The value of my raw footage and my rights to it
 

I produce local commercials; one man, DV, run-n-gun style. Since I do this freelance, I rarely bother with contracts -- I don't have a super-steady stream of clients (although when it rains, it pours), and most of the work comes very last-minute.

I want to know how my personal interpretation of the transaction relates to how other professionals work. In my opinion, unless otherwise stated, the client is paying for the final edit of the commercial. They can do whatever they want to with the ad: have someone re-edit later, use portions in another ad, etc.

What they have *not* paid for, though, is the raw footage. As I see it, I retain the rights to the raw footage (although my use of it may be limited by whatever elements of my client's brand are in the shots). If they want the raw footage, they should expect to pay an additional cost for it.

Is this an acceptable view? I have not yet had a client ask for the raw footage, but I could see it happening. Perhaps they hire another producer to do their next ad and they want him to use some of my previous footage. In my opinion (and especially at the prices I charge, which are the cheapest in the area), if they have my raw footage, then they can edit together myriad other commercials at a great savings since they won't have to pay shooting fees -- using my camera work without paying me.

Is there a party line on this? Basically, if a client ever asks for the raw footage, is it acceptable for me to ask for money? Or does conventional wisdom say, "That's Work For Hire, son, and the client owns anything you created while on his/her clock"? Or somewhere inbetween?

When I worked at a local ABC affiliate station - I know the commericials were the thing the client cared about. The raw footage only came into play with them after they ran the commercial and then realized, "Wait, I don't want to pay for production again...I'll just re-cut the old footage and change 1-2 things."

However, I remember that the station owned the raw footage. The reason? Sneaky clients won't pay - or they ask for a VHS or 3/4" copy to "view at home and see if I like it". Well, they'd just take that copy right down to our local competition and air it there...not having to pay production costs!

Anyway, all you have to do is start making contracts that say you own everything until they pay in full. If its partial payment - you own the raw footage. If and when they pay in full - maybe you charge a small fee to give them the raw footage?

My 2 cents.

Murph

The law is, independent contractors own the expression that they produce, e.g. the raw footage, absent a _written_ agreement to the contrary. Employers of employees own the expression that the employees produce, absent a written agreement to the contrary.

If you show up with your own gear, make your own decisions about how to execute the project, are given a 1099 instead of a W-4, you are probably an independent contractor.

Why not use a bug over the 3/4" or VHS dub?

Some of this may have changed recently, but it may depend on your state's work for hire laws. Recent changes to some copyright laws may have changed some of the rights etc. But, in the '90's some states had laws, about what was an employer/employee relationship and what wasn't, that applied to certain creative type work. If your client could establish some type of employee/employer relationship they might be able to claim the work was theirs and you (the employee) produced the work while in their employment. A contract could be written to avoid this type of problem (if it even exists in the state you work in). You may want to contact a local attorney familiar with your state labor laws.

all the commercials i've worked on the client gets every frame/negaitve/workprint/tape/field, drawing/graphic , all materials ..it's in the contract. they hold all rights. the production company holds none ..however if they use a clip in another/different commercial and it had a SAG actor/actress they must pay them again, depending on the directors contract ?? ... if the commercial has a "star" they must make a $$ deal with em - a star can put a end to it..

i have shot commercials and i cannot post most of them up on a website for general public to view.
i have friends that put all their SPOTS (as in commercials not as in DSE) on their sites. but they didn't ask for permission. i've asked and most end up in the NO.

for past 3 1/2 months been trying to get permission to let panasonic use a spot that was shot on one of their camera's for their sample DVD that they woud play at trade shows ( nab, dv expo etc).
so far commercial production company 3-OK 's , ad agency 4 OK's , client ( cable channel) so far has gone thru 3 ok's but still needs another or maybe a few more ?? just found out becuase the SPOT was for a TV show will need permission from the producers !! i have the feeling the list of OK's will keep expanding ...

Paul, I've had media agencies pay me with checks, that have additional claims on the back of the check for me to sign (endorse). The claims usually involve ownership of footage, negatives etc. How would that stand up in court, barring any other contract to the contrary?

I didn't mean to contradict your prior post, you and I were posting at the same time. Sorry.

If the payment is consideration for the work performed, they can not alter the contract, i.e. require additional consideration from you, after the fact. I suppose they can argue that the endorsements merely memorialize the original understanding, but copyright law is rather clear: copyright is owned by the independent contractor absent a _prior_ written agreement to the contrary.

My question is more about the cases that a contract don't exist, like in John's examples. I had a payment from an ad agency that had a claim printed as part of the check endorsement that stated they owned the negatives, prints, media etc. I crossed out the added contract, endorsed the check and the bank refused to cash or accept the check for deposit because the endorsement had be altered. I ended up (long story) just getting a new check and signing it (losing all negs etc.). Ever since then I don't do work without a signed contract. Could photographers still lose their rights in this manner, in the absence of a signed contract?

You could always force them to give you a check without those conditions, and sue if they refused, but they can't impose new conditions on you without new consideration (i.e. payment) not previously agreed to, and can never, if you're an independent contractor, take away your copyright unless you agree in writing.

By the way, there IS a contract in these situations - there doesn't have to be a writing for there to be a contract.

Thanks for the replies so far. I'm glad that Paul Tauger stopped by -- I think he does a great job of communicating the law here at dvinfo.net.

I'm getting the impression that it is not unreasonable for me to expect the client to pay an additional amount for the raw footage and that the law sides with me on that.

My first step should then be to draw up a contract that states this. (It's funny, when I was doing short-run CD duplication and graphic design I always had the bands sign a contract, even though I was typically making less than half what I do from ads)

Don -- tell us more about the ads you've worked on. What was your role? Was the production company hired directly by the business or by a 3rd-party ad agency? Was the handing over of all elements specifically stated in contracts, or merely an understood aspect of the transaction?

From my experience (not to say that I'm correct), if a graphic artist creates a design in Photoshop or Illustrator, s/he will turn in a final product that is one layer. The artist won't, for example, turn in a .psd file with all original layers -- most artists don't want the client fiddling with their work all willy-nilly. The client, therefore, has limited rights to the designer's expression.

Peter -- when you say that "there doesn't have to be a writing for there to be a contract," I assume you mean a verbal contract. But verbal contracts are ultimately based on what is typically expected from such a transaction. If someone agrees to sell you their car, but then takes off all four wheels before giving it to you, you would have reason to take action. But they instead simply remove the cool crown air-freshener from the dashboard, no judge is going to award you damages for that (I assume).

Ergo, if a client can show that this sort of transaction typically includes the handing over all original elements, then a judge might say that Jeff (for example) should have understood this when entering into the verbal contract with the client. Wouldn't it be a matter of "What is to be reasonably expected in such a transaction?" (and that's what sort of sparked my original question)

Jeff -- that's interesting about the check. I've heard apochryphal tales of contracts being added to checks, but I've never heard a first-hand account from someone who got one. Is this more common than I thought?

Thanks again for the input.

Please don't take this the wrong way, I am just trying to help.

If you are bothered by so many questions, one possible scenerio could be that your clients do not respect you. Perhaps they seen you as a "cheaper alternative" to more established professionals, you are desperate, and they can bully and take advantage of you.

Being a photographer/videographer, I never have this problem. My clients do not question what I give them. If they want something better (the original footage, original resolution of the image), they ask me and I tell them how much more it will cost.

They expect me to treat them fairly, and I expect them to respect me and my work (i.e. pay my price).

In fact, at times when I have a new client, I would go out of my way to charge them even more, to see if they can "stand it". Of course I do this politely and make sure the work is on-par or better. If they complain or try to stiff me, then I politely tell them I am busy next time they call. No use trying to reform or "educate" weasels, they never change. If they are not professional, pretty soon nobody would want to work with them or do stuff for them, and they will loose. Trying to corral loosers will simply let them take you down with them.

Sorry, forgot to add, that now you know I will never get to work in Hollywood. :-)

The incredibly long post that somehow turned into a Manifesto...
 

Law

Actually, as I wrote in my original post, I have yet to actually have a problem with my clients (obviously aside from one or two who act annoyingly with *everyone* they encounter). Most of my clients seem to be fairly appreciative of the work I do, and the small minority who are "annoying to everybody" will find me surprisingly too busy to fit them into my schedule when they need another ad shot.

And since I work a 40-hr/week job on top of my freelance video work, I'm not exactly desperate. In fact, some weeks I'd prefer to take on less work, but I know that getting an ad done now may mean the difference between the ad rep making a sale and not. And ultimately, I like to keep the local ad reps happiest because they are the ones out every day trying to get new clients on the air. A happy ad rep who can rely on me to work with a tight deadline will tell more people about me than the happy client will -- simply b/c that's what the reps do for a living. Not to say I don't want a happy client, but if it came down to it and I had to choose between the two, well...

Anyway, my concern is just to better understand my rights regarding certain things *before* I encounter that one "weird" situation. And it's not just that someone will have a lack of respect for me -- they simply may not know what's acceptable. I produce ads and *I* didn't know what was acceptable until I posted this thread. I would hate to charge someone extra for the raw footage and then find out that charging extra is considered unacceptable.

I do understand your comments regarding perceived value, though: if one is charging bargain basement prices, then it must not be as worthy as the "pros" (or "brand name" product, or whatever). Ultimately, though, this isn't a concern of mine. We're talking about little locally-owned shops; we're talking about $300 vs $500 or $600 (and I must say that the local production team that charges $600 for local ads does some damn fine work). In my opinion, the customer does get what they pay for, and it works to my advantage: "This is what I do for $300. Here's a demo reel of my previous work. Here's my website with some more work. You don't like it, fine -- you can get a really nice ad done for $600 from these other guys. Oh, you don't have another $300 to spend and the other guys can't do an ad for another 3 weeks? Well, then, you got me -- like it or leave."

I don't mean that to sound harsh or disrespectful of my clients -- we all just have our own ways of demanding the respect that we want. You do it by charging more. I do it by charging less. (And in fact you are very successful at the one thing that most creative people are very bad at: demanding more money)

Charging less allows me to do ads how I want to do them. Me, one camera, a couple different tripods and a shoulder mount, and a small selection of mics. I use only existing/ambient light. No lugging around stands and spending extra time setting up lights. Voiceover? It's either me or the client doing it. Actors? Not too likely for $300, but if you've got some friends who want to be in the ad, make sure they're there. And make sure you have everything you want shot ready to shoot when I show up: Have those sandwiches made or guitars facing out. You get script approval, 2 hours maximum shooting time and one corrective change in the ad once you see the proof. I work during the day, so you must be available to shoot after 5:00 pm and on weekends. You are purchasing the final ad which you can do with whatever you want, but you do not own the raw footage. The final ad will be of comparable quality to my other work. That's it for $300.

Ok, so I've just laid down *my* law -- now we have to ask, are these terms acceptable? Which brings us to threads like this one.

John... in the "fall" commercial for Gardens I assume that was a professional announcer, right? How much did that cost and what did it entail?

That's pretty good work for $300 a pop. The Musician's Warehouse christmas commercial is my favorite... I'll bet that one generated some revenue for those guys.

'Aint it a bitch that our hobby/profession is so hit or miss with pricing and perceived value? $300 is nothing to see a job all the way through completion... I mean it's not bad if you could bang several of these out every week, but for a specialty service I can't believe how cheap some of us (myself included) are working.

Also earlier in this thread there was a suggestion of popping a bug into the video prior to letting the client have a "sample"... I put a thin RED X right through the WHOLE picture... just like ReVision FX does with their demo software with a tiny title at the bottom that says "unpaid video sample".

That contract on the check thing is an unfortuately common "work for hire" practice. I have a clause in my contracts that says the agreement cannot be interpreted as "work-for-hire" under federal or state law.

An interesting and useful resource is the Graphic Artist's Guild "contract monitor at http://www.gag.org/contracts/contracts.html.

Graphic artists face many of the same issues as video producers do, and much of the advise transfers. Some does not.

GAG is opposed to work-for-hire argreements in principle.

Matt --

The G. at E. "Fall" spot actually used their radio spot for the audio track -- I *wish* I could get as good a voiceover as that spot! The store said they had the rights to use the VO in the commercial, and I trust them (although I wouldn't necessarily trust everyone who said that). So I got that really nice V/O for free. One of my New Years Resolutions is to get better audio in my work.

Thanks for the kind words in general, as well. Personally, I can't look at some of those ads without thinking, "Uh, I wish I'd done that one shot with a tripod," or "I shoulda cut that shot 15 frames earlier." But for quick & inexpensive ads, I think they got their money's worth...

The Musician's Warehouse X-Mas spot was literally a last minute thing -- I knew that the owner (the fella in the commercial) wanted to shoot a christmas ad at some point, but didn't know when until the day we shot it. So that ad was conceived, written, shot, edited, and finished between Noon and 11:30 pm on a Sunday (and that includes the time spent going to the craft store to get poster board and make the big "Santa" sign!). I've known the owner for a few years and he's a good guy, so I didn't mind the short notice... too much. I also did two other versions of it that ran concurrently, with different opening shots (such as the owner throwing carrots on the ground, saying, "Reindeer like carrots") and different sale items in the middle "donut."

Yes, $300 isn't much, but I feel like I'm getting paid to learn and get better. One of the best local companies charges only $600 (so I hear) for local businesses (a fee which -- so I hear -- increases exponentially if they have to leave the city limits). They do really good work in my opinion -- so I kinda use them for a measuring stick when it comes to my ability and pricing.

Peter -- thank you for the link to the GAG. I agree that much of that advice is useful to both graphic designers and videographers.

I hope this wasn't too "meta" a post...

John, I have a couple more questions and observations.

How did you first sell yourself to do these spots?

What format do the buyers want the final copy in? (Or do you give a copy of the commercial to the buyer and then supply a different format directly to the local tv channel?)

I mainly noticed the tripod issue on the waterfall zoom out... but it's not bad.

Also I'm guessing you used some supplied photos and then did a motion path for some of those shots? (Like the family music business and wedding business?)... or else I'm guessing you shot a multi-pixel still for those?

Thanks for the commentary.

Matt --

There are two basic types of spots I do: "Graphic Spots" and "Full Shoots." The full shoots are the ones I've been mainly discussing, like the Musician's Warehouse X-Mas ad. The graphic spots are ones like the family-owned music store and the wedding apparel shop -- the client typically supplies the photos and since I don't (usually) have to go shoot anything, these cost about half as much as the full shoots.

For the music store, they had a professional photographer take pictures for use in their print and TV ads, as well as their website. For the wedding store, the owner took all of those pictures (some of which I had to clean up in Photoshop and put against new backgrounds). All I have to do is just throw in the ol' "Ken Burns" effect via Image Pan in Premiere; or maybe an amateur attempt at a "The Kid Stays In the Picture" effect in AE (a la the opening shot in Georgia Theatre ad on my site). Add graphics, text, etc...

Currently, I give the client a VHS copy of the final spot and I hand a miniDV of it to the cable company. I would also gladly give the client the miniDV to deal with if s/he requested.

As for how I sell myself -- I started doing graphic spots a couple of years ago... Nepotism Alert: my wife sells local cable advertising air-time and I had to bug her repeatedly to get her to use me for graphic spots. Finally she relented... but it took awhile for the other reps to warm up to the idea of using me. Finally, I think they saw that I was able to produce graphic spots as good as their in-house guys in half the time. When I started doing "full shoots," they liked my price and my speed, I supposse... The reps are now gracious enough to mention my name and give clients my card when they are out selling air-time (and as I said in a previous post, I try to keep them happy in turn). I am very, very lucky to have had the "in" that I did, but I hope that it's my abilities that keep people coming back for more...

As for "selling" myself to new clients -- I don't really do it, per se. I just give them a demo VHS tape and my prices (I'm the only guy in town selling his services for $300 -- other producers start at $500-$600). If they don't like what they see (either on the tape and/or on their bottom line), then I'm not the guy for them. I don't want to oversell myself or overstate my abilities (although, as you can tell, I don't mind rambling on and on about myself), and I'll gladly tell people about the really good work that other producers (one team in particular) do in town. Hopefully, I will continue to learn more and make money that I can reinvest into more/better equipment (such as audio).

Anyway, that's probably more than anyone ever wanted to know about a freelance, low-budget ad producer... :)

Getting back to the original question.
 

Simplified Chain of Command:

1: Client. Person or persons responsible for the selling of the product being advertised. These people oversee the hiring of all the people listed below. They provide all of the $$$ being spent on all of the following.

2: Ad Agency. Firm responsible for formulating an advertising campaign that will effectively portray the product being sold in an appealing and positve light, resulting in higher sales of said product.

3: Production company. Hired by the Ad Agency to provide both artistic (Director, DP, etc.), and technical (Camera crew, stylists, grips, gaffers, PAs, post production, etc.) personell necessary to complete the spot. This usually results in a finished spot ready for air.

In the hundreds of commercials that I have worked on, the Client has ALWAYS owned ALL of the materials used on or produced on a shoot. This includes, but is not limited to:

All footage, edited or un-edited.

Left over film stock regardless of whether it is raw stock or short-ends.

All sets and props, (unless they were rented), etc.

Basically, the Client owns everything that they have paid for. We have always turned over every frame of film that was exposed, regardless of whether it was requested or not. They own all of it.

They have the right to cut or re-cut the footage that you have provided to them regardless of whether they use you or someone else to obtain a finished product.

99.9% of all the commercials I have been on have been story boarded. This means that, other than a few alternate shots, there is really not much more raw footage to choose from.

Anyway, if they choose to re-cut the existing footage into different versions of the same spot, it is their prerogative.

The only things that change are the contractual agreements with regards to Talent depending on their Union affiliations and/or original contracts.

They pay for your talent, time and materials...basically, they are paying for your services. Any materials that are bought or produced during this time belongs to the Client unless other agreements have been reached before hand.

I know that this sucks, but the bottom line is that he who owns the ball can make up the rules to the game!

RB

Rick, I think your statements above gets back to my original answer. In Ohio (where I'm originally from) your scenario above would have been the exception, rather than the rule. It was usual and customary for the production company to retain all rights and materials, not the client. My original advice remains, contact an attorney familiar with your states work for hire laws.

Rick --

Let me give you an even more simplified chain of command:

1) Owner or Manager of local business

2) Me


I'm sure that in your example, the cameraman alone got paid more than I get paid for producing a commercial all by myself!

Seriously, though, I don't mean to discount your point. I like reading real-world accounts of professional productions. I'm sure that in examples such as yours and Don's that there is a contract specifically stating that all materials are getting handed over. I'm also sure that everyone is getting their fair share of the pie.

I do think that your comment "he who owns the ball can make up the rules to the game" simplifies things a little too much. In my case, I'd say *I* own the ball -- ain't nobody else going to produce this person's ad for $300 or as quickly as I can. And I don't want to stray from discussing video, but let me use an example from my wedding: We paid the caterer to cook food for X amount of people. Well, less-than-X amount showed up, and I know that much more food was made than was eaten. Did we get to take all that food home with us, since we paid for the catering? Heck no. My wife and I each got a small take-home dinner and the caterer probably sold the leftovers in her restaurant the next day. A very tangential remark? Comparing apples to oranges? Sure, but it sort of shows that just because a client pays for something doesn't mean they get more than the final product...

I guess that my main question (whether or not I posted it coherently) has been answered -- is it reasonable for me to present a contract to a local business owner which states that I keep all raw footage (and possibly sell it to him/her for a small fee)? Basically, can I do this w/out looking like a jerk?

While examples such as yours and Don's show that it is not true across the board, I still get the feeling from the anecdotal and legal examples here that it is *not* unreasonable to present such a contract. And I assume that any such contract would hold power ahead of any work for hire laws such as Jeff mentioned.

Chances are that I might never encounter this problem. Some clients probably wouldn't even know what a miniDV tape was if they saw it. But I do feel like I need to cover my bases. Personally, I think it's reasonable to charge $300 for a final :30 commercial (that they can do whatever they want to with), but ask for an additional fee if they want the raw footage.

Now that it's on my mind -- let's look at this example: Let's say I use a piece of music in an ad from a royalty-free music collection that I have purchased. When I purchased the collection, I paid for a license which allowed me, and *only* me, to use said music in any commercial production (movie, ad, TV show, whatever). Just because I use that music in a client's ad doesn't give them free use of it -- they do not now have a license to use that music, and they certainly couldn't ask for the original music to use in future spots, correct? If they wanted original music, I'd give them the names of two people I know and they would work out an agreement of their own.

Anyway, I'm probably just thinking myself in circles by now! Thanks to everybody for your input and advice. And unless anyone can give me a very solid reason not to, all of my future contracts will include a clause about my retention of raw footage.

Apples and Oranges? Maybe.
 

I can only go by personal experience. The commercials that I am writing about are all film shoots done by large production companies. I have worked on many spots that have been re-cut, sometimes years later, by another company without the participation or input of the original production company, or director/editor. The latest is a spot for a Jai-Alai fronton that I worked on about 7 years ago. Last week I saw the same spot, revised with different cuts and supers on local TV. The original producers of the spot had no idea that it was airing at all.

$300 for a finished 30? That's not reasonable , that's a giveaway! Are you talking about $300 to cover pre-pro, prod, and post, including materials and camera/audio rental? Damn!

As far as the wedding planner example goes...while I get the jist of what you are trying to convey, I don't think that pitting perishables against intellectual property is quite a fair argument. Your caterer needs to buy enough supplies, (money out-of pocket), for the projected meals just as you have to buy stock for your projected shoot. If I tell my client that I need to buy 50 Mini-DV tapes for his/her shoot, include it in the budget and only end up using 10 tapes, I would fully expect to hand over the remaining 40 tapes to the client. I pesonally do not see shots that are in the can, but not used in the finished spot as "more than the final product".

If you had asked the caterer to give you the balance of your wedding meals, I think that the caterer would have had little recourse besides giving you the meals back, although I doubt that you would want to deal with XXX servings of what I call "wedding chicken" during your honeymoon! As the client, you should get what you pay for. If you paid for 100 meals, you are entitled to 100 meals. That doesn't necessarily mean that you will demand them. You did the right thing. It is probably looked at as a "tip" in the catering world, something that I pretty much know nothing about.

In the real world, just as you didn't take the overage from your wedding meals home with you, most clients would not have a use for excess, raw materials, good news for you...score!

As far as the music goes...no, there is no gray area here, it is not yours to give. You have your agreement with the licensing company...period. Like you said, if they like it enough to want to use it in future endeavors then they must work out their own licensing agreement with the holders of the copyright.

You may want to include the "raw footage" or what I now affectionately refer to as the "excess chicken" clause in your contract so that everyone is on the same page if the issue of a re-cut comes up, and for crying out loud...you need to change your rate card!!! It seems that you are seriously underselling yourself!

Jeff may have a point with regards to local laws, etc., something to look into.

Again, and for what it's worth, I am only piping in with personal experience.

RB

Rick--

Thanks for your input -- real-world experience is always helpful to hear. Yeah, I think there were some misfiring synapses in my head while trying to come up with come examples of "getting what you paid for." The "excess chicken" and "royalty-free music" examples weren't really very good... But I think you got the general idea of what I was trying to say (by the way, I think that it was actually part of our contract that the caterer kept everything that wasn't consumed -- regardless of how many people showed up. Whatever keeps the wife happy.)

But yeah, I think future contracts will specifically state that the business is paying for *just* the final ad. They can re-edit and change it however they like (a good bit of my own work is tagging pre-existing ads produced by someone else with updated sale/address/logo/etc information). If they would like to have the raw footage, then they can purchase the rights to use it in perpetuity for $200, perhaps.

As for the $300 production cost: yes, that's for everything. I won't go back into it, but my last two posts on page 1 of this thread and my first post on page 2 pretty much explain my situation -- what I do and why I charge my prices. If you see some of the examples on my website, you might reconsider saying that I'm underselling myself! For just $300 more than what I charge, a local business can get a really well-done ad produced by a very experienced production team.

And how's Miami nowadays? I used to live there in my youth, and while I can't say I miss living there, it certainly was an interesting place to be. I'm sure that working with the MDPD must be pretty d*mn crazy...

Mo $$$!
 

John,

That's some very nice work and worth more than $300!

Miami is still Miami, what can I say? This would be a wonderful place to live if you could just re-populate the joint and start over.

As far as the MDPD is concerned, the best move I ever made was the jump from what people in the Department call the "real world" to what I do for a living now! Everyone always asks me when I am going to leave the County and go to the "real world". My response is...I came from the real world and am much happier here!

There is never a dull moment. We get to shoot some of the coolest stuff in the world, utilizing some of the coolest stuff in the world and lo and behold, the County pays for all of our toys!!!

I have no regrets about leaving, "the real world".

P.S. Keeping the wife happy is probably the most important thing you can do...until you have daughters, that is. Then you are completely on your own.

Regards, RB.