Time / Usage Limitations?

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digitalinnovations

Well-known member
This is somewhat of a business-based post but I don't think there is a dedicated section for such discussions so I thought this may be the right place. If not, I apologize and please feel free to move to the appropriate area.

I've been hearing some mixed thoughts / advice so I thought I would jump on here to take the temperature of those on the forum...

Do you put any form of limitation(s) on how long a client can use a commercial / video production? Some production companies / freelancers put a stipulation in their contract that essentially says that the client can use this finished production XX number of months or days or whatever and after that point they have to pay a percentage of the total production cost in order to keep using that commercial / video.

What are you thoughts / experiences? If you follow this, what kind of verbiage do you put?
 
digitalinnovations said:
Do you put any form of limitation(s) on how long a client can use a commercial / video production? Some production companies / freelancers put a stipulation in their contract that essentially says that the client can use this finished production XX number of months or days or whatever and after that point they have to pay a percentage of the total production cost in order to keep using that commercial / video.
Click to expand...

As someone who work for an organization that occasionally hires freelance videographers/photographers and every once in awhile a production company. Let me give you my perspective. I think these kind of clauses are terrible. The company/organization/individual who pays for the work should own the source material and the finished product full stop. In fact, we would not hire any company that would put such a clause in. We already do not hire photographers or videographers that don't give us full rights and transfer of raw footage/photos. Even beyond the additional cost for future use, it is an enormous administrative hassle that eats up too much of our time and effort.

Secondly, I can't think of what the justification for such a clause would be other than greed. You've done the work, you've been paid for the work. Why should you get an additional paycheck when you've added nothing else to the product simply because time has passed?

Thirdly, by trying to put such a clause in you run the risk of damaging your relationship and/or putting yourself out of contention for work. Whenever we run into issues with someone we never hire them again. It's just not worth the trouble. Just remember regardless of the copyright law, the client ultimately decides whether they will hire you or not. Do good work, make life easy for them, don't make them feel they're being ripped off and they will likely come back.
 
From a talent perspective, Yes. Unless the client wants a full buyout then the limitations are either 13 week runs for commercials which use union talent, or a years usage if the talent is non-union talent.
And by talent, I mean either an on-camera, or voiceover person. The reason being, is the talent is held to a non-compete. If you want unlimited lifetime usage, then you need to do a full buyout for the talent.
 
First, let me disclose that I have never had this type of stipulation put on any work I have done. Not once in over 20 years.

That said, I can see where this would be beneficial...for the production company / freelancer and I know some do include that in their contracts. Also, I can definitely see some of the points you have made and how those definitely make sense and seem like a no-brainer...for the client / someone in your position.

I think where this becomes an area of contention is when you are operating in a market that the budget levels for production are more slim and you have to compete in the "race to the bottom" on rates. In areas where you can produce a great commercial but have to do so on a more restricted budget and then the client will run that same ad literally for years so there is no repeat business to speak of because they have an “evergreen” spot or seasonal spot that they just continue to use over and over.

That's why I wanted to open up the conversation because I think those two viewpoints will be and probably always have been consistent depending on what side of the fence you sit and I'm curious how that is playing out in real-world experience(s).
 
i dont work with anyone that has stipulations on usage of content whether it be photos, video or audio. i get an up front price that is satisfying to both parties then they do their work then hand over everything that we agreed on. thank you and see you next time.

david
 
Most work in our industry is work made for hire. I can see some instances with residuals and payments coming into play with the unions.

The documentary that I shot that premiered on HBO a few weeks, "Ali & Cavett: The Tale of the Tapes" ago has a ton of archival footage in it and
my friend, the producer of the film, besides paying the footage licensing fees, had to pay a sizeable amount of money to the DGA, SAG, etc. for clips
that were shot back in the 60s and 70s with union talent and directors.

The film was a work made for hire that HBO bought a rights package to so in that case, the producer
had to use fees paid to him by HBO for the domestic release to pay these various fees. Most the crew,
directors and talent have long since retired or died, yet they or their families/estates still are receiving
fees for work done half a century ago, which as a producer myself, I find ludicrous in a lot of cases.
But that's the way it works.

When I am producing for a production company freelance and spending their money, I would never agree to any
sort of limitations on time that the footage or finished work can be used, exhibited and profited from. I work largely in
PR and Home Entertainment and their licensing requirements are ALWAYS "All forms of media, in perpituity, throughout the known universe",
that's standard with the studios. Work made for hire with a carve out for some use for our own promotional purposes like demo reels and websites
is industry standard. Time limits or licensing renewals are typically more around talent and their appearance or work in a work made for hire, than
for the work made for hire itself. This may vary though in fashion, music videos, product photography, but I think that's becoming far less common
than it used to be because everything produced seems to get used all over the place.

Another documentary I shot about a musician that was recently released on the festival circuit, I shot footage for the producer/director, work made for hire,
just on a flat day rate. I noticed that for the artists new album, the record company chopped up a lot of footage that I shot of various artists at work on
the album in the studio, along with the main artist, and used it for all of the social media for the artist's new album release and for some music videos that
the record compny assembled from footage I shot for the documentary. If I was petty and greedy, I could have complained that my work was being used
to promote another related, yet separate project. But I knew going in that the shoot over two years, off and on, was a work made for hire and the production
company, that was at least partially hired by the record company, gave the record company the footage to chop up for promos and music videos. It was fine,
I didn't really care, the production owns the footage. If I did complain or try to invoice them for the second or third use, do you think the production company
would ever hire me in the future or recommend me to others?
 
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I think it depends on the service you are providing but even then it is a grey area. As a freelance cameraman doing corporates and commercials for me it is generally pretty straight forward. They pay me a day rate and I do my job.

The interesting part is when "the little online piece" I did a deal on is loved so much by Gary the CEO that he has found a magical pot of £££ for commercial spend that wasn't there before. Thankfully the production company has stipulated usage with the agency/client. When they renegotiate for commercial usage they add crew costs so we are paid correctly. In UK commercials this is generally governed by the APA guidelines (https://www.a-p-a.net/). I had this happen 3 times last year with the differences paid to me ranging from £13 to £335. One of my AC's once was asked to invoice for £1.50 to cover the difference. When handled properly It is a nice feeling that the client loved the video enough to put some extra money behind it.

None of the above is covered in any contract, I'm just lucky to work with honest people. I repay them by being flexible and understanding in prep and on set as well as giving my time and equipment to personal projects.

If In some alternate universe I was the production company or god forbid the talent I would most definitely be contracting usage and/or time. Imagine being the face of Bob's tyre yard for 35 years and thanks to inflation you have only earnt a £1 a year for the haunting privalege.
 
That kind of language was common in commercial photographers' contracts back in the day; I used to deal with it all the time. Let me emphasize: Back in the day. Those limited licenses largely disappeared in the 90s (at least in my world).

Basically, a client such as a magazine, corporation, or some such... (I'm not sure how ad agency contracts worked; I think it was similar) would pay a day rate and have rights to use the photographs in one issue, or one print product, or for one year. Additional uses required additional payments. The photographer kept copyright and could resell the images, perhaps with some restrictions, such as not to direct competitors of the client... But selling to the subject, another company, or eventually to a stock house (depending on content) were all open.

So imagine I hired a photographer to get pictures of a musician for an article. I could use them for that article. The photographer could later license the photos to the musician for his or or her own promotion, album cover, etc. (In that case, rights to publicity come into play, so the photog probably couldn't license the photos to a stock agency w/o permission from the musician). If I wanted to use them for a book we (original client) published, or a special edition issue, I might need to pay another licensing fee. Bigger deal photogs held onto those rights more tightly and for longer.

This is something I dealt with all the time.
This is also something that is largely gone (except for some really big-deal photographers).

For example, from some suggested language from the ASMP:

https://www.asmp.org/professional-development/licensing-guide/terms-conditions/
=====
Copyright: This is not a work made for hire. All Image(s) are © 2006 Chip Mitchell.

Reproduction Rights: The right to reproduce or use any Image(s) is conditioned on Photographer’s receipt of payment in full. Unless otherwise stated on the face of this Agreement, duration of the License is one year from date of Photographer’s invoice and is for English language use in the United States only. Except as expressly licensed by Photographer in this Agreement, Photographer reserves all other rights in and to the Image(s) of every kind and nature. No license is valid unless signed by Photographer on Photographer’s Invoice. No rights licensed may be assigned or transferred to a third party without Photographer’s prior written consent.
=====

As the 90s rolled along, many/most magazines stopped accepting that sort of language and bought all rights. This was at magazines with annual revenues between $5 million and about $50 million. Our corporate overlords were tightening our budgets and we couldn't afford to roll with limited-rights contracts. We went to work-for-hire. Lots of complaining from photographers, understandably, plenty from us editors since we lost access to some of our favorite photographers (for at least a while), but by and large, we rolled ahead... We had deadlines to meet.

The last limited-rights photography contract I was involved with involved an interview with Walter Murch. The was the first "Murch uses FCP" article. He was in Europe working on Cold Mountain, we needed really nice images, the photographer our director wanted (and trusted and was available in Europe) required a limited rights contract. The pictures looked great. The photog ended up licensing the images back to Murch who then used them on the cover of and inside a book, his own promotional materials (like for promoting speeches), and some other ways. We didn't see any of that money. Not the end of the world.

But the world has turned. These days, trying to use that language, unless you're a total rockstar creative, will greatly limit the number of gigs you get. Or so it seems to me.
 
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