Releasing source material

[scarum]

I'm doing a project next week where I'll be filming for 4-5 days on location. I'll be shooting bands performing acoustic sessions at a festival for the festival's website.

The festival's website is part of a broadcasting organization. They have a local unit that organizes the sessions and the shoot. They asked me to film and they wanted me to do it for free. So I agreed reasoning it would be some nice exposure, because the sessions will be available on the broadcasting organization's main website.

Up front we'd discussed the terms of the agreement, this is all a no contract deal, (I know not very smart) but I have a good relationship with the local organizer so I thought everything would work out. We'd discussed that I would provide the edits and the video's for the website. I would keep the source material (and tapes) for my archive. This was fine by him.

Now the broadcasting organization says they want the source material as well. Their reasoning is we'll pay you back the cost for the tapes and then they're ours. Also because we're a public broadcaster we need the tapes in our archive. I can use the video's in my portfolio, but I have to release the source material.

So to recap. I'm not getting paid, except for the cost of tape, and now they want the source material as well. I feel a bit cheated. Maybe more than a bit. Am I wrong to want to withdraw from this deal now? Are they right? What are your thoughts?

 

[arniepix]

So to recap. I'm not getting paid, except for the cost of tape, and now they want the source material as well. I feel a bit cheated. Maybe more than a bit. Am I wrong to want withdraw from this deal now? Are they right? What are your thoughts?

You should feel cheated. You're working for free & not even getting to keep your own intellectual property. It's a rip-off.

 

[ggrantly]

I have done a couple of deals with customers where we both kept the rights, and that has worked out. GET THIS IN WRITING!. Also, make sure the musicians have given the rights to the organizer, or they need to sign off also. If you don't secure the rights to the material, it is useless to you.

If the organizers and or musicians won't do this on a contractual basis, then pass. This is not asking too much for a free shoot.

Grant

 

[Cassius]

I would consider giving them copies of the original tapes if they really wanted them, as long as a contract specifies I still have complete use of the footage for my own needs (could say promotional only).

The thing is, I'm not sure why they would need non-edited versions for the archives. If you're doing a multi-camera shoot the edited version is going to look huge amounts better, and I'd be worried about my name being attached to raw footage.

 

[KevinP]

Well - sorry - but you don't own the footage and it would be technically wrong for you to use it for your own purposes.

Someone (I hope) has a release document that the bands signed that governs use of the material. That document will control who owns the footage if anyone.

The "Intellectual property" that's mentioned above belongs to the acts who performed - not to someone who films them. Not you or the station.

The release document should say that the bands give permission for the footage to be used in "this way" or "that way" - most likely to be broadcast on the company web site or TV station but I doubt if it says you can keep it for your own archive or that the station can do anything else with it other than show it as coverage of the festival.

 

[Steve House]

Well - sorry - but you don't own the footage and it would be technically wrong for you to use it for your own purposes.

Someone (I hope) has a release document that the bands signed that governs use of the material. That document will control who owns the footage if anyone.

The "Intellectual property" that's mentioned above belongs to the acts who performed - not to someone who films them. Not you or the station.

The release document should say that the bands give permission for the footage to be used in "this way" or "that way" - most likely to be broadcast on the company web site or TV station but I doubt if it says you can keep it for your own archive or that the station can do anything else with it other than show it as coverage of the festival.

That is absolutely NOT TRUE. A film of a perfomance has a separate copyright from the music itself while a PERFORMANCE of music, since it's ephemeral, is not copyrightable at all. The musicians own the rights to the use of their likenesses and thus the videogrpaher cannot use the images commercially without a release but this DOES NOT mean the musicians have any ownership to the rights to the video of the performance. And unless they are the composers of the music they performed, they do not own the rights to the music either and cannot grant a release or license for its use. Now if the band hired him with a written contract to shoot the video, paying him for the job and stating IN WRITING that the video was made for them as a work for hire, that would be another story. But absent a written work for hire contract, the videograapher owns the copyright to the footage he shoots as the creator of the copyrightable work.
Now as to whether HE owns the rights or the station who asked him to shoot for them, that's another matter, depending on who is the actual creator of the finished program. But since there's no contract to the contrary, the presumption is the shooter ownd the rights.

 

[KevinP]

That is absolutely NOT TRUE. A film of a performance has a separate copyright from the music itself while a PERFORMANCE of music, since it's ephemeral, is not copyrightable at all. The musicians own the rights to the use of their likenesses and thus the videographer cannot use the images commercially without a release but this DOES NOT mean the musicians have any ownership to the rights to the video of the performance. And unless they are the composers of the music they performed, they do not own the rights to the music either and cannot grant a release or license for its use. Now if the band hired him with a written contract to shoot the video, paying him for the job and stating IN WRITING that the video was made for them as a work for hire, that would be another story. But absent a written work for hire contract, the videographer owns the copyright to the footage he shoots as the creator of the copyrightable work.
Now as to whether HE owns the rights or the station who asked him to shoot for them, that's another matter, depending on who is the actual creator of the finished program. But since there's no contract to the contrary, the presumption is the shooter owned the rights.

Nope!

A performance of a piece of music is copyright (as long as performed with permission) A cover song for instance. And the performer will retain that copyright for 70 years from date of performance under EU law. US have a similar law I am sure.

The original composer has composer rights which last for 70 years AFTER HIS DEATH.

The videographer can not claim copyright in something that he has no rights to video - or you could just turn up at a concert with your video camera - film it and then claim copyright on Madonna, or whoever your favourite happens to be.

The release document is the key - just as I have stated above.

If that document gives you rights to record the performance then and ONLY then can you start claiming copyright in what you have filmed.

 

[Steve House]

Nope!

A performance of a piece of music is copyright (as long as performed with permission) A cover song for instance. And the performer will retain that copyright for 70 years from date of performance under EU law. US have a similar law I am sure.

The original composer has composer rights which last for 70 years AFTER HIS DEATH.

The videographer can not claim copyright in something that he has no rights to video - or you could just turn up at a concert with your video camera - film it and then claim copyright on Madonna, or whoever your favourite happens to be.

The release document is the key - just as I have stated above.

If that document gives you rights to record the performance then and ONLY then can you start claiming copyright in what you have filmed.

You really need to study up because what you are saying is totally false. What is copyrightable in a cover is NOT the performance; it is the RECORDING of the perfomance. The permission does NOT come from the performer, it comes from the composer as represented by his publisher. A film, video, or phonorecording of a musical performance is a copyrightable derivative work. It carrys a totally separate and independent copyright from the music itself. A PERFORMANCE of a piece of music is not copyright nor is it copyrightable. A COMPOSITION of a piece of music, that is the words and musical notes, IS copyrightable. For something to be copyrightable it must be fixed in tangible form. The copyright belongs to the person who fixes the intellectual property into its tangible form. Sheet music is a tangible form. A phonorecording is a tangible form. A film is a tangible form. Joe Shmoe sings 'Stardust' and is recorded by Sony. Later on he is filmed in concert by Spielberg. Hoagy Carmichael wrote 'Stardust' and his estate, represented by his publisher, owns the copyright to the music and lyrics. Sony owns the copyright to the phonorecording of Joe's performance of 'Stardust'. Spielberg owns the copyright to the film he made of his subsequent performance. Joe owns nothing at all except the look of his face and the unique sound of his voice. Although Spielberg owns the copyright to the film, if he exploits it commercially Joe might be sue him for unauthorized use of his likeness. So Spielberg give Joe some cash and in return obtains a release allowing him to use Joe's image, just as if Joe was a model in a still photoshoot. Now Spielberg DOES have to obtain a license to use Stardust in his copyrightable derivative-work film but it does NOT come from Joe Shmoe, it comes from Hoagy Carmichel's publisher as THEY are the one's who own the rights to the music. IF he wants to use the recording of Joe's performance that Sony made, instead of recording it fresh on his own, he must obtain BOTH a license from Hoagy's estate/publisher as owner of the melody and lyrics AND from Sony as the owner of the recording they made of Joe's performance. Nowhere does Joe's rights enter the picture except in the wisdom of getting his permission to use his picture on the screen. Joe's performance is not copyrightable at all and he does not have any copyrightable interest in any recordings or visual representations of his performance. The only time he might is if he is also the record label (instead of Sony) that produced the recording of the performance.

The creator of work of intellectual property that first fixes it into tangible form owns the copyright to that specific work. A performance is NOT copyrightable because it is not tangible. The SHEET MUSIC or the SCRIPT for a performance IS copyrightable because it IS tangible. A FILM of a performance IS copyrightable because it too is tangible and its copyright belongs to the creator of the film, not the performer being depicted in it. Whether you can exploit that copyright commercially is a whole 'nother matter. The vaults are full of works who's owners can't release them publically because of other clearance issues.

 

[KevinP]

Well you've quoted me verbatim in your last post so if there is anything false in there I'll eat my hat!

It may not be what you want to hear but it's true.

I didn't read all your post as it looks like you're jumping through hoops to create a situation where you can be right - but your last sentence say's it all.

 

[Cassius]

That's my favorite type of argument. The 'I didn't read what you said but I'm right anyway' kind. This is pretty basic legals, and it should apply similar in the UK.

A video is not the same as a performance. It's that simple. I'm sure you don't think a picture you take of a Barbie doll is owned by Mattel. This concept is the at the hear of commercial photography and video production; the industry wouldn't function anything like it does if the rules were different.

In this situation, you can't even say he agreed to give up right to the footage since it's being done with no pay. Contracts are invalid that way.

For the OP, just make sure you keep copies. You're already filming for them and editing, I don't think they're getting much more than agreed out of this, besides some backup material.

 

[KevinP]

It is quite basic - perhaps we have a language barrier.

You think that you can film a performance of an act without permission and then like magic you now "own" the recording of that performance?

The guy on the stage who makes a living by spending years perfecting his skill performing has now lost all his rights because you know which end of a camera to point in his direction? And the law and courts will support you in this?

You're a videographer - you'd love that to be true. I suggest you try it next time some headline act is in town. Make a DVD, sell copies from your web site, . It's yours after all.

You do have rights in the recording - but not as simple as "ownership" - and it all depends on the conditions that the recording took place. Even a verbal contract and no pay can change the outcome of who owns what.

PS: Try putting that picture that you own of Barbie in a porn movie! - or use it to promote a national chain of beauty shops.

Again it's "yours" - use it. See what happens.

The only comprimise I can see is the definition of "own" - if by that you mean you can sneak it home and keep it in a draw then yes you "own" it. I take "own" to mean that you can do what you want with it - including sell or use the footage anyway you want. Quite clearly you can't and therefore (by my definition) you don't own it.

 

[Steve House]

It is quite basic - perhaps we have a language barrier.

You think that you can film a performance of an act without permission and then like magic you now "own" the recording of that performance?

The guy on the stage who makes a living by spending years perfecting his skill performing has now lost all his rights because you know which end of a camera to point in his direction? And the law and courts will support you in this?

Yes, that is exactly true. The law explicitly states that a performance is not copyrightable. The copyright to a piece of intellectual property belongs to the person who fixes it into tangible form. A film or video of a musical performance is a copyrightable work, and its copyright is completely separate from the copyright on the music that it contains. The copyright on the film belongs to the person who creates the film while the copyright on the music belongs to the composer and lyricist. Neither one belongs to the person whose performance is depicted in the film (unless they happen to have composed the music themselves). Actors and other performers do not have a copyright interest in the films in which they appear. Whether the copyright owner can commercially expoit his property is another matter altogether - you still ought to have a release if you wish to use someone's picture commercially. I said 'ought to have' because the law does not require a release except that if you don't have one it leaves you open to lawsuit for unauthorised use of the performer's likenss.

You're a videographer - you'd love that to be true. I suggest you try it next time some headline act is in town. Make a DVD, sell copies from your web site, . It's yours after all.

See above. The videographer owns the copyright to the footage and to the DVD he has created from it but he will probably be sued for unauthorized use of the performer's likeness if he trys to sell it without first securing a release. If you walk down the street and snap a photo of someone you own the copyright on the photo but you better not try to use it on a billboard ad without getting a release from the person you photographed.

...
The only comprimise I can see is the definition of "own" - if by that you mean you can sneak it home and keep it in a draw then yes you "own" it. I take "own" to mean that you can do what you want with it - including sell or use the footage anyway you want. Quite clearly you can't and therefore (by my definition) you don't own it.

"Own" means ownership of the copyright on the intellectual property present on the film, tape, DVD, or other media. The person who fixes it into tangible form (the filmmaker or videographer) or their employer if it is a work-for-hire owns the copyright. I suggest you actually go look up and read the law. You haven't said where you are but both American and Canadian copyright law is online at their respective copyright offices web sites. In addition, there is an excellent audio blog on iTunes from IP attorney Gordan Firemark where this has been a frequently discussed topic and his website has some FAQs on the subject that merit reading. Even a quick perusal of Wiki on the subject of copyright will make it clear how wrong you are.

 

[KevinP]

Sorry - it's obvious we can't agree - your arguments are complete nonsense.

You say you own it but can't use it.

You say you own it but you'll be sued for using it.

You say you don't need an actors permission but can't use the footage without it.

But I'll leave it at that - you won't accept anything.

No doubt you'll be off down the multiplex with your camera and tell Warner Bros etc. that actually it's you that owns that copy of the block buster!

All this changes if you have permission and release documents - as I've stated repeatedly - then you do have rights you can protect.

But you can't claim rights in something you had NO right to film in the first place.

 

[Steve House]

Sorry - it's obvious we can't agree - your arguments are complete nonsense.

You say you own it but can't use it.

You say you own it but you'll be sued for using it.

You say you don't need an actors permission but can't use the footage without it.

But I'll leave it at that - you won't accept anything.

No doubt you'll be off down the multiplex with your camera and tell Warner Bros etc. that actually it's you that owns that copy of the block buster!

Warner Brothers' blockbuster is copyright and owned by Warners. Making a video of the film is copying copyrighted property. A perfomance by an actor or musician is not copyrightable at all, by law. Filming a live perfomance is not copying any intellectual property owned by the performer. The script or musical composition is copyrighted and the videographer needs to clear the rights with those copyright owners but that's a different issue The performer's permission does NOT clear those rights even though he may have indeed licensed them for his performance. That is the difference.

To be copyrightable, a work must be tangible ... photo, film, video, manuscript, sheet music, painting, sculpture, etc. It must be a physical object. A performance is not an object but a videotape of a performance is. Thus the perfomance is not a copyrightable work but the video of the performance is. The law explicitly says copyright belongs the creator of the copyrightable work. Look it up ... I have

 

[KevinP]

But you can't claim rights in something you had NO right to film in the first place.

 

[Butcher]

NewHPXuser - your definition of "own" differs from the law. Perhaps that's why you don't understand how it works.

I take a picture of a piece of fruit. I own that image. The fruit was grown on a farm in California. That farm does not own that image. If there are no stickers identifying the farm that fruit came from, I can do whatever I want with the picture of that fruit because I own the copyright to the image of it. And fruit doesn't have any legal standing to prevent me from using its likeness because - well, it's a fruit.

Now replace the word fruit with model. I take a picture of a model. I own that picture of that model and the copyright to that picture, simply by taking it. Now, I can't do anything with it without permission from that model because you cannot profit from someone else's work or likeness simply by recording it. You need a release from them - permission, from the proper person, to sell their image. If they don't give you permission you still own the copyright to their image but there's really not much you can do with it. But it doesn't change the fact that, according to the law, I do own the rights to that image.

To understand the law you must accept the legal definitions of words contained in the law. And your definition of "own" is not the legal definition, therefore has no relevancy in the argument.

 

[KevinP]

I understand it completely thanks - and for what it's worth I agree with your scenarios.

That's not what is being discussed here.

Your friend Wiki says:

Ownership is the state or fact of exclusive rights and control over property, which may be an object, land/real estate or intellectual property.

That sounds pretty much (100%) like my definition.

So if you "own" it by those terms then you can do what you want with it.

In that case what's the problem. But you're scared to do anything with it - so I suggest you realise you don't own it afterall.

Anyway - this is pointless - Good luck with it anyway!

 

[Steve House]

I...
Anyway - this is pointless - Good luck with it anyway!

It's not pointless. If readers accept your view as factual, someone is going to film a concert and rely on a release from the performer as giving them sufficient permission to distribute their video. Such a release does NOT actually cover anything except use of the performer's image and/or voice in the video. The performer does not own copyright to anything involved in the perfomance and cannot give permission to use any of it unless he just happens to also be the composer/publisher of the music. The hapless reader who relies on your assertion that the performer owns the video and can grant the videographer permission to distribute it is going to find himself in serious legal difficulty. You will find a chat with an intellectual property attorney to be very enlightening - I suggest you do so if you're not willing to rely on my word.

 

[KevinP]

BS! - you're attempting to twist what I have said to justify your position.

I have never said anything like what you have just written. Quite the contrary!

It is YOU that will mislead people in to thinking that you can waltz up to a concert with your handicam and have something that has any retail or resale value by recording WITHOUT appropriate releases.

 

[arniepix]

The videographer can not claim copyright in something that he has no rights to video - or you could just turn up at a concert with your video camera - film it and then claim copyright on Madonna, or whoever your favourite happens to be.

Yes he can. A motion picture recording is a separate entity from the event that's being recorded, and it can have a separate copyright. And this is why most venues restrict the access of cameras and other recording devices.

But don't take my word for it. I would recommend that you go to the source- the US Copyright office has posted this on it's web site, copyright.gov