your right to control and manage those rights on your own behalf.

And you've gotten advice on that issue from many here.

But I want you to think about this from another perspective.

The work you did undeniably has value - but while you were the "creator" of the footage itself - that video is a recording of what is essentially the talent and work of others (the musicians) and unfortunately, the ONLY way you can really keep tight control YOUR rights, is to obstruct the musicians access to the benefits of THEIR own creative efforts.

Essentially you have to say that your rights are SUPERIOR to the rights of the musicians.

Hummmm...

Let's put that aside for a moment and consider the OTHER things of value.

First, your relationship with the band. If you dig your heels in on this, expect to lose that. Because you're locking them out from getting the benefit from THEIR OWN efforts.

That frustrates people. It makes them see you, not as a colleague, but as a guy who looks out after #1 first. Musicians are, as a class of people, typically not fond of this approach.

Next, the issue of the value of your REPUTATION. This is a classic "put your self in the other parties shoes" deal. If it was YOUR creative work that someone else had recorded, and they were putting up "conditions" on your access to it. How would that make you feel?

So how do you decide what to do?

If it was me, I'd consider that the whole "rights picture" of this to be is pretty complex. It's not just about YOUR rights, but a nest of rights including, potentially, the songwriters, musicians, etc. - and I think it's gonna be VERY hard to profit from these tapes unless someone really spends a LOT clearing up this kind of stuff.

If so what is really in this for you to lose?

For me, I think the relationships and reputation might be a LOT more valuable to me in the long run than the value of the recordings.

Personally, I'd probably keep a copy of the tapes for my own amusement (and because bands are kinda flakey and might LOSE theirs!), but I'd then send the originals right to the band with a really nice letter wishing them well.

They might NEVER mention it to anyone else. If so you've lost little of value.

But then again maybe someday they WILL remember that you're the guy who DIDN'T hassle them about this stuff. Who took the high road and did everything possible to HELP the band. And perhaps they'll remember that when they talk with their friends - and perhaps even pass that along to someone who can help you up the next stage.

See, there are "rights" and then there are "rights" - and sometimes letting go of one form of "right" might be more "right" than grasping onto other "rights" such that people stop thinking of you as the right kind of video guy - at least as it relates to rights. Right?

(Sorry for the last sentence, couldn't resist!)

Good luck.

This is all so technical. Ken did this for free from what it sounds like. Compromising would be so much easier than getting a lawyer involved.
Examples.
If you think there music is good, give them the footage and draw up a contract saying you may have sync licenses to 2 or 3 of their songs.
Watermark the footage like others and I have suggested.
Draw up a contract that says they hire you for video if they go on tour(assuming that what you shot was good).
I'm sure you could think of more.

Yes. Get everyone to sit down over a cup of tea, sort it all out eg who gets what share of what and whether Ken gets to film the tour etc, put it down in writing and then get a lawyer to check that over before signing anything.

But how does this relate to owning footage? If you are a freelancer or independent contractor, that does not necessarily mean that you own the footage, AFAIK.

Of course, contractors still do work for hire, where they do not own the footage that they shoot.

That is true, but in most cases, if they have creative control the fact that their utilization is a "work-for-hire" arrangement must be spelled out in writing in the employment contract for it to be so. Only employees performing in the course of their regular job duties are automatically in a work for hire situation. Creative contractors hired to produce a finished work automatically own the rights to the piece unless it is explicitly spelled out in writing that they do not.

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.

Steve, I stumbled across the Canadian copyright law site today and have some bad news for you man...

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."

If someone else pays you to shoot it, they own it.

If you shoot it, working for someone else under contract, regardless of being an "employee", regardless of pay, unless it's a printed publication, they own it.

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?