If I produce a video, should the production company be able to show it?
 

If i produce a video, as in get the job, edit the video, decide what shots/set up the shots, but use a production company's camera and camera guy. should they be able to display the final product on there website?


I'm thinking no, only because it could look like they did everything. what should I do?

I would say that YOU are the production company, you have just hired a Cameraman to shoot YOUR job, now, they can show the video to showcase their cameraman's ability (with your permission) BUT they must credit you as the producer/production company.

With your permission and credited, of course. If they're not willing to follow what I would consider common courtesy, might look for another camera guy.

I'd at least mention that you'd like credit.

Sounds like you are the creator of the work and thus would own the copyright. Anyone, including the company that provided the camera, needs your permssion to use it. Of course, if you are an EMPLOYEE of that production company it's a different story and they would own the copyright since you then would have created the video within the scope of your employment.

Whatever weaver says, but if you don't have one - the person who pushes button 'REC' is the creator and all the copyrights holder;
well, at least that's the way it is here in Canada :)
in any case i would recommend you always have a written contract signed by all parties, with everybody’s rights and responsibilities outlined clearly.

Dave, the answers to a couple of basic questions will answer this for you. What does your Release and Waiver Agreement state and what does your Contract with the production company say? These two agreements should state that you are the owner of the all copyrights since it is your idea and you are the author and creator of the project.

If you do not have Release and Waiver Agreements from every crew member working on your project, and a Service Contract with the production company you are using, you are missing some very important documents and I would not proceed with shooting the project until getting those signed documents.

Just my standard operating procedure whether I'm the owner of the project or just a crew member. In either case I make sure I have documented my rights as someone associated with a project.

-Garrett

By that logic his camera operator owns the copyright. But a technician operating a piece of equipment under the direction and supervision of a creator who has decided what to shoot and how to shoot it doesn't gain copyright to the footage produced merely by pushing the button. By your argument the focus puller and the grip pushing the dolly would also have copyright.

Steve, grip person does not operate camera:)
And it’s not my argument, it’s Canadian Copyright Act,
In case you’re not familiar

I am familiar with the Copyright Act and have it on my screen right now. Nowhere in it does it say that a camera operator owns the copyright to a film or video he shoots by virtue of operating the equipment he uses. It does say the copyright is owned by the person that creates the final copyrightable work. The means the person who is responsible for the content of the intellectual property that is being created. In the case of a film or video, that person is the producer and/or director, the person who decides what shots to get, how they are to be framed, and how they are to be assembled into the final program. Only in the case of a videographer / filmmaker who is wearting two hats as both producer and cameraman who happens to be operating the camera as part of the process of creating the program would the camera operator own the copyright. Things are different for a still photographer where the person holding the camera is normally the one doing the creating of the intellectual content of the resulting photograph. But with film and video, the final show is the intellectual content and the person actually pushing the button on the camera may or may not have any responsibility for the content of the show - on a studio shoot, for example, they are technicians who point the camera where they are told to point it, focus on what they told to focus on, and push the button when the director tells them to roll the camera. Their role is more similar to the grips than it is to the director in that their function is to perform the mechanical operation of a piece of equipment and they have no responsibility for the content of the shot.

I do this a lot. Let's think this through:

1. CLIENT pays PRODUCTION COMPANY to make a work-for-hire.
2. PRODUCTION COMPANY then pays FREELANCER to create a work-for-hire in entirety or in part.
3. FREELANCER delivers the content to the PRODUCTION COMPANY.
4. PRODUCTION COMPANY delivers the content to the CLIENT.

Unless specified otherwise, the CLIENT owns the content at all stages. This is why it is called a work-for-hire. You don't have to be an employee for this to apply.

If the PRODUCTION COMPANY works it out with the CLIENT to use some of the work for their portfolio, they have every right to display the work you helped them make. Similarly, if you (FREELANCER) work it out with the PRODUCTION COMPANY to display some of the work in your portfolio, then you have the right to display the work. Until the CLIENT changes their mind. =)

You can also flip this whole scenario. In your case, it sounds like you (ONE MAN PRODUCTION COMPANY) hired the "production company" (really just a freelance organization and rental house) to augment what you were providing the CLIENT. So... they need permission from you, and you would need to get permission from the CLIENT. If there are PERFORMERS (etc) involved, the CLIENT may need to get their permission before giving you permission to give the "production company" permission.

Keep lines of communication open and always arrange for proper credit.

Good luck!

Generally true, except for the very first bullet point and the statement "client owns the content in all stages." Only under specific circumstances does the client ever own the copyright. Ownership of a copyrightable work falls to the author of the work by statute. CLIENT hiring PRODUCTION COMPANY and paying their fee does not automatically make the resulting work a "work-for-hire" on the part of the production company UNLESS the contract specifically spells out in writing that it is. Without the wording of "work made for hire" or words to that effect in the engagement agreement, the production company, NOT the client, owns the copyright to the resulting work since they are the author of the work. What client gets for the fee they have paid is a license to use the resulting intellectual property. As the author of the work, PRODUCTION COMPANY retains ownership of the copyright unless they explicitly transfer it to the client in writing (under the copyright statute, all assignments of copyright MUST be in writing). FREELANCER, OTOH, is not the author since he is working as a temporary employee, subject to tax withholding, etc, of PRODUCTION COMPANY. As an employee, his employer is the legal owner of the work he produces under their direction. It is PRODUCTION COMPANY that controls the content produced and the method of its production. But PRODUCTION COMPANY is NOT an employee of CLIENT even though they collect a fee for the production. Payment of the fee to the production company is not what makes it a work-for-hire but rather the existence of a written instrument that says it IS a work-for-hire. If that contract provision is missing, the client does not own the content.

I don't want to go too far off the subject but there seems to be a very common misconception about means to convey rights with respect to "works made for hire". This is a very important article that should be read:

Work For Hire

I have also seen this very situation played out in legal venues. In short, just writing in an agreement that a work is being made for hire is not sufficient. Most of the work that people are doing that is discussed in these forums cannot convey rights under section 201 (b) which covers ownership of copyrights. Most of the work does not fall under one of the nine required statutory categories for it to be considered commissioned work. A friend of mine was the victim of this mistake and seeing her go through that opened my eyes very wide. I discussed it with a copyright attorney and he confirmed that the Works For Hire provision is intended to be used for a narrowly defined type of work.

The attorney I spoke with made a very good suggestion and the article linked above echoes it. Any agreement you enter into should contain specific copyright assignments, even if it is a work for hire. Don't simply rely on your agreement containing a line that says "this is a work for hire".

Of course this is applicable for US Copyright Law and I don't know if it is the same in Canada.

I've raised this on other discussions regarding copyrights but I think it is important enough, and seems to be a very incorrectly used method of trying to convey copyrights, that it warrants repeating.

-Garrett

AFAIK it's the same here north of the border. The claim was made in one post that the guy who pushes the button on the camera always owns the copyright to the footage shot. Not true - by the discussion on the link you posted the guy who pushes the button may well be making a work-for-hire, if his agreement says he is, since he is making a contribution to a film or audio-visual work. A cameraman employed by a TV station or a freelance camera operator hired by a production company for a specific shoot does not own copyright on the footage he shoots during the course of his employment, for example. In the case of the freelancer, he is operating under the supervision of and at the direction of the production company. But the PRODUCER, ie the production company, does own the copyright to the work since he/they are responsible for the actual intellectual content. Another post implied that the client automatically owns the copyright because he paid to have the video produced. Again, not true. Paying a professional independent contractor's fee in echange for him performing a service does not make the professional an employee of his client simply by virtue of the money changing hands - the other elements of the IRS/CRA definitions of "employee" also enter into consideration. If the contractor is the author of the final work, delivering a completed product that he created for the client to the client, he will own copyright unless the employment agreement states he is creating a work-for-hire and/or he transfers copyright in writing.

I agree which is why I've gone under the assumption that the camera operator could be interpreted by a court as having copyrights over the specific material they produced (i.e specific footage they captured). So, the agreement they have to sign prior to working on the project should contain a "works for hire" clause as well as a release and transfer of all copyrights to be safe. Remember, the law states that in order for the work to become a work for hire, a written agreement between the parties specifying that the work is a work made for hire but be executed.


In the case of the cameraman employed by a TV station, it is apparent that the work automatically becomes a work for hire. But in the case of the freelance camera operator it would not be a work made for hire unless "the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire." (that's a direct quote from the legal text). So, unless their is a written agreed prior to execution of work, the freelance cameraman may own the copyrights. Or, at least there seems to be some room for his claim.

This may be true under some kind of precedence, but the freelance jobs I've gotten working for a producer or production company have made me sign an agreement with a copyright clause, and I do the same when I hire someone to help me on my shoots. Maybe this is redundant but it cannot hurt.

The point I'm trying to convey is that there have been cases where people have gone under the assumption that they own the copyrights under the "works for hire" section and have discovered that they did not, either because the nature of the work did not qualify as a work for hire or they did not even have it in writing. I think the most important thing is to have written agreement of who has what specific rights.

As with all legal "stuff" I make my usual disclaimer, I'm not a lawyer so if you have any questions regarding the law it's usually a worthwhile dollar spent to consult one.

-Garrett

[The thing that complicates this is that just because the production company hiring the camera operator chooses to call him an independent contractor, and just because the freelancer wants to be treated as an independent contractor, that doesn't actually make him one. If he works under the direction and supervision of the employing producer, is answerable to them for the quality of his work, works when, where, and under what conditions that the production company specifys, uses the production company's equipment, is paid based on his time rather than a fixed fee for the product regardless of the time involved, etc he is legally an employee even though the term of his employment is only for the one specific job. His choosing to call himself an independent contractor does not in itself make him one. The production company ought to be witholding taxes, social insurance, unemployment, etc and again, their failure to do that still doesn't suffice to make him a non-employee independent.

Steve, this is where things definitely get muddy at least for me. From what I can gather, "employee" for copyright law refers to the "general common law" definition. I've read through the Copyright Law definitions and cannot fine anything specifically defining Employee. That's something I need to research further (I know it's crazy but this is actually somewhat interesting to me). One thing is clear, getting it in writing seems to be the best thing no matter what.

-Garrett

Absolutely right on about that, getting it in writing. The IRS (and here in The Great White North, the CRA) have about 20 points they use when determining if someone is an employee or an independent contractor and I understand the same criteria have been generally applied to determine is someone is an employee for purposes of copyright ownership as well.

Here's a link to the CRA's guidelines ... RC4110 - Employee or Self-employed?
and some IRS guidelines ... Independent Contractor (Self-Employed) or Employee?

Both raise the issue of control, and I think creative control is a crucial factor in the instant discussion. A camera operator shoots what he's told to shoot by the producer or director, framed the way he's told to frame it, and rolling camera when he is told to roll. He contributes to the technical quality of the shot but he does not control the intellectual content of the shot. He is not an author and has no copyrightable interest. A videographer covering an event on the behalf of a client, OTOH, decides what to shoot and when and how to shoot it and how the various shots are finally assembled into the completed video. He's not a technician merely operating a piece of equipment under someone else's direction - in addition to pushing the buttons on the physical device, he is responsible for the intellectual content of the shot and that of the final work into which the shots are incorporated. He is the author of the final work and as such owns copyright absent a writing that transfers it to the client.

That's the best comment I've seen. In fact, if you use the movie industry, which is now older than the copyright protection age protection - the precedence has been set.

The camera operator exposes the image, the DoP composes the individual shots, the director collects parts of the whole, the editor stiches the product together, and the producer pays for it. Copyright usually belongs to the company who made it al happen and signed the cheques. All the others are effectively working for these companies - and as in almost every employment contract nowadays, anything you create in the course of your employment belongs to the employer. Proper employee or self-employed contractor makes no dfference. You were engaged to fulfil a specific purpose. They pay you, you move on.

Much of my work involves shooting material and then passing it on to others. I rarely get to keep anything, and even if I did, I couldn't do anthing with it - it's not mine!

If you specifically negotiate a contract that does allow you to retain the copyright - that's fine. It's just uncommon, and something not automatic in any way.

The below the line crew on a film set is often paid through a payroll service that becomes their nominal employer for the duration of the project. They report their time to the payroll service, the payroll service processes the time sheets and in turn bills the production company for it and withholds taxes, etc, when the pass it on to the crewmember. As employees they have no copyright interest. The above the line creatives such as the director, DoP, music composer, etc all have contracts that state their work is a work-for-hire so that their copyright interest falls back onto the production company as well.

There is a difference between owning the copyright and being able to exercise that copyright and distribute the material. If you have shot for a client your production may contain proprietary information that needs the client's permission to make public. It would likely be interpreted that the client has purchased an exclusive license to use the material he commissioned you to shoot so you can't resell it to a third party or incorporate segments of it into another production you're working on for another client. Of course you are going to need releases from anyone appearing in the film and any recognizable private locations you shot in before you could distribute it. All these things go into consideration of what you can or can't do with the material you shot. But ownership of the copyright also gives you leverage in terms of what the CLIENT can or can't do with that same material. They can't take something that was shot for broadcast in a local market and run it nationally, for example, thereby cutting you out of the much higher fee you would normally charge to produce a national spot. They can't repurpose your material, taking footage shot for an employee training film and using it in a commercial or selling segments of it as stock footage in competition with your own stock footage business. There is even a difference in owning the physical materials that store the intellectual property and owning the intellectual property itself. If the client purchased the videotape you shot on, he owns the tape itself but as the author of the program, the person who fixed the content into tangible form, you own the content carried on the tape.

You're saying you don't have copyright unless if you "specifically negotate a contract that allows you to retain the copyright." It's actually the other way around. AFAIK the copyright statutes in virtually every country that is signatory to the various international copyright conventions state that the copyright to any copyrightable work automatically falls to the author of that work, the person fixing it into its final tangible form, unless there is a writing that conveys it to someone else. That 'someone else' includes the client who pays to have the work created. There are some exceptions to the general rule, of course. For instance here in Canada the law explicitly states that when a painter or a still photographer is commissioned to make a portrait, the copyright to the resulting image belongs to the person commissioning the work. Works for hire, where the work is created by someone's employee, are an exception since the employer is the author of record in that case. But a producer in business for himseslf to make videos, who is commissioned and paid to make a video on the behalf of a client, is NOT the client's employee. If you produce finished videos, as contrasted to just shooting images and turning over the raw footage to someone else who actually makes the program, why are you so eager to give away your inventory, the only thing of monetary value that your efforts as a videographer actually create?

well, not exactly what i said Steve,
maybe we'reading different documents:)
Canadian Copyright Act, paragraph 13

We are reading the same document. Section 13, Ownership of Copyright, makes no specific mention of cinematic or video works at all. It says in subparagraph 1 "Subject to this Act, the author of a work shall be the first owner of the copyright therein." A camera operator is not the author - he is non-creative "hired help," performing a purely mechanical action under the command of the director or DP. As the person who directs to camera operator where to point the lens, what he is to focus on, and when he is to roll the camera, not to mention perhaps what takes place in front of the camera, it is the director and/or DP that has created the intellectual content of the image - the camera operator has not made any contribution except to assemble the physical vehicle that carries the content. It is the film's director that is the author of the film itself. It would only be in the situation where the camera operator is also the director and DP, he is a filmmaker or videographer instead of a hired camera operator, that he would have copyright. But in that case it is his role as the creator of the content of the image, NOT his function as the physical operator of the piece of equipment that captured the image, that gives him his copyright. Your argument is tantamount to claiming the technican that operates a disk-pressing machine in a CD factory has a copyright interest in the music impressed on the disk.

Further, subparagraph 2 says "Where, in the case of an engraving, photograph or portrait, the plate or other original was ordered by some other person and was made for valuable consideration, and the consideration was paid, in pursuance of that order, in the absence of any agreement to the contrary, the person by whom the plate or other original was ordered shall be the first owner of the copyright." If you want to argue that a film or video image falls under the definition of "photograph," under that provision the person who hires the camera operator own the copyright to the images that are produced. (I would suggest that a film or video is materially different from a photograph and this provision would not apply but that's just my opinion and I'm not a lawyer.)

If I am XYZ Corporation and I contract with you, Joe Videographer, to make a video training people how to wax widgets, you would own the copyright as the author of the video unless our contract stated something different. But if I'm Steve Videographer who has been contracted by XYZ Corp to make that video, and I hire Ms Puller to pull focus on my camera, I own the copyright to the footage and she doesn't have any claim to it. Similarly if I hire you, Joe Camop, to run camera 2 in a multicam setup, I own the copyright to that footage and you have no copyright interest in it, for the same reason my focus-puller doesn't have partial ownership of the footage coming from my camera. Or if I hire you to roam indpendently through the event and shoot B-roll, even though I'm not looking through your viewfinder to actually set up the shots, you are still working under my direction because as author of the film I know what footage I'll need and so I've told you what to shoot. Like the function of the focus-puller, gaffer, or location mixer, the function of the camera operator is important to the final work, but it's not authorship.