Who owns the image?

[David Battistella]

In a world where photography and cinematography are merging the question of who owns the negative is going to start to collide.

Traditionally photographers own the image they take.
Traditionally, cinematographers do not own the image they take.

Example.

Big production fashion photographer shoots a high profile model (rolling stone cover) Photogrpaher owns the image copyright.

Big Hollywood production shoots a star in a widely distributed motion picture.
Cinematographer owns nothing.


Discuss.

David

 

[Jean-Charles Wolfarth]

Thanks David for opening the discussion here. Feature film production is a collaborative process. A very expensive one.

Traditionally in the American film business the producer owns all the rights, except some A-list directors who may have the final cut. It's understandable since they're taking all the financial risks and the crew members/cast are usually considered like simple employes.

In Europe, especially in France, things are different as most of the financial funding comes from the state. The law also states that the creator (director/writer/sometimes dop) does have good protection regarding the exploitation of his work, just like a photographer.

I think the differences come from historical reasons and unions fights over the years.

 

[Leo Ticheli]

This is very good point to discuss.

I must say I've always been offended by still photographer's assertion that they own the image in perpetuity when, quite often, the picture in question is the result of the efforts of many talented people. Art directors, writers, talent, wardrobe, often lighting, etc. And when a client is paying for it, in my view they own it.

As we are now in the first, and forever more embrace of convergence, I expect a cold shock to the stills photographers and, perhaps more so, to their clients when they claim ownership of the footage.

I think this could prove to be an advantage to those of us who do moving pictures; clients of our work expect to own their footage for future re-purposing. They won't take kindly to being burned for more money down the road.

Good shooting and best regards,

Leo

 

[Dylan Macleod CSC]

IMAGO is pursuing cinematographers rights over the images they create.
Check out this article. There is a questionnaire if you feel inclined to contribute.

http://www.imago.org/index.php?new=158

 

[Leo Ticheli]

I just scanned the article, Dylan,

Seems aimed at a revenue sharing for Cinematographers doing features.

Down in the gritty world of those doing other work, such as commercials and corporate films, it's a different story and I'm still put off by an ownership claim by someone who is just one part of a collaborative effort.

If I do an art piece, conceived, lit, and directed by me, I should own the image whether still or motion.

It may not be so clear as more hands, hearts, and heads are added to the project; the question of ownership is then muddled, but the guy paying for it certainly has a strong case.

When bidding against the new crop of competitors from the stills world, one would be well advised to point out the ownership issues. Even with all things being unequal, such as price when we are higher, this factor may well be of primary importance to the client.

Opinions vary; that's why there are so many flavors at the ice cream shop.

Good shooting and best regards,

Leo

 

[Brent J. Craig]

Most cinematographers, unless they are shooting for themselves or are also the producer, work under a "Work for Hire" contract. This means that they are hired and paid to shoot and do not retain any ownership of the images. I don't think it is reasonable to expect to own footage if you are not the one paying the bills.

 

[Jonathan Stevenson]

Most cinematographers, unless they are shooting for themselves or are also the producer, work under a "Work for Hire" contract. This means that they are hired and paid to shoot and do not retain any ownership of the images. I don't think it is reasonable to expect to own footage if you are not the one paying the bills.

I think that's the point. Photographers are hired under the exact same premise, but somehow they still retain rights to their images.

 

[Dylan Macleod CSC]

Most cinematographers, unless they are shooting for themselves or are also the producer, work under a "Work for Hire" contract. This means that they are hired and paid to shoot and do not retain any ownership of the images. I don't think it is reasonable to expect to own footage if you are not the one paying the bills.

Agreed.

But this conversation is very relevant because, as others mention, the landscape is changing. My agent is considering repping her cinematographers as stills photographers as well. We are getting many requests for stills during shoot days.

The lines become very blurred. If you take stills on a shoot, do you own the rights to the images like a photographer does? Nope. Because I am work for hire as you suggest. But if it was done through a stills studio with a standard stills photographer that was hired - that photographer would likely own the rights to the image.

Now - shoot with a RED. Pull stills from the footage and use it in a magazine ad...the lines are definitely blurred.

And Brent - this makes me think of a certain stills photographer who we both know and a DP who shot that stills photographers music videos. When that stills person decided to publish a book of their work it contained all of the lighting of our DP friend - with no credit to him in the book. The lines can definitely get blurred...

 

[Dylan Macleod CSC]

I think that's the point. Photographers are hired under the exact same premise, but somehow they still retain rights to their images.

Exactly. And although what IMAGO is pursuing seems unreasonable - I think the y could find a good middle ground. At least someone is looking in to protecting our rights!

 

[Jonathan Stevenson]

I imagine once this becomes an issue, what'll happen is that photographers will stop owning the rights to images, not cinematographers gaining the rights to their footage... You think Warner Brothers is going to cut Wally Pfister a check every time they sell a Dark Knight DVD? No.

 

[Brent J. Craig]

Very true Dylan.

In that case perhaps the proper approach is to include usage rights in DP contracts specifying which media is included and which would be extra.

For example, when a DP is hired to shoot a TV commercial and they pull stills for a print ad, should the stills be separately licensed? What about when a DP lights a set and a stills guy comes in at lunch and shoots a print campaign with the DP's lighting?

I think more restrictive DP contracts would be a hard sell, but that why you guys have kick-ass agents.

 

[Liam Hall]

The lines become very blurred. If you take stills on a shoot, do you own the rights to the images like a photographer does? Nope. Because I am work for hire as you suggest. But if it was done through a stills studio with a standard stills photographer that was hired - that photographer would likely own the rights to the image.

This happened to me on a recent job for a well known credit card company. They wanted stills from the shoot for their website, so hired a photographer to take the shots. This guy followed me around for three long shoot days. My crew and I worked like dogs whilst this guy swooned around taking a couple of shots of my set ups here and a couple there. He was paid more than me and retained copyright. I wasn't annoyed, nor was I jealous, "good luck to him" I said, but on the next shoot for the same client I was taking the stills

I'm finding more and more clients are asking for both stills and moving pics. Generally I just charge extra for the stills camera and waive rights - but I can't help feeling I'm missing a trick...

 

[Jeff Kilgroe]

In a world where photography and cinematography are merging the question of who owns the negative is going to start to collide.

This is always under dispute because people don't understand copyright laws and what their rights are.

Traditionally photographers own the image they take.
Traditionally, cinematographers do not own the image they take.

Makes no difference if it's still or motion, film, video, digital, analog, etc.. YOU OWN THE IMAGE IF YOU RECORD IT WITH YOUR CAMERA. This whole attitude about cinematographers not owning the images they shoot is just stupid. It's true that they typically don't walk away from a shoot with ownership because there are contracts and agreements in place to that affect. Any shoot that does not have such agreements in place, I retain full rights to everything I shoot -- I also make it known in writing where ownership lies and I typically don't walk onto a job without such specifications. Laws on copyright and ownership vary from place to place, but there are international copyright standards and practices that most places follow to some degree.

However, there are always other circumstances where others have legitimate claim to an image or rights pertaining to it. For example, If you hire a model and pay that person to take photos or video of them, they were doing that knowingly and as a professional service for the purpose of you to take those pictures. They have a claim on that imagery -- that is why you use a model or talent release.

If you shoot a photo or a video or whatever in a location that you do not legally have controlling ownership in, you need a location release. When taking images from public property, you typically don't need a release. However, many places in the country will still require you to have permits for doing anything for a professional nature on public property or even for non-professional use if you're going to be obstructing sidewalks or drawing attention.

Example.

Big production fashion photographer shoots a high profile model (rolling stone cover) Photogrpaher owns the image copyright.

That's because the photographer is smart and photographers have always traditionally retained ownership of what they shoot, both by established copyright law and by any contracts they enter. In that scenario, you can bet there is also a location and talent release clause attached to the ownership of that model's photo and a licensing agreement of grant of permission to Rolling Stone Magazine in this example for them to use the image on the cover.

Big Hollywood production shoots a star in a widely distributed motion picture.
Cinematographer owns nothing.

Cinematographer owns nothing only if his contract says he owns nothing. Otherwise he has the same rights and privileges as a still photographer would under the same circumstances.

The biggest problem we have with this sort of thing in the "movie biz" because that's really where all the misconceptions and false notions are, is that there are too many people who don't know their rights. They undervalue themselves and they work for nothing or even free or less.

If you show up with a RED on a no-budget or low budget shoot with no contract. Damn skippy, you own everything you shoot and if the idiot director / producer doesn't know any better, then he's a complete dumb ass. In many of these situations, people shoot projects like this without location releases, let alone permission in many situations, and without talent releases. Which in turn means that location owners and those who appear in what you shot also have a valid claim to ownership of what is shot.

In a feature film or other form of progressive work, the photographer or cinematographer really may only own just what they shot themselves. Beyond that, ownership - or lack of ownership is down to contractual agreements. Ownership ends there and any derivative work created -- like the final edited film, is owned by those who created it from the footage. However, it can get ugly if there is ever a dispute over ownership of the footage. If ownership was never legally agreed upon and transferred from the cinematographer, then all derivative work could be in violation of copyright or intellectual property rights and subject to other legal impositions -- such as a cinematographer could end up walking away with a significant amount of the revenue from a feature film if the production never properly secured rights to what he shot. This is why studios and most productions use work-for-hire agreements that specify who owns what is shot.

Most studios have lawyers and contracts up to their eyeballs when it comes to hiring people. It's usually all covered several times over... When a news station hires a cameraman, their employment contract will state that anything they shoot or create while under employment of that news station and/or on their equipment becomes the property of that news station. This is also why many employment contracts for technical and creative people even go so far to say that anything a person creates, even at home on their own time, becomes the property of their employer if it is in any way related to their job. When I worked as a game developer, I technically couldn't even dabble with coding something of my own on the weekends at home without subjecting myself to potential legal issues if I ever released anything or made it known I was working on my own code or graphics. Many people have gone on to challenge such employment contracts in the courts, and often they win. The position of most state and federal courts is that what a person does in their own homes, on their own time is their business, even if it may potentially conflict with their employment.

I may have gone a bit overboard there. But the simple fact of how ownership and copyrights work, is this. If you record an image with a camera, you own it. Plain and simple. Doesn't matter if the image moves or is static.

 

[ericyoung]

This happened to me on a recent job for a well known credit card company. They wanted stills from the shoot for their website, so hired a photographer to take the shots. This guy followed me around for three long shoot days. My crew and I worked like dogs whilst this guy swooned around taking a couple of shots of my set ups here and a couple there. He was paid more than me and retained copyright. I wasn't annoyed, nor was I jealous, "good luck to him" I said, but on the next shoot for the same client I was taking the stills

I'm finding more and more clients are asking for both stills and moving pics. Generally I just charge extra for the stills camera and waive rights - but I can't help feeling I'm missing a trick...

You ARE missing a trick!

The photographer was paid separately for his equipment, services and his rights to his photos! You've done exactly what he did, for the price of your stills camera alone. I bet the production company loved you!

 

[Dylan Macleod CSC]

This happened to me on a recent job for a well known credit card company. They wanted stills from the shoot for their website, so hired a photographer to take the shots. This guy followed me around for three long shoot days. My crew and I worked like dogs whilst this guy swooned around taking a couple of shots of my set ups here and a couple there. He was paid more than me and retained copyright. I wasn't annoyed, nor was I jealous, "good luck to him" I said, but on the next shoot for the same client I was taking the stills

I'm finding more and more clients are asking for both stills and moving pics. Generally I just charge extra for the stills camera and waive rights - but I can't help feeling I'm missing a trick...

My agent is suggesting a "buy out" on the still images when we are asked to take stills on a job we are already the DP. I think this is a good middle ground.

 

[Liam Hall]

You ARE missing a trick!

The photographer was paid separately for his equipment, services and his rights to his photos! You've done exactly what he did, for the price of your stills camera alone. I bet the production company loved you!

Yes they did, so did the client - not sure the photographer did though...

I like the idea of a buyout for stills as Dylan mentions, I might try that out on a couple of clients and see how it floats.

 

[Steve Gibby]

But the simple fact of how ownership and copyrights work, is this. If you record an image with a camera, you own it. Plain and simple. Doesn't matter if the image moves or is static.

This is true - unless the person using the camera system to create the images has signed a well-worded, no-loophole Work for Hire agreement, or alternately there is such a Work for Hire clause in their overall work contract, in which cases copyright ownership of said images rests with the entity designated by such executed agreement.

The bottom line on the above for producers is to always get professionally constructed Work for Hire agreements signed by those you hire. For those who use camera systems to generate images, the strategy is to sign such Work for Hire agreements when it is absolutely necessary in order to secure the work project, but when there is no Work for Hire agreement in place basically the shooter owns copyright to the images he/she shoots.

Everyone who shoots images for a living should take the time to understand copyright law and how it applies to the images they create.

 

[Leo Ticheli]

Is there any one of us who has not been abused by the stills photographer, usually brought on at the last minute, after shoot schedules have been established and the budget locked in?

How many times have you heard from the client, "it's no problem; it will only take a second." Of course it does not take "just a second;" the stills guys milk it for all it's worth, test shot after test shot, moving our lighting set up around, only to discover that it was as it should be in the first place. I've had them break things on the set; I'm not kidding.

Gee; how did we get behind schedule?

As you know, one of the strong points of the Red is the elimination of those pesky stills shooters on the set. I tout this to all my clients and have had to suffer the stills guys on the set only once since the Red arrived. Yea! Sometimes I'll whip out my Nikon, now Canon, but that's another story.

Lastly, does it pull my chain that they own their precious images which I conceived, blocked, and lit? Yes it does. OK they framed it; major contribution. Grrrr...

OK, enough bile; I've got several friends who are stills shooters. They are without exception, completely professional and enormously talented. I just don't want them on the set!

Good shooting and best regards,

Leo

 

[Eren Ozkural]

I'm sorry to hear that you've worked with such stills photographers Leo.

I work as a unit/publicity photographer as well as director and vfx. Having grown up doing pretty much every job on a set I'm aware of the expectations on each person in regards to time and results. I always make sure that I meet up with the heads of department before shooting begins and ask them what's expected of them. I then tell what's expected of me and we work out a system where I'm as non intrusive as possible.

If I am doing promotional/publicity photos and not just behind the scenes unit photography I usually have my own area set up as well with my own seperate lighting. If the production cannot afford that then I liase with the dp and see what we can share without impacting the schedule or set ups.

Even if the dp's lighting is used the photographer's job is more than just framing. But I understand your frustrations.

Is there any one of us who has not been abused by the stills photographer, usually brought on at the last minute, after shoot schedules have been established and the budget locked in?

How many times have you heard from the client, "it's no problem; it will only take a second." Of course it does not take "just a second;" the stills guys milk it for all it's worth, test shot after test shot, moving our lighting set up around, only to discover that it was as it should be in the first place. I've had them break things on the set; I'm not kidding.

Gee; how did we get behind schedule?

As you know, one of the strong points of the Red is the elimination of those pesky stills shooters on the set. I tout this to all my clients and have had to suffer the stills guys on the set only once since the Red arrived. Yea! Sometimes I'll whip out my Nikon, now Canon, but that's another story.

Lastly, does it pull my chain that they own their precious images which I conceived, blocked, and lit? Yes it does. OK they framed it; major contribution. Grrrr...

OK, enough bile; I've got several friends who are stills shooters. They are without exception, completely professional and enormously talented. I just don't want them on the set!

Good shooting and best regards,

Leo

 

[David Battistella]

I am glad we are having this discussion. I believe that the reason the stills photographers ended up owning copyright was because they actually held the negative. By holding the neg, you own the intellectual property (possesion is 9/10ths of the law).

A cinematographer does not take care of the negative but I have kept every single frame I have captured on RED in the r3d format for a few reasons. I want the original when I am presenting or representing my work, for promotional purposes, to maintain the ability to sell the images (of non descript scenes) in the future.

I really respect the many peoples talents going into one frame mentality. If you look at a Scorcese picture you can see the work of all of his longtime colaborators. Publicly, he is given much of the credit, but we all know how much goes into that. In a sense Mr. SCorcese assembled the team and created somethign resembling an artists collective but her is the BRAND.

The same way annie leibovitz is a brand when it comes to stills photography. SO there is a double standard at play. The creative professional is allowed to retain, but the lower end does not.

It's a really fascinating question.

Dylan,

I think that the agent could take the approach my acting agent does, you do the contract and negotiate the backend. Frequently there is a buyout and costs laid out for additional use, etc.

Film, at this moment, is where music was at in the fifties when shark record producers were buying songs for fifty bucks from poor musicains and making them into hits by bigger artists.

This would never happen today because the writer/creators/songwriter are protected.

With a prevailing attitude that film professionals are little more than spoiled babies who get to do what their kids can do on an iMac and digital camera, the battle is really uphill for people who make motion images for a living.

David