Who owns the work? Copyright in 2016

[Anton Shavlik]

I know in the US, video and other audiovisual work fall into 'work for hire' which is a special category for copywrite ownership.

Wikipedia says that if you're an employee of a company creating audiovisual work as part of your job it belongs to the company employing you, but if you're on contract (as a freelancer etc):

1. the work must come within one of the nine limited categories of works listed in the definition above, namely (1) a contribution to a collective work, (2) a part of a motion picture or other audiovisual work, (3) a translation, (4) a supplementary work, (5) a compilation, (6) an instructional text, (7) a test, (8) answer material for a test, (9) an atlas;
2. the work must be specially ordered or commissioned;
3. there must be a written agreement between the parties specifying that the work is a work made for hire by use of the phrase "work for hire" or "work made for hire.

If your work doesn't meet those 3 conditions you still hold the copywrite, as I understand it. Also those conditions must be met before the work is created, you can't sign a 'work for hire' contract on work already started or finished.

In my opinion, if you didn't specifically sign the contract stating it's a work for hire you have every right to only give the deliverable and not the project files, and it's up to you if you should do so in any given situation. I've never given up raw files or project files on projects where that wasn't what I was specifically hired to provide but I know people who do for the clients that they trust it with.

 

[AndreeMarkefors]

I think there might be some "talking around each other" going on here.

I understand Jake's perspective from a creative standpoint. To me, a simple example would be a photographer tasked to produce a certain image:

He visualizes the scene, shoots raw, massages the exposure for greatest technical flexibility, and then develops that image according to his/her vision and delivers the image.

When this photo goes into print (photo by: XX) the photographer doesn't want some magazine employee boosting the saturation ("hey, this looks a bit dull, let me fix that"), and they will not hand out any files for further developing by others. After all, this is a photo BY that photographer.

In another scenario, the same photog gets tasked to produce photos for a furniture catalog. The catalog has its own creative designer and there is the brand of the furniture to consider. Here I think it can be expected to hand files over to other creative PROFESSIONALS, since the role of the photo taking is completely different.

Maybe a film grade for a feature film is more like the first photo example, and commercial grading is more like the second furniture shoot? This is an over simplification, but maybe you understand my reasoning?

I think Björn has many valid points, not the least from a technical standpoint, when it comes to commercial photography/grading. I assume it must be beneficial to be able to take many different roles in post production, now that the competition is increasing.

 

[Nick Morrison]

Also, on the topic of "who owns the work", bear in mind most media companies, when you sign as staff or even permalance, have contractual language that gives them ownership over ALL your creative work, even side projects you do on your own time.

With TV being in such turmoil, my guess is employees don't have much leverage, which is why this language/position is becoming more common place...

 

[James Falco]

I should have been more specific: People INVESTED in copies of Resolve. Small business owners, struggling to get by in this economy. BM burned us at a BUSINESS level (granted, me for only $1000, others previously for much more). I think it says nothing good about BM that they would be willing to burn their paying customers so casually. Yes, technology gets cheaper and cheaper, but generally software holds its value, or comes down in REASONABLE, stepped increments that are predictable. How long have I been upgrading my copy of Photoshop CS2? I never felt burned by Adobe, even though the soft is a bit cheaper now.

I am a small business owner to, I wish all software was free or below $100. I have no issue with that, because in this digital day and age, working in this industry, creative talent and the skill to materialize ideas is king.
Where talentless copanies that pile up gear and software licenses go under like the Titanic.
I spend a big chunk of my life in the 80's and 90's watching untalented people sit on extremely expensive creative tools and produce insultingly bad content.
For years I have been pitching ideas for gigs that clients stole and hired someone with more infrastructure and no talent to execute.

I am slurping up that price cut, and I am up to break some visual neck. Because thats my business model. ; )

 

[Nick Morrison]

I think there might be some "talking around each other" going on here.

I understand Jake's perspective from a creative standpoint. To me, a simple example would be a photographer tasked to produce a certain image:

He visualizes the scene, shoots raw, massages the exposure for greatest technical flexibility, and then develops that image according to his/her vision and delivers the image.

When this photo goes into print (photo by: XX) the photographer doesn't want some magazine employee boosting the saturation ("hey, this looks a bit dull, let me fix that"), and they will not hand out any files for further developing by others. After all, this is a photo BY that photographer.

In another scenario, the same photog gets tasked to produce photos for a furniture catalog. The catalog has its own creative designer and there is the brand of the furniture to consider. Here I think it can be expected to hand files over to other creative PROFESSIONALS, since the role of the photo taking is completely different.

Maybe a film grade for a feature film is more like the first photo example, and commercial grading is more like the second furniture shoot? This is an over simplification, but maybe you understand my reasoning?

I think Björn has many valid points, not the least from a technical standpoint, when it comes to commercial photography/grading. I assume it must be beneficial to be able to take many different roles in post production, now that the competition is increasing.

I'm sure the photographer comparison is apt.

I think what Jake is talking about is similar to what lots of GFX/DESIGN houses demand: to not pass on their techniques (which have often taken decades and dozens of people to create) onto the client.

A photograph doesn't reveal much of the photographer's technique. The camera, lenses, filtration, lighting remain proprietary. Only the final "grade" can be changed in the RAW file.

But in a GRADING project...ALL the colorists techniques can be EASILY DEDUCED, REPLICATED, COPIED. Decades of experience can be copy and pasted.

Same for design. If a DESIGN company were to hand a client their massive AFTER EFFECTS file, they could be handing over years of proprietary design techniques, approaches, styles...all COPY and PASTABLE in 5 seconds.

Of course, clients are DEMANDING After Effects files more and more from vendors. Which makes sense. They'd like to use these projects to render out new deliverables.

So the compromise has been to deliver FLATTENED projects. Ie projects clients can USE, but not COPY DESIGN TECHNIQUES from.

So..I think Jake is talking about decades of experience being laid bare. If I followed him correctly.

 

[jake blackstone]

I do work freelance and i have no problem with a company, that hires me ends up owning my work outright. This is not that different, when a commercial shoot is wrapped and production stuff, including the director and DP are never to be involved in finishing of the spot. At least in Europe such situation is almost unheard of. There, the director and/or DP at least get's the first shot at color pass, but even then, there are no guarantees, that the agency will follow that direction. Unfortunately, in US the production team rarely has an input in a commercial post work. But that is what production is hired for- to produce images. Are we to assume, that from now on, clients will start demanding lighting charts, lenses, camera settings, LUTs etc. or are they going to run around the set, taking pictures of camera set ups, so they could reuse those set ups in case of last minute re-shoots?

 

[jake blackstone]

For years I have been pitching ideas for gigs that clients stole and hired someone with more infrastructure and no talent to execute.

Perfect. Now you can stop pitching and start executing your innovative ideas, that were so rudely stolen. Can't wait...

 

[David Battistella]

In sound, I think it is pretty standard to hand over mix stems but maybe not the entire protools session and every sound effect used. Maybe only the sound house has the right for the use of the SFX in his work but giving the effect over would actually be a copyright infringement.

It's interesting to see how each niche has carved their own way of protecting their work.

In photography the act of clicking the shutter button was long considered the copyright but its obviously negative possession and ownership (when we shot film). That did not translate so much to digital.

This raises another interesting possibilty with DSMC and stills extraction, where you can be DP and photographer and maybe it is the other way around where they want motion for stills and not stills for motion.
What rules are supposed to apply there?

 

[Mark Toia]

Thats like saying being a "DOP" is a minimum wage job, Since anybody can say that they are a DOP... you do not even need to have a camera usually it's rented for the project at hand. So all you need is a pair of cool looking jeans and a T-shirt... that is very far from the truth, some people get paid very well as photographers, some does not. Same goes for people doing photoshop, some knows what they are doing and they make a bundle retouching, others got the program "of the web" and fiddle some at home... not so much money. The same goes for grading. If you think you can just download the free version watch a tutorial on youtube and then go away and say that you will grade Lord of the rings 5 but for less cash than the other guy, then you will probably be without of luck... You are right that grading is now not a machine investment driven business.. But when you say you pad 1000USD for your copy you also have to have in mind that other people before you bought the same software (earlier versions) for several hundred thousands of USD... So I guess it's the way the world spin.

Agreed,

And now you can rent Flame for $500 a month or per project. I remember the days when it was 250k investment.
Software for a 1000 bucks is still cheap and completely useable and profitable. I've got the full version of Davinchi and its processing / performance kicks the free version in the arse. Paid it off in my first job.
Plus free software doesn't make a awesome colourist over night. I know people that have had it for years and are still crap at it. It's still a finishing tool and a craft that needs time to master, Adobe's speeds grade is practically free, auto desk lustre is pretty much free, it's just the way the world is revolving.

Most modern day programs and tools cheap and easy to learn. Doesn't make you a pro over night though

 

[Christoffer Glans]

I've moved it all over here into it's own topic

David

...and all of a sudden I became the OP hahahahaha :tongue_smilie:

I always, up front demand the resolve project file for my projects and I find colourist that does not want to provide such as hard to work with. I simply do not book them. If I produce something I find the resolve file just as relevant to have on my project drive as the offline project file, the XLM´s , the graphics and so on. But I do fully understand that the colourist creative integrity possibly gets more than a little bit squeezed in that process, but then thats something they will have to charge me for. The guys I tend to work with are confident enough to understand that I hire them for their eye and ideas. When doing VFX and CG stuff the best result is achieved if the composite and 3D can be done both "underneath the grade" or above depending on whats happening. In other words we need to be able to have what ever happened in resolve as an Adjustment layer. Just getting a DPX sequence with graded material just dont cut it. At least not in my house.

This, I get... I think I'm talking more about clients who have no experience with grading, who don't know how to master the work and who continue working on uncalibrated screens after I'm done. If the people who continue the work after me aren't qualified, then why the hell did they pay me in the first place? I bring a quality control to the process by using hardware (calibration and screens) in junction with the software to guarantee that you get matched and good colors out of Resolve based on the end delivery. So if you don't know what you are doing (most people), then it's not good for anyone to just continue with the colorists project. But in your case, I don't find it to be wrong at all since there's a lot going on with VFX etc. and the process needs to be more open in that case. I also know that you know what you're doing so it's a different case from client to client. My responsibility, when someone wants the project file, is to ask if they cover the needed QC for color if they take over my project after my deadline ends. If they don't know or don't have the necessary equipment I usually mention the fallbacks of continuing as they want to and mention that it's risky and I would recommend not to do it without an experienced colorist overlooking the final master.

I think a broader look at the industry is necessary, to really see what is happening to POST-PRODUCTION (and not just Colorists).

This POV is coming from my 15 years in broadcast.

FIRST: the industry is exponentially larger than it was 20 years ago. We've gone from 4 major broadcasters and fledgling cable networks, to 100's of cable networks, the vastness of the internet, and now thousands of successful networks in nations across the world. There are now ARMIES of people shooting, editing, grading, mixing.

This MASSIVE scale is what's allowed software and hardware to become so affordable. Blackmagic can make a massive profit giving Resolve away for free, but selling MILLIONS of Decklink cards.

It's the economy of scale.

SECOND: Our industry is old fashioned, and is prejudiced against POST-PRODUCTION.

Why? Because in the end, the entertainment industry prizes DIRECTORS/CREATORS, and dismisses everyone else as TECHNICIANS. Show-Runners/Writers/Directors...they make the millions. Whereas the DPs/Colorists/Editors/Designers who MAKE their work...are seeing their wages stagnate or go down every year.

Why? Because as our industry explodes, it's absorbed our larger culture's obsession with talent/celebrity/artist. The 60's "auteur theory" is today's pay metric.

The people with "ideas" get paid. And everyone else suffers.

I see this all the time in broadcast promo. All the video editors have seen their salaries fall for the past 20 years. And yet they do the BULK of the creative work. They make terrible ideas look GREAT. And yet young, inexperienced "writers" get promoted to the executive suite in their late 20's, and by age 30 are VP's making several times more than these 50 year old editors.

Why? Because the industry doesn't believe in teamwork anymore (the bedrock of filmmaking). It literally believes there must be one "genius" responsible for a great idea. And it pays accordingly.

I don't really see a solution to this except evolving into a technician that has "great ideas".

This is starting to happen in my industry. The BEST editors start their OWN shops, and clients follow...because they're willing to "pay" for that "genius".

But they are few and far between. The young writers still have it far, far easier...I'm afraid.

Wish I had better news.

I really agree with you on all of this and that's why it's important to focus on all of the people in the creative team. As long as you work as the head of the department contributing to a project, you are in the creative team and should have the integrity of that profession. An idea about a certain color by the colorist makes him part of the creative team. That's why I was happy to see that our national film awards gave a special prize last winter to one of our most experienced colorists in Sweden. It was a good way of praising the importance of that process and the mind behind it.

Also, on the topic of "who owns the work", bear in mind most media companies, when you sign as staff or even permalance, have contractual language that gives them ownership over ALL your creative work, even side projects you do on your own time.

With TV being in such turmoil, my guess is employees don't have much leverage, which is why this language/position is becoming more common place...

I've never seen a company claiming to own work you do in your spare time. The company doesn't own "you", it owns the work that you provide for them. If I make a short film outside of my usual job, that isn't owned by the company I work for. Other than that I usually pull off long-term freelance contracts to keep the freedom for my work rooted in common copyright laws.

But in a GRADING project...ALL the colorists techniques can be EASILY DEDUCED, REPLICATED, COPIED. Decades of experience can be copy and pasted.

Same for design. If a DESIGN company were to hand a client their massive AFTER EFFECTS file, they could be handing over years of proprietary design techniques, approaches, styles...all COPY and PASTABLE in 5 seconds.

But this is the whole reason why LUT's aren't really working well with a high quality project. People might think that it's copy/paste and do it all the time, but their stuff looks like shit. The colors aren't balanced for the specific shot and the mismatch between takes makes it even worse. This is the important thing... there are no copy/pastes if you work with high end projects. Yes, there might be low budget clients who do all kinds of bad looking projects, but high level projects can never survive on a copy/paste workflow. The knowledge isn't in what process they used, the knowledge is in their eyes, the speed and the ability to adjust to different situations, shooting styles, mismatches, file types etc. That's the base on which the colorist stand on and I've never ever seen less experienced people be able to bring anything close to a quality grade by using imported LUT's as final grades, magic bullet and so on. All of a sudden a client demand high quality and the "copy/paste"-guy can't deliver, the end for him and that contract.

 

[David Battistella]

It just sorted stuff out that way based on dates and the way i moved it! You yup. You started all this Christoffer!

David

 

[Eric Santiago]

Sigh I remember paying 12k USD for Electric Image.

Then watch the throngs of 3DSMAX users (mostly illegal use) over saturate the market.

Two jobs paid off EIAS so we bought a copy of MAX

Maybe folks shouldnt buy into anything that can easily cause remorse.

 

[Scott Crawley]

How is it that you were burned? Did your $1000 copy stop working suddenly? The way I see it the only way the company burned it's customers is if they sold you a product that was unable to do what they claimed. The only business that can really claim they were burned is a license reseller who got stuck with devalued inventory.

If the price went from $250k to $0 overnight the situation would be different because folks could rightly claim that theywere unable to bill sufficient amount to recover their investment but that wasn't the case.

How much do you figure you have to bill in order to recover your $1000 investment? I'm not asking your labor rate, or other overhead cost, just for the suite.

I should have been more specific: People INVESTED in copies of Resolve. Small business owners, struggling to get by in this economy. BM burned us at a BUSINESS level (granted, me for only $1000, others previously for much more). I think it says nothing good about BM that they would be willing to burn their paying customers so casually. Yes, technology gets cheaper and cheaper, but generally software holds its value, or comes down in REASONABLE, stepped increments that are predictable. How long have I been upgrading my copy of Photoshop CS2? I never felt burned by Adobe, even though the soft is a bit cheaper now.

 

[Eric Santiago]

Since BM is in question, I thank them for (almost) burning me back in the summer of 2012.
I pre-purchased two BMCC and waited like the rest of the lemmings.
Well come fall 2012 the BT Scarlets were announced and thanks to the BMCC debacle, I have had an amazing love affair with my Scarlet
Now back to the topic.
We all purchase into tech/lifestyles that at times end up being a huge buying remorse.
Part of life and def part of business.

 

[Bob Gundu]

Rob Ruffo's comments are from 2011.

 

[Scott Crawley]

Rob Ruffo's comments are from 2011.

Thanks Bob, I'm aware of that, but for some reason people want to continues talking about it. I'll bet that Rob has long since moved on so I guess I shouldn't be directing my questions toward him but to these others.

Who out there has still been unable to recover their $1000 investment from 2011? Anybody?

 

[Darko Gavrilovic]

If the people who continue the work after me aren't qualified, then why the hell did they pay me in the first place? I bring a quality control to the process by using hardware (calibration and screens) in junction with the software to guarantee that you get matched and good colors out of Resolve based on the end delivery.

Exactly. The way I look at it, it's the clients money and it's theirs to mis-manage any way they see fit. As long as I got paid and get what I invoiced for, I am happy camper. If I got hired to do something, and I get paid, and they got their files, and they then decide to go with some new grad intern who will work for next to nothing and produce new grad type stuff -- as long as my company isn't listed on the final product. My view is, they sure did waste a lot of money on an exercise in futility and I am glad it wasn't my money.

I've never seen a company claiming to own work you do in your spare time. The company doesn't own "you", it owns the work that you provide for them. If I make a short film outside of my usual job, that isn't owned by the company I work for. Other than that I usually pull off long-term freelance contracts to keep the freedom for my work rooted in common copyright laws.

It's usually rooted in the idea(s) behind "non-compete". It's common in creative industries. Should you do work on the side (or for yourself on your own) and it churns out money and/or any success - you can probably bet that the current employer is going to try to go after it based on the thinking (even if false!) that you stole ideas that you had access to while "on the job". This can be found all over the place -- even in media sales and research.

 

[Wayne Morellini]

This contains conjecture and speculation for discussion purposes, and not meant to be legal advice or to be depended on for legal advice. Read at your own risk and seek proper legal advice:

What is this crazy thread, where is the original post. I'm very interested to see what current copyright law declares as ownership.

Decades ago it was like this. Employment law cones out of servant master relationship law, which came fro surfdome law or slave law in other terms. The master owned your time, you couldn't even work for anybody else on the side. He also owned any work product you produced in or out of work hours. Terrible. So things have been changing, but the work ownership thing was sticking decades ago. Now contract law was different, it was considered a deal between equals. This is what various tradesmen used to work under. Now, this is under British common law, modifies by legislation. So it means less the further you get away from English law, and maybe little at all in Scandinavian states. Now we get conokex, what jurisdiction the deal and work is done, and probably stored, affects the lefals of it.

Under contractor law, the contractor, say an engineer, owned the IP in the product, the ip tools etc leading to the product, you just owned a single physical implementation of the product, not even allowed to open it to reverse engineer under dertain jurisdiction from memory. So in the contract the IP access or right is transfered in writing etc. But the courts where petitioned to give rights to the contractee for off job work and unrelated work from memory I forget which way the decisions a went.

However, I totally disagree that project files should not be covered as part of the work, as the work is a work in process, even when finished, it is often designed to he adjusted, or often desirable to be. That is how I would argue it in court. The software, tools, remain the property of their IP holders unless reassigned, but the other parts specific to the work become part of the work process. Now, any copyrighted part of the data that is a tool of interpretation of the work (a lut say) us not transferred but right of continued interpretation of the work should he transferred (meaning it is to be used only as part of the work). However, things like luts are normally not copyrightable, but things change over time and jurisdiction. It is a petty stand over tactic to hold them back.

Now as for filming, I guess, traditionally a contractor owned the IP of the work, and in this case that they filmed unless contracted otherwise. However, I believe correct just and reasonable application of the law should be that the one that contracts/pays for the work owns the finale new implementation IP and any transferrable license as part of that IP (not others IP involved. Which has to be granted separately). However, with the project files one is employed to make them as part of a derived work process. We have had enough of existing exploits in pictures to get money out of people and own the derived product to onsell.

Another issue is if I set up a shot and camera and somebody else presses the button they apparently get copyright for doing less than 0.1% effort, time and money. Like having part music echoing in the background and you loss all advertising revenue, no share, even though it should be under fair use in your favour. These are things that should not be.

 

[Ulf Krentz]

lol, actually I think it is very nice of BM to offer the packages as they are. I am happy to support them by purchasing that 1000USD license rather than just using it for free.

 

[Terry VerHaar]

Seems to me that a lot of the discussion here is about what people would like to be true but I'd question whether it is, or at least, whether it will remain so. Experience, skill, technique, knowledge are all important to the creative process and, for most people, take years of concerted effort to acquire. Historically, because this wasn't an easy process, clients - whether they liked it or not - had to pay top dollar for this.

But, fast forward and we see the situation like I described in my earlier post where the process is changing and, in my example, DPs are no longer the "magicians" that determine the look of the film but, rather, are tasked with gathering images that can be infinitely tweaked in post to develop the perfect look. Does that make the DP's job easy or irrelevant? No, it is just different.

With post, as in many creative endeavors, some of the same things are happening. The history of "desktop publishing" is instructive. Everyone thought it would kill the market for graphic designers but it just created a lot of really bad posters and flyers. However, it also gave a lot of talented people the tools to learn graphic design and practice the craft too become talented experts. But, taken to the next step, I can now open my copy of Pages or MSWord and pull up a template for 100 different graphical applications: sales flyers, brochures, posters, etc. For a lot of "clients" those templates wouldn't be adequate but for some, they will.

So what if we take this whole idea forward with film/video post and realize that, as a client, because of technology, I can have my cinematographer shoot raw files ("thick negative" style) on his RED Weapon. No DP to "muck up" my "look" - I get to decide that later. Then, after the edit, I can open the timeline in Resolve (or any other color grading capable NLE) and apply a look that I purchased from a third part vendor. - and tweak it to my liking (or have said "grad student" do it for cheap). As it stands today, there are may a few places to get these LUTs but we may very well see dozens of vendors with a cumulative number of available choices in the thousands. Like stock photos are today, color grading may actually be another area that becomes commoditized. Now, will Hollywood blockbuster films go this route? I seriously doubt it. But, will it take jobs away from the "second tier" level (no offense meant to anyone by this) professionals who aren't getting the Hollywood jobs? Very possibly.

We are all inclined to protect, defend and justify our own "turf." And, in a perfect world, no one wants to push others out of a job or a livelihood. But, I think we are becoming a society (particularly in the U.S., it would seem) that is inordinately focused on the bottom line and making "big" money. Couple that tendency with genuine financial issues of tight competition and thin margins and cut-throat business, not to mention greed, and you are left with an environment where cutting corners - like buying LUTs instead of hiring a colorist, will become prevalent. While taking a stand against this kind of model is tempting; and many will do it for awhile. If it is actually a trend, as they say, resistance is futile.

Disruption is all around us. Perhaps sadly, we are all faced with the choice of adapt or die.