Who owns the work? Copyright in 2016

[paulherrin]

nothing is free
everything is free

nothing has value
everything has value

 

[Wayne Morellini]

Expectation. I look for legitimate free stuff myself. There is also the self entitlement of earning very high profit off others of course. Free software is a free market competitive check and balances against profiteering and exploitation. However, I'm more for commercial open source to get good big things implemented, unless a collaborate industry effort like a standard freeware workflow tools. The industry could simply pool to buyout Avid to do it. I come up with schemes where there is a free version and more advanced paid version.

 

[Darko Gavrilovic]

I like the restaurant analogy Marc. It makes a lot of sense.

If a chef is a creative you pay for the result, great restaurants don't hand you a recipe card and a "how I did it" (equivalent to a project file) after you pay the bill.  Many of the best restaurants I have been too won't even let you walk out with a menu!

I dont think you can compare it to gourmet soup. This is all project based work. It exists in a dynamic that changes and has deadlines. What are the clients going to do, take the files and sit on them for 6 months and then what? Most people aren't very good at time management. Without concrete deadlines such as financial or team based deadlines, they will procrastinate. There is a big difference between going somewhere and getting the work done and completed and out of the door with a pro w/years of experience at your side vs doing it all yourself and mulching on it for months or even years sometimes.

 

[paulherrin]

good stuff takes time to grow
wounds take time to heal
thanks y'all

 

[Terry VerHaar]

Who owns what depends on the agreement. That's it. If I am contracted to produce a finished video, that's the product. If they want all the footage, fine with me but that's a different deal and is not implied. It needs to be explicit. If I'm shooting for hire, it's in the deal in writing. They own it, they get it all, usually on the day.

...

To me, this is never as simple as it seems. What happens when the client provided the talent or the location or other resources that were necessary to get the job done. While you may deliver only the finished piece, per contract - the next question is whether you really own any true "rights" to use any or all of the additional footage since the client's "expertise," knowledge, effort, activity were an integral part of the shoot. If you are shooting industry experts for a corporate client, to whom did they release the use of their images?

Not sure I am adding much here except to point out how complex and convoluted it can be to figure out ownership and usage rights, etc.

 

[David Battistella]

I dont think you can compare it to gourmet soup. This is all project based work. It exists in a dynamic that changes and has deadlines. What are the clients going to do, take the files and sit on them for 6 months and then what? Most people aren't very good at time management. Without concrete deadlines such as financial or team based deadlines, they will procrastinate. There is a big difference between going somewhere and getting the work done and completed and out of the door with a pro w/years of experience at your side vs doing it all yourself and mulching on it for months or even years sometimes.

I think it is always best if a facility or person builds a relationship that includes archiving and such. I mean, sure you can hand over the files, but who is actually cataloging that stuff, yes, it might end up in a box with a label on it at some point on productions with post coordinators etc, in a highly organised environment, with smaller clients it's always nice to maintain an archive for them.

We have to mention the budget level here, like client who pay full rate should always get full service. Its the ones that chisel for all the stuff that create resnetments. But it all comes down to agreements beforehand.

David

 

[Terry VerHaar]

Software developers like to eat, have families and own homes too. I think it is great that companies offer educational versions of their software to learn on. Even have trial software so you can try before you buy. But if you are going to do commercial work, and expect to get paid for it, you should pay for the tools you used to create your work. I think what BlackMagic has done with the free copy of Resolve actually crosses the line. It hurts other software companies in the same field.

Software is a bit different, though. Software is infinitely reproducible. If it is helpful and, thus, popular, one can become rich selling millions of copies -the only real limitation is the size of the market. If it only provides marginal value, it is likely to flop. Pricing of software is really about how much can you get (based on the value it adds) without starting to significantly impact your sales. If the value is there and the market is large enough, I don't think the different between $80 and $100 will substantially cut the sales. Comparing the software at $100 vs. $1000, there will be a substantial impact.

I think this is what companies like BMD realize. Once they determine that their market is a certain size - and the potential for post production software in the current business market is certainly substantial - they decided they would price it competitively so they could deeply penetrate that market. A free version is a marketing ploy - gather emails, give potential pro users a chance to develop expertise, understand your market better; it's a trojan horse (in a good way). And, as others point out, it may very well lead to hardware sales. Last but not least, it creates (mostly) good will in the marketplace - at least for potential new users.

 

[Nick Morrison]

It pretty much killed the music business

Whatz funny is the music biz seems to be doing OK today. One of my friends is a high ranking exec at a major label and says they are "doing well". The new normal are 50/50 contracts where label/artist split sll revenues equally...and where artists just record/perform music...and label handles everything else (PR, merchandising, planning tours, etc, etc).

Apparantly...seems to be working...at least at this one label...

 

[Hugh Scully]

Good for them. Maybe killed was the wrong word. I guess I was thinking more about the songwriters and musicians who need to tour tirelessly and sell their CDs and other merch at intermission to make any money at all because the deals for the "free" services pay them nothing. That's kind of what I was thinking about.

I don't pine for the days of the big record labels with the A&R guys and the crappy record deals, and there are great small ones that specialize in genres and do good things like Compass Records. I don't think they manage tours though. I'd like to see some of this in narrative content delivery

 

[Darko Gavrilovic]

I think it is always best if a facility or person builds a relationship that includes archiving and such. I mean, sure you can hand over the files, but who is actually cataloging that stuff, yes, it might end up in a box with a label on it at some point on productions with post coordinators etc, in a highly organised environment, with smaller clients it's always nice to maintain an archive for them.

We have to mention the budget level here, like client who pay full rate should always get full service. Its the ones that chisel for all the stuff that create resnetments. But it all comes down to agreements beforehand.

David

I totally agree. I usually do 6 months archive included where I tell them I keep it on my disks for that time. After that time there is an extra charge. If its a hassle to get to the data, I try to charge an hour. If its still on the disks and easy to find, I at least try to charge cost of a USB key. Not many people have ever come back asking for stuff.

 

[Tom Hamilton]

Seems a little different on the nat history side, unusual footage of very rare critters, or these days increasingly, ones on the brink of extinction, can hold high value for a long period of time. Although not always possible, I try to negotiate rights to the footage in a number of different ways. Stock footage libraries by some of the better shooters have been sold for many millions in the past, pays to keep at least partial ownership if you can.

 

[Björn Benckert]

I really don't know how I got into this debate.

But it seems like quite a few here, not only Jake thinks it´s very much so, that the colorist owns the resolve file. So to make a little comparison... who do you guys see as the owner of the FCP, Avid or Premiere file in the end? The guy who did the edit or the producer of the film? In my world the Edit Project file goes onto the source/project hard drive which belongs to the producer. And I think thats pretty much common procedure at least in Europe and the commercial and feature cutting world.

So why this difference in mentality between editing and and grading? Well, I think that is simply due to the fact that this industry adapts slowly. Producers still call the grading process "telecine" etc.even though it was a while ago most colorists where siting loading up film rolls on wheels of steels and struggled with Ursa, Spirit or Millennium 2k machines or even worse, like me the uber slow Domino and Genesis scanners. Back then the settings saved where very much tied to the gear used and shit swayed like nuts with lightbulb temperature etc. And it was not like the clients easily could take their stuff and run off to the next guy. As In my case I had the only domino in northern Europe at the time so I did not really have to price dump or such to make sure the kids in film school didn't steal the project from me. But as things is more digital and free now I´m pretty sure that more people than me will start to look very differently on grading.

Still I also totally see the points of IP ownership that Jake gets back to. We get those questions all the time when making 3D. Like now for example I work on a 3D cow commercial and early on, while in the bidding process, the agency had a demand to have "all used 3D assets delivered at project end". Well, for me that would mean that I would give away our in-house developed fur, rigging and texture plugins which is somthing that took my best guys over 10 years to program. So I then had to do some calculations and give the agency a quote for it all. I don't remember the exact number but I can only say that I was actually sad they decided to skip those files and settled for just rendered layers and no 3d setups.

I think the same approach could easily be applied to grading. Simply make up the deal before project start or why not set a price on that project file and I think no body will get hurt. Possibly you can put like a 6 digit price on it and then people would think that your special sauce must be really freaking special. lol.

But then looking forward...Now we have what? resolve 12?. and BM is improving the editing capabilities quite rapidly especially in the last updates and ofcourse all avid fans etc will says that BM / resolve will never make a competent editing tool. Well I think we all been a bit surprised with what BM has pulled of in the past with free downloads and so on. So I don't see it as to far fetched that they actually do manage to make resolve possibly not a premium choice for editors, but I think they soon will attract some. As BM has a lot of things going for them with resolves resolution and file format independence edl/xml handling, hardware acceleration, etc. and I for one actually think that they could poop out an upgrade that would be very much liked by at least some editors, possibly already in the next big update...

Then I wonder, how would you guys proceed then... If the editor edits in resolve... the producer then takes the project to have it graded... then would you as a colorist claim that the resolve file is yours / something the producer can not have back when the grade is done?

I might be wrong, but the above scenario is very much the workflow BM is aiming for. Not only that, I think even without a crystal ball we can see that BM will toss fusion / compositing into that mix as well... Then I wonder, who owns the project file? Do you honestly think it belongs to the colorist of all people?


All in all, the above, and the fact that the rest of the software developers follows BM with low cost subscriptions etc will most likely bring it all down to a level where it´s just artists. And I also think there will be far less costly calibrated screens pulpets and other tech for artists to hide behind. I think far more work will get it´s final grade done on 10 bit mac screens in the near future instead of the 25k USD dolby screens and all ready we know that nobody will use a 120k USD flame to do the online work as now, finally, autodesk followed the trend and offers Flame at 500USD/ month. even though they claim they still sell the more costly versions... And then Nuke Studio is as I understand is now free for persona and educational use and only ping home to the Foundry if you use it more excessively and also then the price is far lower than it used to be. And for sure next NAB they will all announce that shit just got cheeper by at least half.

So I think no matter how much we would like things not to change, things is for sure changing and it's very much an adapt or grow old kind of industry, now more than ever. Not saying it might be possible to still work like yesterday today, but a few days after tomorrow, I think not successfully.

All I´m trying to say is that in the future the grading process will be none destructive / meta data stuff, then for the colorist to hold on to that data is kind of the same as if the DP would lock the meta data in the shot files so nobody after him could change them... I think most colorist would agree that such DP possibly is not taking the best of steps.

But who knows what the future brings. Possibly I can open this tread again 2 years from now and laugh about how completely wrong I was about all of this. Nobody edits in resolve etc

 

[David Battistella]

Great post Bjorn makes a lot of sense.

Because I am in Florence I like to take things to a historical level. There was a bottega system here. A series of art factories that produced everything from, painting to ceramics to bronze, gold silver etc. here is one story to illustrate how competing it was and also how old this problem is.

Everything was about competition advantage over the next bottega. Who could mix their chemicals to get the best color bronze or the pigments to make the best colors. The people you hired got to know all of your "in house secrets" and how you did things. These secrets were closely guarded and protected.

Donatello is a great example. Once he had to carve a marble sculpture in the church where it was commissioned (I saw this piece just last night!) part of the deal was that he would construct walls around his work area and cover the top so tha no one could watch him work, to steal his technique, or to see his work in progress. Only two keys were made to the entry door, he had one and the other was held as a back up. He emulated his bottega on site.

Also so the apprentices were sworn to secrecy. How serious was it. Well, once an apprentice of Donatello decided to leave for another city in the middle of the night. Donatello asked the city to grant him permission to find the apprentice and when found, kill him, so that his secrets could not become know in other cities or bottegas. He was granted the permission, found the apprentice and instead of killing him "convinced" him to return to work in the bottega.

This is a rather long way to say that these discussions are not new, but also to say that (like the fur and rigging in your op) a lot goes into stuff you develop in house. If a guys uses a lot of unique techinique to accomplish finished product then that is where the value lies. That real value lies in the secrets or secret sauce and handing that over in a project file can mean hand over your edge.

Its the same with patents? Why protect an idea so that only the patent holder can profit? Can you patent how you color a shot? Maybe that is a stretch, but should red hand us a camera and all the plans that went into building it? If things are so easily repeatable, then the person doing it has no value, so the project file has no value in it. But everyone wants it so there is value there.

Again, there are many layers to this discussion, and I don't really fall on any side of it, but I am interested in hearing about how people are dealing with it.

I think you are right though, it all comes down to how these things are laid out ahead of time. Maybe the color isnt that important, or the edit decisions aren't that important and each aspect can be viewed as "non essential raw materials" like building material for a house, but there is a person attached to each one of those things and that is what makes it a bit more complex because they bring something to the process. They are paid to do that, of course, but to what extent do you own the finished product compared to the extent to which you own their craft and thinking.

 

[Marc Wielage]

I do sound. Client get all the files they want. It's all part of the project and they paid for it.

Not in LA, certainly not at a union facility. Walk into Sony Pictures or Universal or Warner Bros., mix a film there, and then ask for the Pro Tools session files. All they'll give you is the mix and the separate stems -- nothing more. Stems are enough to completely redo the session in many cases. The client (which is to say, the producers and director) are paying for the work... not the means by which the work is created.

 

[Freya]

In the UK there have been a lot of examples of people doing things in their spare time that have ended up in court and becoming the employers property. It's usually considered work for hire if you are a full time employee and the stuff you are doing is at all related to what you are employed to do, no matter how vaguely.

if you are a plumber who makes movies on the side then maybe you are okay.

 

[Wayne Morellini]

David, unfortunately patents have been stretched too many ways, like ip on a color.

Now Marc, we are talking about color balancing a film, it is part of the film process, not a product in itself so much. It is probably rather old protectionism than that the project files are sophisicated enough to warrant protection?

However, wuth the sculptir example it is under trade secret law these days. But say if your job is to move an item up a certain level. Don't matter if you do it in secret for trade secret, it is obviouse you simply moved it up to a lot of people, so that information about the 'level' adjustment is to simple. Niw with a film there are msny if these level adjustments, a pain ti suft through and adjust so the orojrct files sre convenient when you need to come back, but not terribly significant otherwise?

 

[Wayne Morellini]

Merry season to all you guys.

 

[jake blackstone]

I might be wrong. Possibly I can open this tread again 2 years from now and laugh about how completely wrong I was about all of this. Nobody edits in resolve etc

Yes you are wrong Bjorn.
I'm not sure why you're keep missing or distorting what I'm saying.
As i already mentioned, in VFX world all "roto masks, tracking data, depth mattes, rendered mattes as well as all other various elements now routinely part of the deliverables package for VFX". All those elements are work products, not methods. If your company developed a better algorithm for a realistic fur, fire, skin, etc, then no one can force you to hand that algorithm over, unless they specifically hired you for that specific purpose of developing better algorithms. But you will hand over the work product as a result of the use of your proprietary method. All that resultant DATA is valuable and it can be repurposed for other processes, like color grading and 3D conversion. It just makes economic sense to reuse those assets later on for other processes and producers realized that early on. And that is why they started to include that language in the contracts quite a while ago. By the same token, if producers asks for the mattes from the grading session, they will get it as a rendered pass. Personally I don't see much value in it, but whatever... When you're talking about a color grading session file, that is different from work products, it's a method, like your proprietary algorithm. Colorist's craft is not that complicated. What is complicated and difficult to reproduce is the experience. No two colorists will grade the same image the same way and their approach will be based on something, that they developed after many years of empirical testing. I may decide to hand over the session file, for a price. But it is my decision and it will have to be negotiated ahead of time. No one can order me to reveal my methods, pure and simple. Do you see the difference now?
And for some reason, you fail to even see why your argument is moot anyway. An overwhelming majority of high end colorists and post houses don't even use Resolve. So, if you ask me for a project, I may hand it over and then sit and wonder how you're planning to open a non-Resolve file on Resolve Besides, if the project includes some 3rd party commercial products, then I can't hand it over anyway, without further negotiations with the copyright owner of that material. In other words, you may think it's cut and dry- just hand over the project file, but I assure you, it's not. It must be negotiated before hand, as any other IP.

 

[Björn Benckert]

Yes you are wrong Bjorn.
I'm not sure why you're keep missing or distorting what I'm saying.
As i already mentioned, in VFX world all "roto masks, tracking data, depth mattes, rendered mattes as well as all other various elements now routinely part of the deliverables package for VFX". All those elements are work products, not methods. If your company developed a better algorithm for a realistic fur, fire, skin, etc, then no one can force you to hand that algorithm over, unless they specifically hired you for that specific purpose of developing better algorithms. But you will hand over the work product as a result of the use of your proprietary method. All that resultant DATA is valuable and it can be repurposed for other processes, like color grading and 3D conversion. It just makes economic sense to reuse those assets later on for other processes and producers realized that early on. And that is why they started to include that language in the contracts quite a while ago. By the same token, if producers asks for the mattes from the grading session, they will get it as a rendered pass. Personally I don't see much value in it, but whatever... When you're talking about a color grading session file, that is different from work products, it's a method, like your proprietary algorithm. Colorist's craft is not that complicated. What is complicated and difficult to reproduce is the experience. No two colorists will grade the same image the same way and their approach will be based on something, that they developed after many years of empirical testing. I may decide to hand over the session file, for a price. But it is my decision and it will have to be negotiated ahead of time. No one can order me to reveal my methods, pure and simple. Do you see the difference now?
And for some reason, you fail to even see why your argument is moot anyway. An overwhelming majority of high end colorists and post houses don't even use Resolve. So, if you ask me for a project, I may hand it over and then sit and wonder how you're planning to open a non-Resolve file on Resolve Besides, if the project includes some 3rd party commercial products, then I can't hand it over anyway, without further negotiations with the copyright owner of that material. In other words, you may think it's cut and dry- just hand over the project file, but I assure you, it's not. It must be negotiated before hand, as any other IP.

Sorry, I don´t mean to distort what you are saying.

I though this thread was about resolve but then the headline change. And you keep saying people aint using resolve and refer to other platforms, well you are possibly right. But I know for certain that we use it quite a lot and people we work with tend to use it even more and at some places I go it´s almost like a standard.

Regarding the third party plugins and other IP that you say can not be shared (still talking about resolve, not the other platforms) I have not found too many of those plugins that cost more than a few thousand USD and most are very much possible to buy straight over the web. So those things can usually be paid for and easily sorted if needed. But again, no doubt, if somebody does not want to play ball then its rather easy to be difficult and add some unique home made plugin that renders the whole project file useless for anybody else.

But for some reason I think the main thing here is simply that you do not want to collaborate in such way and again, as I said before, I totally respect that. And yes, of course like any kind of business deal the terms needs to be made up before the shit is tossed towards the fan. And also of course nobody can force you to sell anything that is yours and that you do not want to sell. Its all very basic stuff.

The way I work, I normally do not give away or sell VFX files, archive or any such. Our norm is to just offer master files and clean versions and nothing more. But again all is negotiable. But for logic reasons I try very hard not to promise to keep any archives of the work we do, simply because I can not give any warranty that I can open them in the future as upgrades and such are not always back compatible, discs breaks, tape formats gets old etc. And most of all it makes it easer for me to sleep at night as even if my office would burn down to the ground I would not be responsible for any lost of data or such. Same with discs I receive, I take no responsibility for them. That does not mean I do not archive my work or throw away clients discs, or does not have a big fat fireproof safe at the office. But if there would be a legal situation I rather stand without those responsibilities.


The other discussion here about employees not owning what they do in their spare time. I know it´s common practice on a lot of post companies and production companies to put in the contracts for their employees that they are not aloud to do any work that is competitive with the employer, if such work is done then they they loose the right to that work. For freelance staff things are of course a totally different not really possible to tie them up the same way. But I know of freelance contract that where made out so the freelancer could not work with the same client else place with a certain number of years etc which I both understand but also thinks is a bit rough. And for TV station I only know that for 20 years ago when I was employed by the Swedish government TV station I remember that they had a pretty rough contracts that would immediately terminate my employment if I did any kind of media work that they did get to approve beforehand, even probono work was under that clausul. So simply put they could fire me if I would edit anything else than their productions and they could even sack me for just being on a film set that was not theirs. Which by Swedish standards where quite rough or even according to swedish law at the time.

 

[Craig Parkes]

Jake's case seems to be two fold:

Using a free/ubiquitous tool attracts clients who expect you to give them more, for the same or less - i.e hand over the project file even though that may not be what you want to do. You can say no to this, but you may not get asked to do the job again for such clients - the whole process of which devalues your work as a specialist (people can modify your work after you have done it, which may see you get credited on work that is not up to your standards, they can do additional outputs without you QCing those outputs, which has the same potential impact, and they can also more easily reverse engineer your artistic techniques - which is bad for business when they also don't have to invest anything in getting and keeping up with the software involved.)

Not using Resolve simple solves these problems - And generally the sorts of clients that are willing to pay a lot for long form color correction are not going to notice the price difference between a colorists who uses resolve and one who use baselight etc - the savings on software still pale in comparison to hardware, infrastructure, staffing and rent (a properly calibrated room with DCP projector and good engineers outweighs software costs easily).

Not taking work where you have to hand over project files is a separate stance, that is further supported by not using Resolve.

Meanwhile, Bjorn is talking more often about short form projects which are VFX heavy, and my experience of this world is that such projects often require a myriad of changes at short notice and revisions further down the line (TVC's).

I know in his world, a spot is never done. It might be finished and delivered, but it could always be reversioned - and having to go back to the same freelance colorist to make a minor or major change because he doesn't have the project file is likely a non starter - he can't say to a client 'No, I can't make that specifc change to your very expensive commercial this month, because a freelance colorist is busy on another job and I don't have access to the project files'. I imagine often in his world of tightly controlled high end VFX commercials the sorts of tweaks he may need to do in the intermediary grade before VFX integration are completely vital to delivering an end product up to his standards.

While in principal these may seem to be mutually exclusive stances - the reality is that they are mutually exclusive generalizations based upon the sort of work involved and the nature of clients. If Bjorn was to hire Jake - I am sure Jake might change his stance if he feels he's being fairly compensated for his collaborative effort - but he may also simply say 'no' because it may be too complicated to determine what would be fair compensation if he genuinely thought that they way he skinned the cat in terms of color correction was valuable enough i.p. to not share, regardless of price.

My take is it's never reasonable to expect a freelancer to give you any info about how they are creating their deliverables unless you contract them to do so in the first place. Communicating up front that you will need the project files delivered seems mandatory if you do, expecting it seems abnormal to me if you aren't providing the software and equipment for them to work on.

Copyright law as such holds no sway here, because irrespective of the work being done - you can only expect to be given the deliverables you have contracted to get - if you don't have a contract saying you will get project files then why would a freelancer hand them over, and there is no way that anything generated in the process of creating a 'work' (as defined under copyright) is automatically to be revealed to the end copyright holder without strict contract language saying so - otherwise VFX houses would all automatically be owned by the studios that purchase the work off them.

Now, if the freelancer is working on your equipment and your software and you have contracted them to work for 'x' hours to produce a certain end product under those conditions, then they'd have no reason to expect to own the project files - the means of doing the job is entirely dependent on your facility's equipment - but again, it's contract law not copyright law that should determine that then.

After all, if you hire someone to push buttons, and the end up creating art - then legally in most territories you are obliged to have a contract in place stating you will own that art at the end of the process otherwise all you really can be certain of is what you hired them for (to push buttons).