An Ethical Question: Your Opinion?

[Scott F]

I'd just like some opinions from the production community on a situation I'm dealing with.

For years I've done TV spots for a local restaurant. Recently they've expanded locations and are doing quite well. Earlier this year, their new marketing guy requested several still images from the commercials I shot. I think they said they would be used on their website. At the time I thought nothing of it. They are a good client and I figured a shot or two is no big deal.

But now, I'm seeing my images all over their marketing material. Facebook fan page, menus, flyers, even a billboard. It's pretty cool seeing one of your images on a billboard….except I never got paid for the use of it that way. rogar-Sick(DBG): Keep in mind these weren't still images, they are video grabs from styled food shoots that I did. The restaurant has never hired a photographer to get stills, that is why they called on me for material.

So do you think I'm overreacting by being upset? At first I figured these guys were small potatoes and I certainly don't want to blow a good gig. But by all accounts they are raking in the dough.

I don't know. That's why I'm asking you. :undecided Is there a nice way I can explain to these guys what they are doing is wrong? Or are they wrong to use these images as they see fit?

 

[Gregg Juke]

It depends on what kind of agreement you signed (if any). If it was a "Work for Hire," that is legalise for "They own everything."
Otherwise, it's really your material, and you should get paid for separate uses. In the absence of an upfront agreement stating all possible uses and remuneration, you are stuck with renegotiating (which would have been better/easier before you handed over the stills/screen grabs). It is obvious (assuming no work-for-hire) that they owe you more money, the question now is, how far do you pursue it, in light of your on-going relationship with this company. If you're never going to shoot another commercial for them, you may want to push to get all that's coming to you (up to and including a lawsuit). If you are expecting more work from them, you have to be more delicate, and your options range from strong suggestion to ignoring it completely and chalking it up to "lessons learned" and "one-for-the-resume."

GJ

 

[Steve House]

Perhaps people reading this will now see why this issue of who owns the copyright on a piece of video after it's been shot is so important. Unless your shoot was legally a work-for-hire, as Gregg mentions, you would normally own the copyright and you certainly should have been paid for this additional usage of your material. BUT when you turned the images over to them without an accompaning delivery memo or invoice spelling out the limitations on their usage, it could be interpreted that you gave your client permission to go ahead and use them wherever they wanted. In other words, if you fail to exercise your rights, you lose 'em. If this is a good client you might want to let this one slide but let them know that in the future they'll need to license your images for an additional fee if the want to use them for things beyond what was contemplated in the original video contract.

A video grab is a still image like any other, just one the has been selected from lots and lots of similar still images <grin>.

 

[Chris Santucci]

I'll never understand the concept of "owning" footage you shoot for a paying client.

Still images - that's something I understand, and photography is a whole different ballgame when it comes to billing since it's generally based on usage, not time and you should get paid for still images not based on what they already paid you but yeah, based on usage.

I'd approach them and politely tell them how things are done in the industry and ask them what they think of all that.

 

[ZazaCast]

Explain the situation and how you'd like to handle it on future shoots....then get free food at the resturant for the next year to cover the difference!
(I had a great barter deal going with a local high-end jazz club/gourmet restaurant. Best deal of my life, I ate there almost every night for a few years while enjoying some of the all-time jazz greats)

 

[Scott F]

Zaza, your slider was used in all the shots, so somehow you're involved in this as well!

All kidding aside, thanks for the responses. I was and still am looking for varied opinions on the matter. If this was really a high-stakes client, I *suppose* I would have prepared some kind of document before emailing off the pictures.

Lesson learned going forward....I will draw up some kind of contract or proposal. LOL, this will not come down to a lawsuit, just chalking this up as "one-for-the-resume." I'm going with the free food option and a year sounds about right.

 

[ZazaCast]

... send me some wings! rogar-Happy(DBG):

 

[Steve House]

I'll never understand the concept of "owning" footage you shoot for a paying client.

...

It depends on whether you view the videographer as a technician hired for an hourly wage to operate a certain piece of equipment under the client's direction or as a creative professional paid a fee by the client to author a custom piece of intellectual property that meets his particular needs. Is the end product "footage" or is it "program?"

It's really quite simple. Under copyright law, the person who creates a piece of intellectual property has the sole right to publish the work and reap the rewards for his labours. If you are a bona fide employee - acting within the scope of regular job duties, being paid a wage or salary (in contrast to a professional fee), working under the employer's direction and supervision, firable at will, subject to tax withholding, etc, - the employer is legally the creator of the output of that work and owns the copyright to it. But an independent contractor contracted to a client to deliver a particular end result is not an employee, he is a vendor of a product, in the case of a completed video production the product being a license to use a "made to order" piece of customized intellectual property. He's not selling the client his time, he's selling the use of the intellectual property end result. As such, he, not the client, owns the copyright to any intellectual property he creates. He may choose to subsequently sell those copyrights to the client but by law initially they are his to sell or license.

You said still photography is different from video because it is based on usage, but that's not time. If by video you mean a camera operator who shoots for X hours at $Y per hour and turns over the raw video to his client at the end of the shoot you might be right. But what about the independent videographer that has bid a fixed price contract for a particular program, ie, contracted to write and produce a 15 minute training program for his client on New Breathroughs in Widget Waxing for a fee of $8000. He's not being paid on the basis of time, the client doesn't care if it takes 10 man-hours to produce that program or 1000, he's going to pay the same fixed fee. The client isn't the creator of the content, the videographer is. Just like the fee of a still photographer contracted to shoot a local print ad, that fee for the video is based on a certain usage and exposure, ie, an internal training program in thiz case. Just like with stills, other uses beyond the scope of the initial contract legitimately should give rise to additional fees.