Who owns the image?

[Fran Kuhn]

This is where the waters muddy against the artist:

From Wikipedia:
In the Supreme Court case affirming that the common law of agency should be used to distinguish employers from independent contractors in the work for hire context, CCNV v. Reid[4], the Court listed some of these factors:

"In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party. See Restatement § 220(2) (setting forth a non-exhaustive list of factors relevant to determining whether a hired party is an employee)."

Well, unless I've got profit sharing, paid sick leave and two weeks vacation, I'm pretty sure I'm not an employee of my clients. That, and being a California Corporation paying my taxes like all good businesses. I think I'm in the clear

-Fran

 

[Jeff Coatney]

As a freelancer and contract photographer (and cinematographer), unless I sign a WRITTEN contract stating otherwise, I own the copyright.

As I've always understood it, there can be no implied work-for-hire.

If there is no implied work-for-hire contract, what's stopping you from releasing your own version of the movie the producer hired you to shoot? Or publishing the photos they hired you to take? There is an implied contract, while it may or may not be legally binding, it is certainly enforceable in the market and that alone makes it a consideration for defining work-for-hire status.

 

[Jeff Coatney]

Well, unless I've got profit sharing, paid sick leave and two weeks vacation, I'm pretty sure I'm not an employee of my clients. That, and being a California Corporation paying my taxes like all good businesses. I think I'm in the clear

-Fran

I'm not arguing with you about your situation, I'm simply pointing out that even the Supreme Court does not have a razor sharp definition of this issue, so it comes down to what you can get a jury to believe.

 

[Fran Kuhn]

If there is no implied work-for-hire contract, what's stopping you from releasing your own version of the movie the producer hired you to shoot? Or publishing the photos they hired you to take?

Hi Jeff,

Nothing, actually. I can (and do) sell the images as stock after one year, as stipulated in a written agreement. Of course, I always clear any additional usage as a courtesy to my clients. I must also negotiate a model and property release to cover such usage.

I believe Dylan mentioned Annie Leibovitz earlier. Not sure about her, but one of my assistants worked with Mark Seliger for a few years, He told me Mark's deal with Rolling Stone granted the Magazine one year exclusivity, then the rights reverted back to him. Apparently, Mark became extremely wealthy off the usage from his library of Rolling Stone images.

-Fran

 

[MikeHedge]

anyone have a work for hire contract that they use?

 

[Jeff Coatney]

*I wrote this before reading your last post, Fran. I'm not responding to your last post.

Even if you own the copyright on the image, unless you have releases from the people and locations in those images, what good does it do you?

The producers will submit the finished film as a work they created and authored and they can certainly argue that were it not for them, your work would not exist. Your work exists as a dependency of their effort, they will hold the releases and the copyright on the finished work, while you may retain some moral rights over components of the work. But you certainly won't be working professionally very long if you exercise your rights over the images you claim to have, because you really don't have the right to monetize your images beyond the initial payment you rec'd for working on the movie. Am I wrong?

But this is really just an issue over payment, right? Let's get the perspective of an agent, whose job it is to negotiate these rights for their DP clients? Is it possible to monetize these rights in a way that puts cash in the DP's pocket when it hits a new territory? How difficult is that to do? I'm betting that the answer will depend upon the DP's market leverage.

 

[Jeff Coatney]

Nothing, actually. I can (and do) sell the images as stock after one year, as stipulated in a written agreement. Of course, I always clear any additional usage as a courtesy to my clients. I must also negotiate a model and property release to cover such usage.

See, you have nothing to worry about. You have defined the rights in advance. But I noticed you protected yourself by written contract, which is materially different than selling images when there is no such contract, moral rights aside.

 

[Rob Gardner]

rights ownership in a hard old world...

rights ownership in a hard old world...

I think it's important to keep in mind a larger picture here. Most work is being done for a client who is providing it to another client who will want the option of multiplying the usage of the product in technologies and distribution systems not even invented yet.

So I may produce a show for a cable system for instance, and all the rights for everything in that show must be cleared to be assigned—at no additional cost or payments—to whoever paid me to produce the show and they will want to do the same for foreign distribution, airline presentation, web broadcast and whatever the next thing is. So all the rights—images, music, graphics, performances, whatever, are expected be cleared in perpetuity, in all regions of the universe in all media now and yet to be invented.

That is the kind of galactic buy-out language that one is increasingly hearing in contracts. So the chances of some cameraman retaining the rights to his footage in this kind of environment is pretty slim. Maybe the producer can hold on to something like the out-take rights, but mostly everything is a buyout.

Consider the kind of protections and residual rights that the DGA asks for. They get them in a spectrum of production that is statistically small, and getting smaller as the number of hours produced increases and the number of DGA signatories does not. With more and more cable hours to fill, budgets get smaller and (as stated in the earlier post) there are always cameraman and producers happy to deliver for cheaper in a big line, lined up around the block.

Of course, this isn't always the case, particularly when dealing with work at the top of the market, where agents are used or guilds still have some control. But that part of the spectrum is getting smaller all the time.

At least that's the way it looks to me.

See, you have nothing to worry about. You have defined the rights in advance. But I noticed you protected yourself by written contract, which is materially different than selling images when there is no such contract, moral rights aside.

 

[Steve Gibby]

I gave an overview summary of Work for Hire agreements in my post #17 on Page 2 of this thread.

All television and corporate work I produce or work on is non-union. Everyone who works for me on projects I executive produce signs a Work for Hire agreement, unless I'm producing the project on a co-production or contract basis for a TV network or corporate client, in which case myself and all of my crews sign a Work for Hire agreement in favor of the network or corporate client.

On self-produced productions in a self syndication model, those Work for Hire agreements are in favor of me, the Executive Producer, and I retain all copyright rights.

When I produce, direct, and/or shoot for another entity on a contract basis it is almost always under their Work for Hire agreement, thus they retain all copyright.

When I shoot stock footage, it is naturally under my copyright, which is retained in perpetuity no matter who represents it and/or who licenses it. My contracts with stock agencies spell that out clearly.

I'd highly suggest that when in doubt you consult an attorney who is a specialist in media law. "A stitch in time saves nine"

For a concise summary of U.S. copyright law as it relates to the TV/film industry check out this article by a media law attorney:

Cinema Law: Who Owns What? Raw Footage vs. Completed Project

by Gregory Korn | Published June 23, 2009

Link: http://www.moviemaker.com/blog/item...vs_completed_project_20090623/#When:05:01:00Z

 

[Joe D'Arcy]

If there was no contract signed and technically speaking the DP retains the copyright. Does this still apply if the Red (camera) and hard-drives are owned by the Director or Producer?

 

[MikeHedge]

and what if the producer paid to fly that DP to the location, and paid to feed the DP and paid for the room to stay in during the shoot?

 

[Jeff Kilgroe]

If there was no contract signed and technically speaking the DP retains the copyright. Does this still apply if the Red (camera) and hard-drives are owned by the Director or Producer?

Would John D. Rockefeller own the copyright to one of Monet's paintings if he had loaned him a paintbrush and bought him some tubes of paint?

@MikeHege -- now it sounds like the DP and producer are getting pretty involved. To me that starts to say that a work-for-hire arrangement is implied, if not already assumed. I know if I were in that situation as DP, I would want a contract in place that spells everything out!

In Joe's example of no agreement, but equipment is supplied, technically the DP retains the copyright, or so I would think, but Jeff Coatney brought up a really good point above somewhere. Even without specific written contracts, there is always intent and accepted practices within an industry or even a specific area of that industry. For example, most cinematographers working for a narrative production automatically assume they will be handing over everything they shoot. It is an accepted norm. It would be hard for them to go before a court and try to say they have all the rights to some footage when the producer could say that he was hired --by the production-- to shoot this --for the production-- and it's common practice for it to all be turned over to the production, etc..

That said, just because someone hires you to come and shoot something, does not imply it's a work-for-hire arrangement. You still pay most photographers to come and shoot things and yet in that business it's assumed they retain rights. They will typically have a contract that states their retention of rights and the money you pay is simply for their photography "session". I treat my video/motion/cinematography work the same way. That does not mean I don't do work-for-hire arrangements, often times I do. But I have it spelled out in writing either way.

When adequate written contracts or agreements are not available, the job of the courts is to determine the intent of all parties and then pass judgement based upon their findings or interpretation of each party's intentions. This can often contradict the literal word of law if there is sufficient evidence or circumstances to support one party's claim over another.

Once again, we fall back on the advice of consulting an attorney.

There is so much information out there on this subject, it is very easy to become overwhelmed when you start looking. The best resources are from actual law offices and law schools. Steve Gibby posted a good link above. Here's another link with some info that should be useful:
http://www.law.harvard.edu/faculty/martin/art_law/image_rights.htm

Since a good portion of people on these forums are independent shooters and RED camera owner/operators, I think many here are in a unique position of deciding what THEY WANT out of what they shoot. There are times you may shoot something where it makes perfect sense to retain full rights to the images, as still photographers often do. Sometimes it really doesn't and a decent paycheck from a work for hire arrangement makes the most sense.

 

[Chris Nuzzaco]

This is essentially a discussion about intellectual property, so I thought I'd chime in here to provide an alternative view...

I've been working in the stock photography world for about 2 years, as well as regular film and TV production for even longer. My exposure to the stock photography business forced me to learn a LOT about intellectual property (IP) laws. I also experienced much of the problems they wind up creating, ironically, for those who seem to champion the philosophy the most. It always struck me as a bit funny to watch photographers scream about the ridiculous nature of IP laws when agencies crack down on things like a particular style of desk lamp in the collections images, etc. - causing their images to be removed from the library. Now with that said, many will instantly turn around and champion IP law when its convenient for them, no matter how ridiculous they look when doing it.

I would suggest reading (or listening to) "Against Intellectual Property" by Stephan Kinsella:

http://mises.org/media.aspx?action=category&ID=226

I always thought IP laws were kinda messed up, and that book really expanded my mind. Many people don't realize that the fashion industry basically has zero IP protection, and there is a great video presentation on youtube about it if you want to learn more about it:

http://www.youtube.com/watch?v=zL2FOrx41N0

The one thing digital technology has done for IP laws, in my opinion, is prove that they are largely based on fantasy. I really believe the idea of a court system protecting you're profits has led to incorrect - or at least misguided - business models, particularly in the stock media market. Yes, I know it seems weird that a guy who sells images online would be so openly slaying the idea of IP laws, but the only reason I got to this point is pretty simple:

I saw up close, and personal, a business model based on the IP philosophy essentially going downhill because of the very philosophy it was based on.

Business models have to change, and hopefully stock agencies will evolve instead of relying on legislation to make their profits.

 

[Jean-Charles Wolfarth]

Copyright is the most widely used term but it doesn't really reflects all the aspects of intellectual property.

I can only speak for France, which is a country known to be one of the most protective place for artists. The "copyright" concept doesn't really exist here : we speak in terms of "moral right" and "author right" or "right of reproduction". The author right is the right authors can give to a third-party to exploit their work, for instance a dvd, a book, and the contract stipulates the usage allowed by the artist in exchange of a remuneration.

The moral right is something which is owned only by the author and it can't be given away. It protects the author against the bad use of his work. For instance, if you're a photographer or a director : you've sold to a company the author right to use this work for a compaign but you later learn that this work has been used in the compaign with another intent that it was supposed to be (a picture with a bad caption for instance), you can use your moral right to prevent the company for using it, even if you've signed an author right contract.

It's simplified, it's just to give an idea.

 

[Rob Gardner]

I think Gibby's model is very clear and I have to say that is probably statistically the most common (in terms of the number of hours produced) and probably the model of the future, much more so than one in which guilds or unions or artists have their creative rights protected.

It suggests a kind of plantation-of-production where the guys that drain the sap out of the rubber trees get paid to drain the rubber trees and the owners of the plantation and the people making the tires, distributing the tires and selling tires make all the money. The lesson clearly is try to own the farm at least (or be a sap-drainer of such talent and in such demand that you are your own market and write your own rules).

There is no future in residuals or ownership by craftspeople, (except for the very narrow spectrum of the top of the market) unless the fundamental distribution system changes (which it might) but most likely there will always be big companies with much bigger legal departments owning that distribution system.
That's the way it looks to me.

 

[Zakaree Sandberg]

I havent gone through and read everything... so maybe this is covered..

but in my opinion.. anyone working on a film shoot for hire shouldnt retain anything!

I get how the director can, the writer (sometimes), the producer..

but the DP is paid to do his job.. what he shoots belongs to the company that hired him.
the sound guys dont own the sounds they record..

I said writers (sometimes)
If the writer writes a film.. then i think they should get royalties.
however, if the writer works on a team of writers for a tv show, they shouldnt receive anything except the compensation they were paid to write for that episode..

 

[MikeHedge]

anyone have a work for hire contract they use?

 

[Robert Frank]

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

Great topic.

Discuss.

My head is spinning!

 

[Leo Ticheli]

I've a suspicion that most stills guys, now or soon to be doing video, don't know that we, generally speaking, don't own the footage we shoot. Clients used to working with us are going to be in for a big fat shock when they ask for their footage from a stills/motion shooter for a secondary use and are told they have to pay for it all over again.

Big bad fun, hurt feelings, and work for lawyers.

Good shooting and best regards,

Leo

 

[Leo Ticheli]

By the way, I remember that a now defunct production company declared that they owned footage shot for a client and it turned into quite an unpleasant scene. The client settled for a cash amount, and, of course, never used the production company again, nor did very many other clients.

They got their Prryhic victory at the cost of their entire business.

Good shooting and best regards,

Leo