Former Client Using Video w/o Premission
 

I live in Oregon, and I made a video for a former client. That client has had the video re-editied by someone else and used in another production. Do I have any recourse, as I did not relinquish my rights to the video?

Thanks, in advance.

Re: Former Client Using Video w/o Premission
 

Absolutely naff' all you can do about it.

Did you have a signed contract saying you have exclusive rights to all material filmed?

Re: Former Client Using Video w/o Premission
 

I did not sign a letter retaining my rights. In the U.S., my belief is that you actually have to sign your rights away. Ownership is assumed unless signed away. That's what I've heard, anyway.

Re: Former Client Using Video w/o Premission
 

No legal advice here, but did he pay you for the footage?

Re: Former Client Using Video w/o Premission
 

They paid for the original production. (Don't think I broke even in the deal.) Just did it in the hope of future work - which they gave to someone else.

Re: Former Client Using Video w/o Premission
 

As James says it depends on whether your contract stated that you had exclusive rights to the use of the video. There seem to be extremely varied opinions on a client's rights to video use, but my own views are quite clear on it. If a client asks me to film a production for them then I quote a price for the work, time, equipment and my expertise. Once that production is complete, then I consider that as I have been paid for my work, that it now belongs to the client and they can do what they wan wih it.

If on the other hand, I have produced a finished product at my own expense, and someone wishes to use it, then there would be a contract for payment on the type of useage, as I would own the rights to the work. For repeat use, such as broadcast etc, I would expect royalties to an industry standard level.

As an analogy, if I pay a builder to build a house for me, once completed, I expect to have full rights to do as I wish with it. If he builds a house for me to rent, it would still be his and I would only have rights that we have agreed between us.

Others may well have different opinions :-)

Roger

Re: Former Client Using Video w/o Premission
 

Lesson learnt i'd say ...

They paid you to carry out some work so as far as they're concerned they have as much rights to using it any way they seem fit like yourself.

I would write a contract saying the work you produce can't be modified in any way what so ever unless you give written consent or its a breach of copyright.

You can pull out the same line now if you want too ... however as a lawyer would say ... "how much money do you have, to be right?" either way you'll have to contact a lawyer to take it further.

Just write a polite email saying they aren't allowed to use your work like that. If they're worried and concerned about the law, they might stop.

Re: Former Client Using Video w/o Premission
 

Did you have a contract with the client? If so what rights did you grant in the contract?

Re: Former Client Using Video w/o Premission
 

They put the work on Youtube, so, I was just thinking of giving it a copyright flag.

Re: Former Client Using Video w/o Premission
 

There was no contract.

Re: Former Client Using Video w/o Premission
 

why do people speculate on things that are available free from the official sources?

U.S. Copyright Office - Copyright Law: Chapter 2

first paragraph,.

unless you have a contract that states it was a work for hire, you have original rights to the property. the only real question is what do you really expect to get out of making a stink out of it?

Re: Former Client Using Video w/o Premission
 

As I told them, I wanted a fee for use of the video in this new production. I'm looking for them to remove the elements I created - unless they're willing to compensate me for their use.

Re: Former Client Using Video w/o Premission
 

That's not what it says actually:

In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.

The employer (the person who paid the shooter) is considered the "author", and owns the copyright.

Re: Former Client Using Video w/o Premission
 

Kenn,
I am not a lawyer and even if I was I would not give you legal advise on the internet BUT I can tell you that I was once in a similar situation and here's is what MY lawyer told ME. "You %^&!!@#@@@$$%%$%&()_+_+&^%$#@!!@#$%%^^&^&&" FOOL! How many times do I have to tell you that WITHOUT a contract or SERVICE AGREEMENT you have no claim to ANYTHING."
Now this was my lawyer talking to ME and I'm sure you can imagine that he explained to me in no uncertain terms that a verbal contract isn't worth the paper it's written on so here are a few things that my attorney told me to consider before pursuing any further action. (in no particular order of importance)...

1) What do I expect to accomplish by taking further action of any kind?
2) Would it be worth the hassle?
3) Would I be harming my reputation?
4) Would it stand up in court?
5) Can I prove to a legal certainty that I did the work?
6) Can I prove to a legal certainty that I am now or have been harmed by the former client posting the work on the internet?

Again I am not a lawyer but I believe these are some of the things you might want to consider before moving ahead with any type of action.

Just sayin'!

Re: Former Client Using Video w/o Premission
 

I am a lawyer, although intellectual property rights is not my field As a lawyer, the first thing I would do is have you sign an agreement that says I will research the issues of your case with. That agreement would set out the terms of my employment, hourly rate, and so forth. Then I'd say " Please pay me a retainer." before I start.

Second thing is that oral contracts, unless they violate the statute of frauds, are as binding as written contracts. So don't let anyone tell you they aren't. The issue with oral contracts is always a matter of proving up the agreement. One of the best ways to prove up an oral contract, is to confirm the oral agreement by simply memorializing to in writing to the other party, indicating that is how you have agreed to work. That would act as convincing evidence of the agreement of the parties.

First things that I would look at as a lawyer is the law of the state in which the project was performed. There could be statutes specifically on point, as well as case law interpreting the statute. That failing, there is always a body of "common law" that covers most contract situations.

I have seen people indicate on this site and others that the video, unless otherwise stated in writing, is the property of the shooter. While that may be a general rule in many jurisdiction, your particular state or area may have a statute that states otherwise, or a case law that interprets a general rule. There are always exceptions to general rules, and as lawyers, we are taught to ferret those out.

When I actually shoot for another party and I turn over the raw footage to them, I assume they are receiving it with all rights in return for whatever compensation I got. If I want to protect any rights, like using it for my own puposes, I will get that in writing.

Re: Former Client Using Video w/o Premission
 

Worth a read:

Help! I Found an Infringement! Now What Do I Do? | NatureScapes.Net – The Resource for Nature Photographers

Registration Counts | American Society of Media Photographers

Re: Former Client Using Video w/o Premission
 

It's an interesting read if you have put your own work online and someone has copied and re-used it, but I'm not sure that it would be relevant to the situation that the OP was describing.

I think there must be a definite legal distinction between straight stealing of someone else's work, compared to a client who has paid for a finished product and then chooses to use it differently. That must be down to a clear contract and if you don't have one, it is open to all sorts of misunderstanding.

Roger

Re: Former Client Using Video w/o Premission
 

This is probably in the category of "tough love" but so be it.

Stop wasting your time on this.

You got asked to make a video for someone. Great. You delivered. Also great. You got paid. BEYOND great.

Now move on.

Trying to squeeze more cash from the party who commissioned the video in the first place for "extra use" will be seen by many in business as bush league UNLESS you specifically agreed in writing that you were withholding re-use rights. That's just the cold, hard, truth. Usage rights are "inside baseball" to 99% of clients below the video production major leagues. There's no reason they would even think that they don't have full rights to use what they "bought" from you. And if you try to "educate" them about it, they'll just mark you down as someone who's trying to wheedle more money out of them for the same work and they'll holler about it to everyone they know.

Sure, "technically" you might well have all the "legal" rights as the works creator. What I'm telling you is NOT to pursue this. You'll simply brand yourself as someone who's "difficult" to work with and who makes problems for their clients.

You have the ability to make more - and better video - than the one that's already done.

So spend your time and effort finding the NEXT client and doing even a better job for them. If you get to be REALLY good - then you can start writing new contracts that involve additional usage rights and start defending your technical rights.

But don't do that now. Building a reputation as a producer who comes back after the fact to leverage more profit from a completed project will probably hurt your reputation far more than the value of what you can squeeze out of that client going forward.

It's your call, but that's my 2 cents.

Take it or leave it.

Re: Former Client Using Video w/o Premission
 

Condescending much?

I was not "asked" to produce the video - it was made on spec . I built the miniature set for the products (even buying the products, myself) for the demo.

And, if you read what I said earlier: I wanted them only to remove the portion, which I did not give permission to use - that would have been my first and, hopefully, only request - if they want to pay to keep it in there - that's their call.

Re: Former Client Using Video w/o Premission
 

You created this on spec and then gave them a copy for money.
Do you have anything to prove any of this?
Do you have the money to go to court?
Do you think you will receive more money than you spend on legal counsel?
Do you have material proof that the financial transaction took place such as copy of canceled check?
Do you have material proof that you were the content creator?
Do you have recorded masters and original material and files?
Do you have material proof that you paid to produce this spec piece?
Did you save any communications with them such as emails, letters, recorded phone calls?
Have you distributed the material independently and preceding their public use?
Have they previously used the material publicly you gave them in its original form?

Re: Former Client Using Video w/o Premission
 

I'd add:

Did you register your copyright?

Re: Former Client Using Video w/o Premission
 

Condescending? Quite likely a bit. But maybe I've earned a little bit of a condescending tone by delivering more than 500 paid videos over 25 plus years of professional production. Look, I too screwed up in my early days too by "thinking" I knew better than others about how things should work. When they didn't, I took my lumps. Learned my lessons. And eventually grew to understand that nobody cared even a tiny bit about protecting me from my own lack of experience of unfamiliarity with how things actually do work - compared to how I might have thought it was "fair" for them to work. I'm trying to pass that lesson on to you so you don't have to waste your time like I did. But if you think differently or don't want the advice, fine.

I'm telling you that in my experience, the best thing you can do is NOT waste time trying to squeeze more money out of this. If you want to do differently - feel absolutely free to take your own council on this.

Spend your time becomeing the biggest thorn you can in the side of your former client/partners/whatever. Maybe that will work for you. Maybe they won't resent it. Or bad mouth you. Nobody knows about any of that.

We just know what you told us. And some of us know what WE learned when we were in the same place in our careers.

Listen or not. Learn or not. Do it your own way. In the final analysis it's your career and you are absolutely empowered to steer it as you like.

I'm just one voice. Listen to someone else if you like. Or to your own opinions Free country.

Good luck.

Re: Former Client Using Video w/o Premission
 

I agree with Bill.

Also, and it seems tangental, but it's not - this all goes back to my #1 rule, which is "don't do work on spec".

Also, if you think Bill is condescending, you should be glad he answered first and not I, because I would have been more blunt.

Re: Former Client Using Video w/o Premission
 

That was a good read. I realize this isn't the OP's situation but thought others might be interested. I spent most of last week searching over 500 youtube and vimeo videos that used some of my footage w/o permission. It resulted in me filing 36 DMCA Take-Down Notices on Youtube and 16 on Vimeo. I must say both sites were very responsive and closed 6 accounts, removing all their hundreds of videos. The guilty culprits were not happy and offered to purchase the footage but I refused because I don't do business with folks that steal from me.

Re: Former Client Using Video w/o Premission
 

Good for you. Most people are ignorant of what registration affords them and those who steal creative works know that and take advantage of it.

Re: Former Client Using Video w/o Premission
 

It may not be what the original poster wants to hear, but I'm afraid that's a very good analogy.

Yes, it all depends on the contract, and if that says the person who did the work retains the copyright it's a different matter. An example of that may be if you have a photo portrait done and it's explicit that the photographer retains the copyright. All you then have rights to are the prints you've paid for - you have no right to make other copies.

But that type of agreement is probably becoming less acceptable now with all the uses to which media can be put to. Clients are increasingly looking to have full rights over material they commission - it's as Roger says, if asked to do a commission, you quote a price and the clients expectation is that they are then buying full rights over it. Just like buying a house.

You COULD insist on writing a clause into contracts to keep control - but they then may just go elsewhere. Or at the very least argue that if you're keeping control, you lower the price.