Marketing Rights

egproductions

egproductions

Veteran
I produced a video for a client (was sub/sub contracted). I did not know the video's final intent but found out after filming that it was going to be a tutorial that is going to be sold. I was only told after the fact that I can't use it on my website or for marketing purposes. I do my fare share of corporate work so I understand when there is sensitive material, however, my corporate clients make me sign something that prohibits me from publicly showing the work. No such agreement was made with me for this video, however, I was told by my client that they agreed (maybe not in written form) not to use have the video floating around so that anyone can view it without paying. As far as I'm concerned I believe I don't have any obligations to honor this agreement that my client and their client made. It really does hurt me when a perspective client approaches me and I can't show them an updated portfolio of work. I offered to only take an extract to show publicly on my site and will see if they end up being ok with it since it's not giving away the whole thing. My question is not specifically about this case but rather if anyone has run into a similiar situation. I would like to know if it makes sense or is common to charge a fee fo not being able to market a project. Thanks!
 
I'm guessing you don't own the copyright and that you did your job and got paid. If so, it's pretty normal practice, particularly if something is behind a pay wall. You can always send a client a private link that's not on your website - that's what I do as can't show 90% of what I produce.
 
I think its different when you are freelancing v.s when you own a production company and are producing the film for the client. That's essentially what I got hired to do but would be interested in hearing peoples thoughts. I think artists, authors and producers have inherent rights if I'm not mistaken. Either way my master service agreement gives me rights to market the work so me having the rights is not really the issue here. It's more about whether people charge a fee to if a client doesn't allow the work to be marketed in any sense.
 
I do not think you have the right to show the video unless you own the rights to it or were explicitly granted the rights to exhibit it. I'd chalk this up as a life lesson and in the future always check in the beginning if you'll be allowed to use the work as part of your demo reel.

EDIT:
Also, is this worth pissing off your client over?
 
No its not worth getting on anyones bad side over, although people have to realize how it negativley effects producers to not be able to show our work to prospective clients. Either way, I really just want to know if a fee for allowing this is a crazy idea?
 
egproductions said:
I think its different when you are freelancing v.s when you own a production company and are producing the film for the client. That's essentially what I got hired to do but would be interested in hearing peoples thoughts. I think artists, authors and producers have inherent rights if I'm not mistaken. Either way my master service agreement gives me rights to market the work so me having the rights is not really the issue here. It's more about whether people charge a fee to if a client doesn't allow the work to be marketed in any sense.
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I'd suggest asking the company that hired you (let's call them "the middleman") to check with the company that owns the rights (let's call them "the man") if you can use a short clip. They may say yes, they may say no. Then again, it's possible that "the man" doesn't know that the middleman outsourced some of the work. If they did, they might decide to skip "the middleman" next time and go straight to you. No way to know really.

Anyway, "the man" owns the work.

adkimery said:
Also, is this worth pissing off your client over?
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I agree with the sentiment. Don't be like this dog. Don't try to stick it to the man!

dog.jpg

egproductions said:
No its not worth getting on anyones bad side over, although people have to realize how it negativley effects producers to not be able to show our work to prospective clients. Either way, I really just want to know if a fee for allowing this is a crazy idea?
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Not sure I get the fee idea. Next time just have a written contract that states you can use a small excerpt for your own marketing purposes. If they agree, great. If they don't, at least you'll know up front and can factor that into your decision about taking the job.
 
Again, this is something that should be brought up with the client (or your employer) at the onset so that what you assume will happen isn't different than what the client assumes will happen. In your original post you said the work was sub contracted out to you which, to me, sounds like the client had a deal with Production Company X and then Production Company X hired you to do the work. If that's the case then this seems like it was a work for hire (you were employed by Production Company X) and therefore all the work you do belongs to Production Company X, not you. And if Production Company X signed over all the rights to the client then the client owns everything.
 
egproductions said:
I think its different when you are freelancing v.s when you own a production company and are producing the film for the client.
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Actually, it's the other way round. I have more rights as a freelancer than a subcontractor. Anyway, you are barking up the wrong tree with this.
 
egproductions said:
What ever happened to intellectual copyright laws for artists:

http://painting.about.com/cs/artistscopyright/f/copyrightfaq14.htm

What's not to get? The idea of the fee is so that clients that want exclusive copyright ownership of the work can have it. The fee is to offset the lost business I will have for not being able to put it on my website/blog etc.
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Still exists. Just... the work you did was a work for hire. They hired you to shoot something and paid you for your work. That's it. Done. It would have been different if you shot the stuff and then a client came around and asked if they could buy it from you. Then you would own the copyright and could sell it or license it. But here the client already has exclusive copyright ownership in a work for hire.

Now if you want to say to a client, I'll shoot it for you and charge $10 if you let me use a clip, and $20 if you don't, that's certainly your right. But in essence all you would really be doing is charging $20 and then paying them a fee of $10 for the right (license) to use a clip. You wouldn't be buying any ownership in the stuff you shot as a work for hire.

Anyway, in the future it's always best to use a written contract that states specifically who owns what and what rights you have to use footage.
 
egproductions said:
What ever happened to intellectual copyright laws for artists:

http://painting.about.com/cs/artistscopyright/f/copyrightfaq14.htm
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The work is your to do as you please until someone shows a signed by you piece of paper saying that is not the case.

Hell, you can phone them both up and get them to stop using it or even storing it on their computers.

Its your work.

Of course you want to actually take a course of action that doesnt piss anyone off.

There is no reason why they should be concerned with showing a few seconds on your reel.

S
 
egproductions said:
-I produced a video for a client (was sub/sub contracted).

-I was only told after the fact that I can't use it on my website or for marketing purposes.
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I dont get this, you were 'contracted' and then you were 'told'

Either you didnt read the contract, or understand it, or they by telling you something else they were trying to change it afterwards

People cant 'tell' you stuff, your agreement with them was what was in the contract

If no contract was in place the law of the land stands; the original artist owns the work and has all right to it
 
keylight said:
Anyway, in the future it's always best to use a written contract that states specifically who owns what and what rights you have to use footage.
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In the future the client should use a contract.

The OP has total ownership of his material someone can produce a contract saying that is not the case.

S
 
1. Just because he did the work does not mean he automatically has copyright ownership over the work. Two very separate things (at least in terms of U.S. copyright law).

2. You can be an employee and not be staff. Freelancers are employees all the time (if you get a W-2 tax form in the U.S. you are an employee).

3. Work for hire (again, U.S. law) isn't limited to just employees.

Work 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. § 101)
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emphasis mine.

4. Depending on the contract(s) the OP already signed he might have given up his rights the moment he took the job (obviously only the OP knows what he signed).

5. You can use the "Quote ++" button to quote multiple posts in a single response as opposed to, in this case, posting four times to respond to four different quotes.

-Andrew
 
All very interesting stuff. And doubtless correct.

This shows that when you 'work' for people the contract will outline the position.

My suspicion is there was no (written/signed) contract - what is your understanding of the position then?

My understanding that they, the artist, could not be working for someone unless they had signed something and a dispute would default to the position of freelance/original artist.

Of course there may be an e-mail trail that could 'prove' the OP had been hired even if no contract was signed

And most important the OP needs to keep good relations with clients and get 'hired' again

S
 
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Yep, there's information missing from the OP here. Did you sign a contract for the job? If so, then the answer is simple:

If it said that they own the rights to the work then it's theirs and that's that (i.e. may not even be able to claim to have had any part in the creation of the work depending on the contract)
If it said nothing to this effect AND you were not employed by the client, then the creator of the work (the OP) retains certain rights to the work.

Everyone else is right when they say that it's not worth the hassle of burning bridges with the client just to use a sample of this particular project in your reel. Instead, use this as a lesson for future projects:
  • Always get everything in writing
  • Never assume anything
  • Read the contract completely and carefully
  • Negotiate the terms of the contract if you have questions/concerns before you sign anything

That being said, there's no reason you can't charge a higher rate for future work for hire projects. Don't even waste time saying it's a "work for hire fee" or some nonsense. You are the business owner, you set your fee and the client decides to pay (or not). Simple as that.
 
morgan_moore said:
All very interesting stuff. And doubtless correct.

This shows that when you 'work' for people the contract will outline the position.

My suspicion is there was no (written/signed) contract - what is your understanding of the position then?

My understanding that they, the artist, could not be working for someone unless they had signed something and a dispute would default to the position of freelance/original artist.

Of course there may be an e-mail trail that could 'prove' the OP had been hired even if no contract was signed

And most important the OP needs to keep good relations with clients and get 'hired' again

S
Click to expand...

As I understand it (and my understanding is that of a layman), a verbal agreement can be sufficiently binding in the U.S. (though of course that opens up a the gate for a he said/she said problem down the road). If services were rendered and payment was made I think it comes back to does this fall into the "work for hire" category and the line "...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..." makes me think that it does, but I'm not a lawyer.

But, like we've all agreed on, this is something that should've been addressed up front so the discussion is academic. Interesting, but academic.


-Andrew
 
Just to clarify what some of you are asking. There was a contract and I do own the rights to market the video. My question wasn't about this case since I know what my rights are in this case. Even though there was a contract with my direct client, they still came to me and told me that there was a separate agreement made between them and their client and asked me not to put the work on my website (they contracted and told me) I'm going to make them happy and not put it on my website but I know that I have no obligation to do so. In the future I'm going to add a clause to my contract that has a fee if they want to buy me out of my copyright ownership. My pricing comes from somewhere so I want to be able to break it down to a client in a proposal rather than just giving them a price I came up with on my end. Having the fee will also allow me to say "look at your contract" if they decide that they want me to take it down from my website in the future. There's no way of really knowing but I can think of a few instances in the past where I'm pretty certain I lost work because I had NDA's that didn't allow me to show work to potential client's, in my mind this has to be factored in.

Also, I'm not employed by my client. I am self employed. Don't try to argue this point, I'm not going to spend the time debating it, look up the definition of an employee compared to the definition of a contractor or someone who is self-employed.
 
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