Footage Ownership Situation

W

wigglefarm

New member
Hi, I have a situation. I have been getting paid to film for a company for the past 3 years. I was paid as an independent contractor and have never signed a contract giving rights or ownership to the company or any other contracts what so ever. Now that I don't work for them they are demanding for my footage and claiming that they own the rights to it. What should I do ? Does anyone have any articles that could help me? As far as I know I am the owner of all of my footage and I was being paid for my time.
 
You should talk to a lawyer about this, rather than relying on anonymous advice on a forum. Just out of curiosity, though, when you say you were filming and being paid only for your time, what did the company paying you get for its money?
 
Are you sure you didn't sign a work for hire agreement? That's the common one. More importantly, why don't you want to give them the footage? Does it do you any good for them not to get what they technically paid for, even if there was no contract saying they'd get it?
 
They were not "just paying for your time". That's ludicrous. You were being hired as an independant contractor on a work for hire basis to shoot video "for them", not for yourself.

Go check with an intellectual property lawyer. The second money changes hands there is a contract.

Send them a copy and keep a copy for yourself for marketing, which you do have a right to do.
 
Work for hire, they own the content. Save yourself the trouble and hand over the content and just keep a copy for your reel, etc.
 
Chris Santucci said:
Yeah, sounds to me like they DO own the footage. Anytime someone pays you to shoot, they own the footage.

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Not quite true. The person writing the cheque only automatically owns the copyright when the person creating the work is a bona fide employee. The mere act of being paid for a piece of work in-and-of itself is not sufficient to create an employer/employee relationship, other conditions also have to be met. To be an employee, the person doing the work needs to be paid W-2 wages that are subject to payroll taxes and withholding, acts under the direction and supervision of the employer, etc. Unless the shooter is an actual employee, as defined by the IRS, of the person who is paying, or he is working under a written agreement than spells out explicitly that the work being created is a "work for hire" and uses those exact words, the shooter retains the copyright to the work he has created. A camera operator in a TV news crew does not own the copyright to the footage he shoots because he is an employee of the station. But without a written contract to the contrary, an event videographer does own the copyright to the footage he shoots because he is not his client's employee. Whether he can do anything with that footage on his own is another matter, but the client does not own it even though he has paid to have it made.

That being said, even though the OP probably retains the copyright he still can't do much with the footage without releases from his client so he might as well turn it over to them and transfer copyright anyway. Unless they still owe him money I don't see the point in hanging on to it and a reputation for being "difficult" is usually not a good thing for an independent.
 
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That's not exactly correct. When services are purchased, a product usally is as well. If services, freelence included, include shooting, it is understood the footage is what is being purchased, not the hours a dude spends aquiring the product being purchased. This does not have to be a lagal matter. It should be a matter of maintaining a good relationship. In this case, it would mean giving them their tapes. In today's crumbling economy, burning bridges will serve noone well.
 
MichaelP said:
If it is considered a "work for hire" then the person paying owns the content.
http://en.wikipedia.org/wiki/Work_for_hire

Negotiations can certainly be made beforehand as to licensing back for demo reels, etc. which should be done before any of this type of work is done.

Michael
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Works Made for Hire. -- (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. (17 U.S.C. sec 101)

True, but note the words "... employee, within the scope of his or her employment..." or "...if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire." That's why he must either be an employee as defined by the IRS or they must have a written contract. Simply being paid doesn't fulfill either requirement. Absent one of the two conditions spelled out in the statute being in effect, it is not a work for hire even though the person doing the work has been paid. And if it's not a work for hire, the creator of the video (or other copyrightable work) owns the copyright, not his client. The client has commissioned the work and paid for it, but unless the condition of having a written agreement is in effect, he does not own the copyright.
 
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Just going out on a limb here, I personally don't think you should waste your time with all the legalities, just do the right thing and give them thier footage. They gave you a pay check for 3 years, I'd be greatful for that.

Beleive it or not it is possible to part ways and have integrity, it goes a long way in the future for referals and opens other doors.

I know it dosen't matter what the content is but now I'm curious.

What type of content is it?
 
Steve House said:
Not quite true. The person writing the cheque only automatically owns the copyright when the person creating the work is a bona fide employee. The mere act of being paid for a piece of work in-and-of itself is not sufficient to create an employer/employee relationship, other conditions also have to be met.
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Maybe it's different in Canada, but my experience in the advertising realm with regard to advertising agencies is that their client (the end user) owns the footage. Period.

Production companies are rarely bona fide employees of ad agencies or companies they might produce work for. I've never ever been an employee as a shooter and everyone else I know that shoots as a freelancer never ends up with the right to re-sell footage they were paid to shoot.

You get paid to shoot - the payer owns the footage.

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Chris Santucci said:
Maybe it's different in Canada, but my experience in the advertising realm with regard to advertising agencies is that their client (the end user) owns the footage. Period.

Production companies are rarely bona fide employees of ad agencies or companies they might produce work for. I've never ever been an employee as a shooter and everyone else I know that shoots as a freelancer never ends up with the right to re-sell footage they were paid to shoot.

You get paid to shoot - the payer owns the footage.

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The default position in the copyright law is that a: copyright is created at the moment a copyrightable work is fixed in a tangible form; and b: the copyright is owned by the actual creator of the work. It doesn't distinguish whether the creator is working on his own initiative or working at someone else's request, not does it mention payment. The law also spells out the conditions under which the default does not apply. One condition is when the work is done by a bona fide employee acting within the scope of his regular employment; in that case the employer is legally the "creator" since the employee is acting as his agent. The other is when a written agreement transfers the copyright from the freelancer to the client as a work made for hire. The kicker is the explicit requirement in the law that any transfer of copyright must be in writing - if there's no written agreement, it isn't a work for hire even if the freelancer is paid.

It would be a rare ad agency that would not have a written agreement with their client and that agreement should spell out exactly who owns the rights to the end product. Whether a freelancer has the right to resell the footage is another issue entirely. You can certainly own the rights to the footage and yet still not be able to resell it to a third party. The real issue with the shooter retaining copyright is not whether the client can use the work or whether the shooter can resell it, but rather whether the CLIENT has the right to resell it, perhaps even in competition with the original freelancer's business. Let's say, for example, you shot an ad for Grandma's SodaPop and after the project is done, there are some good looking, usable, generic outtakes left over. Those outtakes would fit perfectly into an new ad in the works for Wally's Widgets, whose owner just happens to play golf with Grandma's owner. Meanwhile you're bidding on that ad for Wally's yourself. Should Grandma's be able sell those outtakes to Wally's instead of Wally's hiring you to shoot new footage? If Grandma's owns the copyright on the footage they can. If the freelancer retains the copyright they cannot, even though Grandma's is still entitled to use it themselves for whatever purpose they paid to have it shot in the first place. You don't find yourself in the position of having your own work offered to your clients by an older client in competition with their hiring you to do new work. When an ad agency hires an adverstising photographer to shoot stills of a product or a magazine hires a photographer for an editorial shoot, what they get in exchange for their money is an exclusive license to use the resulting images, sometimes for a limited time and/or in a specific geographic area, but the photographer normally retains the actual copyright on them. For the same reason wedding photographers similarly retain copyright on the pictures they shoot and usually will not turn over the negatives or digital files to the client - they want to insure they get future print sales if any instead of the client themselves taking the negs to Costco for additional prints and cutting the photographer out of additional sales.
 
Steve House said:
When an ad agency hires an adverstising photographer to shoot stills of a product or a magazine hires a photographer for an editorial shoot, what they get in exchange for their money is an exclusive license to use the resulting images, sometimes for a limited time and/or in a specific geographic area, but the photographer normally retains the actual copyright on them. For the same reason wedding photographers similarly retain copyright on the pictures they shoot and usually will not turn over the negatives or digital files to the client - they want to insure they get future print sales if any instead of the client themselves taking the negs to Costco for additional prints and cutting the photographer out of additional sales.
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Photographers have an entirely different deal with regard to billing and ownership. They bill for specific usage (or should be), while film/video shooters bill for time. I've never heard of a film/video shooter billing for specific usage. You know why? Because the client owns the footage.

The still photographer billing scheme I'm afraid is most likely going to change especially since more and more clients refuse to pay for usage and/or are using royalty free stock images.

I've never heard of a film/video shooter trying to bill a client for limited usage and I can't imagine that going over too well with most clients.

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Chris Santucci said:
Photographers have an entirely different deal with regard to billing and ownership. They bill for specific usage (or should be), while film/video shooters bill for time. I've never heard of a film/video shooter billing for specific usage. You know why? Because the client owns the footage.

The still photographer billing scheme I'm afraid is most likely going to change especially since more and more clients refuse to pay for usage and/or are using royalty free stock images.

I've never heard of a film/video shooter trying to bill a client for limited usage and I can't imagine that going over too well with most clients.

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If your client has hired you to operate a camera and you turn over the raw footage at the end of the day, being paid by the hour, you may have a case. Certainly if you're the camera operator on a feature or commercial shoot, the freelancer is an employee of the production company and is not the legal creator of the work being produced. But if you're hired by XYZ Corporation as a production company (even one consisting of just yourself as a one-man band) to create, shoot, edit, and fully produce a series of complete, ready-to-air, 60 second commercials and you charge them a flat fee of $XXX for the service, you're not billing by the hour, you're not their employee, and you own the copyright to the resulting commercials and the raw footage that they're made from unless you transfer copyright to the client in writing.

On your shoots, are you usually an above the line creative or a below the line technician? A camera opertor is below the line and is making a work for hire, a DP straddles it, usually below the line but sometimes above depending on his contract and role, but a sole operator videographer who produces finished programs for his client is a producer, solidly above the line, and is the creator of a copyrightable work. As such he owns copyright until he transfers it. I'd agree that most contracts would include the provision to transfer copyright to the client or make it a work for hire, and such contracts are the industry norm. But the essential point is that UNLESS there is a WRITTEN agreement, and the OP said he did not have one, the copyright remains with the producer, not the client and it is not a work-for-hire. For your position to be true, there MUST be a WRITTEN contract explicitly making it so.
 
The production industry is VERY lax about this issue, and that leads to complications when client relations turn sour. All I can say is that the law is VERY clear about work for hire relationships. It is ONLY work for hire, if there is a contract signed that indicates it IS work for hire. Without that contract, they have no right to your footage.

Check this out:

No Contract Gives Video Production Company Control of Walmart’s Videos:
http://www.wvbusinesslitigationblog...production-company-control-of-walmart-videos/
 
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