Who owns the audio ?
 

Just out of curiousity, if I'm recording the audio myself with my own gear, and for an independant producer, that probably isnt backed up by heaps of paperwork, are the files anybody's and 'royalty free' because I've not copyrighted them, or do I have any legal rights to these recordings since I've captured them?

You *do* have rights for anything you create, but it's more difficult to pursue infringers if you haven't registered copyright on that material. Then again, I'm not a lawyer, so that's just what I think, not what I know.

Copyrights
 

Any art or work you a compensated for in it's creation becomes the property of the client.

Also if you record any copyrighted material (like a background radio station playing music) can be a violation of the copyright laws.

Even if you record a Harley exhaust sound (copyrighted by the HD company) you can be in violation of recording a copyrighted material (depending on how its used).

Who owns the work
 

As a employee (Editor) of 2 nationally distributed magazines all work I am paid for (even if there is no written agreement) becomes the property of my employer. If I am sent ad art components and create an ad, once we are paid all parts of the ad art become the advertisers property. If you are not paid you retain all of the copyrights (even if it is not in writing)

Are you a lawyer or is this just your opinion? Now I will be totally upfront, I am NOT a
lawyer so this is just my opinion. From what I have been told by others....it depends.
If you use your own gear to create something for a client who owns what? I've been
told it depends. If I create a DVD for a client and use maybe 1/4 of all the footage I shot,
who owns the other footage? Usually you want these situations spelled out in a contract,
but if you DON'T have them spelled out in a contract, I'd contact a lawyer that specializes
in this area.......because I'm pretty sure that a blanket statement 'that any work that you
are compensated for in it's creation is the property of the client' is not really accurate...
or at least not the whole truth.

***edit: Just noticed the original poster is located in Canada. No idea how copyright law reads there.***

My understanding is a little different than Mark's - however, I'm not a lawyer either. I'm writing purely of my experience as an employer, employee, and freelancer.

Correct, as far as I understand - the key word here is "employee". All creative works are presumed to be owned by the employer.

Not quite as clear. It isn't compensation that creates an employer/employee relationship, there are other measures used. If one is a not an employee, and creates a work, the copyright is presumed owned by the creator. By usual working practices the client owns the work, however, in that this is usually not supported by a written license or assignment of copyright, it may not be seen this way if it is contested in court, depending. I've seen production companies assert ownership of outtakes, for example.

I've heard that sound effects gathered from the field are usually not considered to be covered by copyright, because there is no act of creation. This gets a little more interesting in that H-D have asserted there is an act of creation associated with their motorcycle's exhaust. Maybe it would stand up in court.

I've found one practice to be most helpful: Don't work with people with whom you may end up in court. Been there, done that, it's not worth it.

Good advice!

Further Copyright information
 

Copyrights are generally owned by the people who create the works of expression, with some important exceptions:

If a work is created by an employee in the course of his or her employment, the employer owns the copyright.
If the work is created by an independent contractor and the independent contractor signs a written agreement stating that the work shall be "made for hire," the commissioning person or organization owns the copyright only if the work is (1) a part of a larger literary work, such as an article in a magazine or a poem or story in an anthology; (2) part of a motion picture or other audiovisual work, such as a screenplay; (3) a translation; (4) a supplementary work such as an afterword, an introduction, chart, editorial note, bibliography, appendix or index; (5) a compilation; (6) an instructional text; (7) a test or answer material for a test; or (8) an atlas. Works that don't fall within one of these eight categories constitute works made for hire only if created by an employee within the scope of his or her employment.
If the creator has sold the entire copyright, the purchasing business or person becomes the copyright owner.

This is off-topic a bit, doesn't have anything to do with DV, but it touches on copyright. I watched it unfold personally and knew people on both sides of the transaction. The following is not intended to be anything more than interesting reading.....

I had a very large MLM company as a client. From about 1986 or so, all of their software was custom developed by two people. For the first 2 1/2 years, the developers worked at the company's office. After that, they worked from home - one in the same city, the other from about 2000 miles away. They logged into the mainframe to work, and their time was tracked with some time of auditing software (I only mention this because the following numbers are quite staggering).

The arrangement worked like this: the developers submitted their time weekly (they were considered subcontractors) and were supposed to be paid every payroll cycle. Both were billing at $90/hour for the first 40, time and a half for everything after that.

The primary programmer billed the company an average of 80 hours/week for SEVEN YEARS. Sometimes she was paid promptly, other times not. Meanwhile, the MLM company grew, expanded into other countries, became the target of many lawsuits over deceptive business practices, etc. I won't say the company is a scam, but to many people their tactics might be considered, at the very least, unethical. They were spending quite a bit of money with me at the time - sometimes I would get paid promptly, other times they'd drag me out as long as 180 days. I always got my money and I knew top management, so I continued to do business with them until...

Most upper level management was forced out (not the CEO, though), and when new management was in place, one of the first things they looked at was the money being paid to the programmers. They calculated that they could have an in-house programming staff of at least half a dozen people for the money they were paying just the one gal locally. By this time, she had become a customer of mine, too, and while I wouldn't call her a close friend, I knew her pretty well.

Said company hires and IT manager who is instructed to hire developers, which he does. After delving into the system, they realize they don't have the source code for ANY of the software, only the compiled files. Decompilers for this particular language were not commonplace at the time (1996), and the ones that were available yielded code that was difficult (if not impossible) to sift through. So they contact the gal and instruct her to fork over the source code. She agrees to do so - for $1m. To this point, she had collected over $3m in programming fees.

A short legal battle ensues, and it is determined that she does not have to hand over the source code. Company pays her a million bucks in two installments spread over 60 days. She hands the source over.

About 5 months go by, and the IT manager and his entire staff don't seem to be producing the same quality and volume of work as the one gal had been. They contact her and ask her if she would consider programming again for them. She says, "Of course, but I charge $150/hour now, time and a half for everything over 40." Company agrees to her terms, fires the IT manager and all the programmers, and she promptly begins billing them ~80 hours/week for her services.

Last I heard (around 2006), she was still at it. I sold that business in '04, so I lost touch with most of the people involved. I did visit her TRAILER once (granted it was on 300 acres of prime real estate, but still...a trailer?), and she had photocopies of the two $500k checks underneath the glass on her desk. She drove a Taurus, always dressed in polyester slacks, and to look at her, you would think she shopped exclusively at Wallyworld. Never been marrried, no kids, and no family to speak of.

Oh, the company? They're still at it...use to sell water filtration systems and now their big product is a dietary supplement that ostensibly supplies all the vital ingredients found in fruits/vegetables. I think they've run into some complications regarding their somewhat spurious claims of what the vitamin product really does, but that's another story.....

Some people dream of hitting the lottery. I dream of landing a customer like this.

Hope this isn't considered a hijack, but it contained some elements of "who owns what", so I though I'd share. If it offends anyone, I'll delete it.

Best ~ Lee

Another tangental annecdote. The sound of a Harley Engine is TRADEMARKED not copyrighted.

And technically, it goes "potato-potato-potato..."

(The things you learn from being married to an IP attorney.)

Hmmmm... Does this mean you have to put a TM caption whenever you hear a Harley? ;-)

Or just you can't use a Harley engine sound over a shot of a Honda.

I BELIEVE it means you can't produce an exhaust system that sounds identical to the noises made by an air compressor... I mean Harley Davidson... <in jest - although I did get exceedingly tired of hearing HD aficionados rocket past my old apartment at 4 in the morning because they were surrounded on three sides by concrete buildings and the fourth by an earth berm. I believe this was done SOLELY for the reverberation created and ANNOYED THE *&%$ out of me as I tried to sleep>.

Oh, please don't delete it - that is an amazing story. I imagine that the court case turned on two issues: There was never a contract that specified ownership of source code, and the two workers weren't employees. Copyright remains with the creator.

And you know, media production *and* software development are a funny thing. As the saying goes, 9 women can't make a baby in 1 month. Sometimes, a department of 6 coders can be way less efficient than one coder who was there at the start, has mad skills, and knows how things are put together.

Learn about copyright!!!!!
 

Just wanted to point out in bold type and exclamation points that is incredibly wrong.

Learn about copyright here - there are dozens of links as well as a primer: Editorial Photographers - Copyright

As for point one above: You own copyright to anything you create unless you are an employee or explicitly give up the rights by contract (work for hire.) Doing regular contract work or freelance jobs does not make you an employee.

Copyright is incredibly important to being able to make a living as a creative. The orphan works bill is the latest and worst attempt by big corporations to screw creatives. Educate yourself about copyright and urge your legislators to protect your rights!

(But in the case of the original poster, the audio you're recording probably belongs to the person/group making the noises you're recording. Your intellectual property is the mixing/editing of those noises/music/speech into something else.)

As for point two above: Incidental use of background noise is explicitly permitted in copyright law; what you can't do is use the background music or sound out of context. Above all, copyright law says you can't harm the commercial interests - in other words, you can't record and use enough of a song that someone could use it for other purposes. One note from a Beatles song could be a violation if you used it as a soundtrack, while an hour of use as parody could be ok - or not, depending on how much money you have for attorneys.

The tricky and expensive part about copyright is that it is decided in court, and not in statute. It is always better to err on the side of caution.

And for the Harley sound, as was pointed out it's a trademark, not a copyright, and that's an entirely different area of law. Copyright covers your creative work, not brand.

Well, to be fair, it's NOT an entirely different AREAof law - trademarks, copyrights and patents all fall under the heading of "INTELLECTUAL PROPERTY" - but yeah, trademark and copyright are different subjects. All good points you've made too.

Again, I am not a lawyer, but this is how I understood it as well. Mark seems to be an
employee, so what he creates probably WOULD be owned by his employer. I am NOT
an employee, even when a company hires me to create a DVD or video for them.
The way I understood it, I owned rights to what I created UNLESS I signed away those
rights.......again, I am not a lawyer, this is just what I understood from talking
with people who know much more than I. I have a 'contract' I have written up with
help from various documents off the internet, which basically gives the clients the rights
to play, broadcast, display on their website or the like, the video I made for them. However, I usually state that the copyright remains with me, and that I can use the work
for such things as displaying examples of my work, inclusion into another video (unless
there is some confidential material that the company wants protected because of 'trade
secrets'....this has happened to me twice and both times I agreed that I would not show
certain things in any other videos), or basically anything I want. In my experience,
companies just want their video, either so they can sell a DVD about their company, so
that they can show it to employees, so that they can air a TV spot on local cable, or
something like that. They generally don't care about the copyright....again this is
only in my experience.

However as referenced, this things are decided in a court, and NOT defined real well,
so be careful and talk to a lawyer if you have any doubts.

In closing, I will tell about a story I read once, (on a freelance video production board) about the video production company that a big retail company (I think it was Walmart) hired to record internal meetings and policy discussions with the retail company
bigwigs. Anyways, after a number of years, the retail company abruptly fired the video production company. I think the video company had invested most of their time in doing these videos, and had lost most of their other clients and this left them in a hard spot financially.

So, the video company decided to SELL the videos they had of the retail company's
'bigwigs' meeting and discussing policy. Apparently there were some not so nice
behavior, language, or sexual harrasment, that the retail company did NOT want made public and they tried to claim that they held the copyright to those videos because of a similar claim that Mark talked of above....using the 'work for hire' provision. However,
the video production company had NEVER signed anything that gave away their copyright
to the videos, so it turned out that the retail company had to 'purchase' the videos from
the video production company to keep the videos from going public....and the 'purchase'
price was very, very high.....I seem to recall over one million dollars.

Lesson is.....be careful and if you might be in a situation that could burn you, use a lawyer.
Internet video boards are probably not a good place to go for legal advice :-)

If I'm hired by a company as a freelance cameraman, I do not expect to hold any copyright in the material I shoot. The industry uses a lot of freelance people and it isn't practical for everyone to hold copyright on material they shoot for other people. Although, if they are break the terms of such an agreement (ie I wasn't hired as such) I could use copyright as a means to apply pressure to obtain payment if required - although this seems to apply to the camera operator, not the DP if they aren't operating. This is different to stills photography, but the nature of how material is used is very different in that medium, a photograph is a stand alone "work", not a part of a larger whole which is the "work".

It's pretty common for you not to sign a contract on every job, usually it tends to be on dramas that you sign a contract. If you freelance for a major broadcaster such as the BBC in even accepting the work you need to agree that they hold any copyright. This used to informal, now it's a more formal arrangement.

This is different to you making a film or a company producing the film or video or shooting material for yourself.

But if a company or a producer hires a freelance sound recordist for a production they wouldn't expect the recordist to hold the copyright to the material and in paying them to perform that role they expect to be buying out any such rights. That's different to the recordist recording material as part of their own business, eg for their sound effects library and then production company paying for use of that material.

In practise, even directors hold very few rights. Although, this is written into their contract or letter of engagement because their creative relationship to the production is much more complex and can involve scripting etc..

Copyright is a complex matter and you should check with a lawyer if you have a particular issue.

Freelancers and independent contractors are generally not employees of their clients and the simple fact that they are being paid does not in itself make them so. As I understand it, unless you're a regular full, part-time, or temporary employee acting within the normal scope of your employment duties or otherwise fall into one of the categories defined as work-for-hire in the copyright statues, for your work to be considered to have been created as a 'work-for-hire' you must have a written agreement and your contract must explicitly state that the resulting work will be created for the client as a 'work-for-hire' using those specific words. Absent that exact wording, the creator of the work owns the copyright. But in the case of a sound person, such as the question posed by the OP, the "creator of the work" would probably NOT be the sound recordist most of the time. The producer and director are directing his work, telling him what to record and how to record it and directing the performance of the talent. That makes them the creators and the recordist is serving as a technician acting under their direction. He does not have any direct creative control. It's much the same as a cameraman - the DP is the creator of the shot, not the camera operator or focus puller. So it's not an issue with below-the-line crew because they do not exercise direct creative control. And the above-the-line creatives such as the director or the composer of the score typically have contracts that make their work a work-for-hire so the production company owns the copyright to it.

Rather interestingly it seems that the operator holds copyright not the DP because the copyright is in the framing rather than the lighting. The DP being the creator of the shot framing would depend on the on set working relationships and some DPs can be pretty hands off.

In practise, a freelance DP won't be making copyright claims unless something goes wrong. I suspect the actual laws may vary in detail from country to country, although there is now a tendency to have a written contract or one of those by accepting this work you will be working under our terms of employment agreements, even if you haven't signed anything.

Who is an employee
 

This was referenced on anther thread some time back - worth reading the IRS's idea of who is or is not an employee in the film and video business.

http://www.mca-i.org/en/art/?9

There can be variations between countries.

In the UK it can depend on the number of clients you have. For example in the UK, you may be freelance DP (or in the TV broadcaster's terms a camera person - a DP being someone who is head of dept. on dramas rather than a TV programme), but you only work for one or two clients, you could be PAYE (pay as you earn) as against the self employed Schedule D.

Excellent point! While copyright law itself is reasonably consistent from country to country due to the Berne Convention, the definition of "employee" can vary extensively between jurisdictions and tax authorities. And even copyright itself can vary - for example, I was recently surprised to learn that here in Canada a portrait or wedding still photographer who is hired by someone to shoot a portrait or cover their wedding does NOT own the copyright to the resulting pictures but by law copyright belongs to the client. When I learned about copyright law in the States a number of years ago, the photographer would own the copyright as the creator of the photographs and the fact he was hired and paid by his client to make them doesn't change that. And to make it even more interesting, Canadian law explicitly addresses photographs made by still photographers but is silent on video shot by videographers.

A couple of points:

-Work for hire must be a "prior written agreement". Meaning the work for hire contract must be signed before any work is performed.

-You hold copyright the moment the image or video is created BUT you have very little legal weight when a lawsuit is filed if the copyright is not registered with the Library of Congress Copyright Office. If you file a lawsuit and you have not registered the copyright the most you can win (generally) is the fair market value that you would have licensed the works for. In order to win statutory damages (where the real money comes from) and legal fees you must have registered the works. In fact, most IP attorneys will not take a case unless the works have been registered.

Duane

Again, this varies from country to country, best check the local legal situation and any procedures required. For example the UK has an Intellectual Properties Office, but it doesn't have a copyright office where you register. However, there are other organisations which will offer that as a service either to their members (eg Writers Guild or BECTU) or for a commercial fee for a set period.

http://www.ipo.gov.uk/c-basicfacts.pdf

Copyright - BECTU

If you are truly an independent contractor (and owning your own gear is only one indicia and not necessarily dispositive), absent a written agreement to the contrary, you own the rights in the audio (though not the underlying material). You do not have to register the copyright to accrue rights -- you have those as soon as it is fixed in a tangible medium, i.e. recorded. However, I would not assume that you are an independent contractor -- there are a number of other questions that would have to be answered first. If you are not an independent contractor, your employer would own copyright in the recording.

IANAL Mark, while you may well be right in your specific case about your employer owning the copyright to your work, you aren't quite correct in your explanation of the reason behind it. It all hinges on whether you are an employee and the mere act of being paid for the work DOES NOT make you an employee. Freelancers and contractors usually are not employees. If you are paid a salary or wage, have taxes and SSI etc withheld, work specific hours as set by your employer, at a required location and with their tools and equipment, work under your employer's guidance, direction, and supervision, etc (a bunch more IRS guidelines) then you are an employee and copyright to your work belongs to your employer as a "work-for-hire." But a freelancer hired to create a peice of work who works under his own direction and initiative, with his own tools, on his own timeclock, etc is not an employee even though he is paid a professional fee upon delivery of the completed work. Your lawyer isn't your employee even though you're certainly paying him for his work, right? In the case of the freelancer/contractor, the work IS NOT a "work-for-hire" unless there is a written agreement that says it is, using the exact words "work-for-hire." And if it is not a work for hire, the copyright remains with the freelancer or contractor who created the work. Of course, he may transfer the copyright to his client and making that transfer might even be a requirement for his getting paid but once again, the transfer of copyright MUST be explicitly stated in writing for it to be effective.

I would hope that Paul T might comment on this, but I think we're confusing the concepts of employment and "work for hire".

I believe they're different animals.

Example - when I joined IBM in the middle of the last century, software was not patentable. Hardware was. Engineers on joining the company were required to sign an exclusive assignment agreement stating that all patents they received were exclusively assigned to IBM.

Patents were (and are) issued in the name of the "inventor", but pursuant to the assignment agreement, all rights belong to IBM. I don't recall hearing the term "work for hire", but that's not to say it wan't used - it was after all the middle of the last century so I think I could be forgiven for forgetting.

By the way, my father was an engineer and held many of the basic patents on the mechanisms used for the self-unloading systems on the Great Lakes ore carriers - the rights to all of which were assigned to his employer, even though it was his name on the patents, copies of which I think I still have around here somewhere.

While Patents, Copyrights and Trademarks are all "Intellectual Properties" - there are differences in how they are handled, assigned and how long 'ownership' can last. So lets not confuse Patents or Trademark issues with Copyright ownership and transferrence.

Paul Tauger (An IP attorney we are fortunate enough to have joined in the disicussion upthread) has pointed out that

--------------

If you are truly an independent contractor (and owning your own gear is only one indicia and not necessarily dispositive), absent a written agreement to the contrary, you own the rights in the audio (though not the underlying material). You do not have to register the copyright to accrue rights -- you have those as soon as it is fixed in a tangible medium, i.e. recorded. However, I would not assume that you are an independent contractor -- there are a number of other questions that would have to be answered first. If you are not an independent contractor, your employer would own copyright in the recording.

I agree that it would be nice if Paul could set us straight - but it was only an example. I still think employment and "work for hire" are different animals.

There may be intersections (hmm - intersecting animals - not sure this is a fit discussion for kids) but I for one would like to be clear on the basics.