Who owns the work? Copyright in 2016

[Björn Benckert]

I have done work for Dreamworks quite a few times (and spent a few days on War of the Worlds​ with Spielberg's editor), and they never got any files -- only the results of the files.


I think any work agreement should have or at least imply a "good faith / best effort" clause where both sides agree that every effort will be made to do a decent job and serve the client. VFX is not necessarily more work -- I know of cases where a VFX artist worked on a project for a week, while I was stuck on the project for 2 months. There's a lot of "it depends" involved; not every project is Lord of the Rings or Star Wars.

The key is that the client shouldn't be hobbled or prevented from finishing their projects on time. But to take this to the logical end: I know of a major, major post house in LA that makes their clients sign an iron-clad contract that basically says, "you may not take this project to a competing company and deprive us of the work." Basically, once you commit to them, you cannot leave. You can change artists, you can move around different employees, but you can't take the job to another company. And it's basically in the top 3 or 4 companies on the West coast. They did this because they had a few early jobs that left them in the lurch after they spent weeks trying to satisfy the clients, only to have them yank the project and take it elsewhere at the last minute.

This is in the case of feature films. For episodic TV and commercials, I think things are a little looser and projects do occasionally bounce around. But even then, project files are not shared between companies. They are sometimes shared within a facility, so if "Joe" in room 2 takes over a project that I started in room 5, it's all in the family. No big deal -- he finishes a job I started or vice-versa. But they don't get to keep the file. And that goes for color or sound mixes.

To add to that scenario of large LA VFX feature work is that they do, sub contract a lot of the work out to smaller posthouses, those are very often contracted with all assets and even all all assets availble trough the process. In such case those smaller post houses are pretty much hired on the same terms as a solo freelancer and then files for sure can move. Never done such work but we where bidding on such a few years back, yes more contracts and such in circulation then when doing commercials, no doubt.

 

[Björn Benckert]

You should have followed your own promise Bjorn and stayed quiet, as you promised. But, i guess, breaking promises is nothing new to you.
You can try to parse your words anyway you want, but actions speak louder, than words.
So, these are the facts, so go ahead and sue me for libel. Good luck with that.
You stated, that someone in your office "created" these LUTs. Nowhere did you say they were LUTs from AD, until I mentioned it. You had contacted AD about distribution of LUTs NOW, but did you bother to contact them back, when you posted them? You yourself admitted, that "it's likely, so that its wrong to share them over my server.". So, at that time you distributed them, you knew, that it was likely wrong thing to do and yet, you still distributed them And when I pointed out the fact, that "your company's developed LUTs", weren't really yours, you just ran for the hills, leaving Juan holding the bag. Yes, actions speak louder, than words, Bjorn.
Let's move on to your second inflammatory statement. You posted this:
"The other scenario is that I get a disc with graded dpx files and ungraded source clips. When we get that we do have a plugin called "Copy Grade" it simply extract the grade and turn it into a 3D lut from checking the difference between two frames of source and graded source. Ofcourse splines and such does not carry over but it has a little rectangular select box so with a few alterations it usually very possible to get good enough copy of the grade. But that approach is more messy and again I rather have the project file, so that is what I´m buying.".
Let me translate it for you Bjorn.
I demanded a Resolve project file, so I could re-use previous colorist's work and possibly get paid for it, but the colorist was "difficult and not a team player", so I couldn't get it. I then used whatever technical means necessary to extract his/her grades anyway. Call it whatever you want, but it is not VFX work. That is a knowing misappropriation of someone else's work.
Moral values have no geographical boundaries, Bjorn. First it was bad English and now you're using some rumors about someone else's actions from another country as justification to act like... well you...
You can continue to try to rewrite the history and keep explaining away your business practices, but frankly, i feel I have nothing else to add to this subject. I'm going to bow out of this conversation. And unlike you, Bjorn, i'm intending to keep my word.

This is nuts.

I never stated that we created those luts. we made cube luts from those discreet luts which I posted a link to on this forum, as there where somebody that could not use 3DL luts in what ever application they used, premiere, nuke, resolve I do not remember. So the only thing we created was a different format of those luts. And at the time I was under the impression from reading other forums that the luts in question where free to share, people been discussing them with DL people involved on other forums.

Also we have a bunch of other print luts, koji luts for example which I find to be much better as they got more depth. But those, as one example, I would never share as they are to be bought on the koji web page.

Anyway, then yesterday when you jump at me with your furious anger I realize that, no I don´t have any documents or such that says I can share DL luts. So of course I then think that possibly it was not the right thing to do, as I also wrote here... But yes, Stephane confirms, it was ok for me to share them.

But then also, it goes without saying. IP for film emulsion luts is a strange thing. Basically they are digital carbon copies of film print stocks and that kind of makes them a IP conflict on its own. As if you make something, name it kodak and then then even add a emulsion number to the name... And also try to mimmic the color science that took kodak 100 years to develop... Well then its easy to understand that you stand on Kodak IP land and need a license from kodak to do so, no matter if you give it away for free or not. What I mean is the only ones that could sell or share something like that is Kodak them selves. But I know Kodak also shared their luts back in the days to any one how asked.

Possibly they then did not even think they would be used only for viewing and to create the digital TV copy so it mached the cinema print etc. But then again does anyone have such clearance from kodak? I doubt that So if right should be completely right. I would guess you only are aloud to use anything that is named kodak or have a film emulation number in the name if you print your stuff onto celluloid in the end.

Even mimicking a film look by "eye and hand" by changing curves adding a bit of grain etc, is what? Well in a way it´s IP theft. So if you even say this is my "ectacrome look" when you sit and grade red material or such you kind of made a IP theft from kodak allready.

But please do not make 20 posts where you hang me for this theory, as it´s only me speculating. I´m got very marginal law studies so I could be wrong on all points.


Then this.... Me running to the hills and Juan left with a bag? I missed that part at the time, saw much later. Yes as you write I should have paid attention and I should have stood up for Juan.... But you must also realize that would actually be standing up / protecting him from false accusations from you, nothing more.

And again this stuff below that you write as an assumption of how you see me think, act and work is just nuts. Im much worse, no I´m joking.

"I demanded a Resolve project file, so I could re-use previous colorist's work and possibly get paid for it, but the colorist was "difficult and not a team player", so I couldn't get it. I then used whatever technical means necessary to extract his/her grades anyway."

And I´m sorry you did not like my Fincher story.

 

[Nick Morrison]

Guys. Deep breath. You're both fantastic individuals, and supremely talented. I'm almost positive there's some level of miscommunication here - simply at times because of language?

I suggest you take a 72hr break before posting again!

In the spirit of mutual admiration, I urge you both to walk way...you're points already made...and essentially "shake on it"...and agree to disagree.

Ok?

Yours, with much respect,

Nick

 

[David Battistella]

Seeing as at least one user sees this thread as "undermoderated" i thought i would just chime in again to let you know im here and im reading the posts.

We so often get crapped on for sensorship that i wanted to let two professionals have the discussion and althought that discussion is heated i felt it could serve all of us in a higher idea of exploring workplace and client/freelancer/producer collaboration.

We dont need to get into libel and name calling and i do understand wanting to reply to such accusations.

Beyond that. Its the holiday season. A good time to step away a minute and reflect.

IP is an interesting topic that does need to be discussed by professionals and espescially in a virtually unregulated international industry.


So, hug a loved one, walk a dog, have a drink or do a yoga class and maybe return with a fresh perspective.

 

[Wayne Morellini]

Nick, a week off like I suggested, and a reread to see what they think.

David, I don't see unmoderated, in the last 20 or 40 posts, but I did mention what normally happens. Sure there are a lot of things that happen with moderation without a sorry or retraction in sight, but in this case with people spiralling out of understanding and things going around in a slanging match such things should be cooled off. I think it is preferable, but never seen it done, to bring clarity to misunderstandings before this and if a party wants to continue to misunderstand in a very disruptuve way then come down on it. This requires reading everything to understand abd clarify, and noting who is misunderstanding what and how, then clarifying. Instead moderators usually jump to their own misunderstandings and jump on the victims sometimes, sometimes only the victims. It's not necessarily what a moderator does around here that matters, but how they do it. So to speak.

I've had multiple times when people fundamentally challenged in understanding (or just mischievously) just non stop would not get it, and you have to wonder what is going on. But people seem to get into rut that is self reinforcing. I don't know if this is because of a lack of sleep or what, but it usually just results in a hair pulling waste of time and I give up. Was just going let these guys nuke each other, enough had already been said to calm the situation. I might be in a flamboyant mood compared to the 99.99% usual for me, but I know when to call it quits and calm it if I was to be flamboyant in a situation like this (but remain truthful). However, this has been getting intellectually brutal enough.

 

[Michael Tiemann]

I've been watching this discussion with interest (and occasional disinterest) and have perhaps fresh perspective that comes from the audio world.

The audio process of tracking, mixing, and mastering is somewhat analogous to shooting, editing, and grading. There's definitely a perception among some that "if you mix it right, you don't really need a mastering engineer", just as we've seen in this discussion "if you shoot it right, you don't need any magic in the final grade". At the same time, there are great mastering engineers out there who do an album a day, every day, year after year after year. And the funny thing is, they are receiving those albums from top mix engineers all over the country.

For years, the industry has been selling "mastering in a box", be it hardware or software, as if mastering decisions are simply a matter of following a simple algorithm. I would contend that only the most hopelessly bad mixes can benefit from such automatic treatments. Mastering really great mixes--where each song expresses its most powerful truth as exquisitely as possible--is an art, because getting each of these unique artifacts to play well together is not an easy thing.

That said, services like Spotify, which dissolve albums into individual songs, do destroy one of the fundamental premises of the mastering engineer (namely, to create a coherent whole from a series of diverse gems). So there's all sorts of pressures coming from all different directions in terms of mastering.

I'd also like to touch on the topic of so-called IP. The term "Intellectual Property" is, at least in the United States, a mirage created by lawyers and lobbyists. The actual US codes define and regulate trade secrets, trademarks, copyright, and patents. Treating all four as part of a grab-bag called "intellectual property" is convenient, but it also leads to all sorts of confusion, because the means of creating, maintaining, and enforcing one of the four is entirely different than the other three. Indeed, I think that much of the underlying talking-past of this thread is the result of the assumptions about what "intellectual property" might be, and how it might be "enforced" (as if). There are certainly ways to create and enforce trade secrets. There are equally valid (but totally different) ways to create and enforce trademarks, patents, and copyrights. Beyond that, there are certainly ways to contract work, protect reputation, etc., etc. But it is better to be more specific about these particular elements than to lump them all together and say "That's my IP!"

Now back to audio...every year there's a story about how an artist misappropriated something from another artist. Lawyers, judges, and juries each have the most surprising ideas about what copyright does or doesn't protect, as well as what copyright should or should not protect. Should Taylor Swift be able to sing "Hater's gonna hate?" Or is that line such original poetry that despite being part of the pop-culture lexicon, the singing of such a lyric in a song requires permission from Jesse Braham? That was, until a judge ruled in the case, a $42M question. But back to mastering...it is quite common practice for mastering engineers to use albums as references. No copy of a single sample of audio is made. No quotation of any lyric is made. Nothing that copyright can protect is ever infringed. But the reference informs "how loud should the guitars be relative to the drums" or "how much should the vocals be pushed up or pushed down?" in order to make the subject album fit within a style or genre. This is not unique to music: people have been mimicking Faulkner and Hemingway for fun and profit for years. And as much as the estates of those two esteemed authors may hate it, it's fair game. Great mastering engineers also help albums find the balance between the artist's unique expression and the basic norms of the market in which they are trying to compete. To bring this back to coloring, it's the difference between crafting a specific look for a summer blockbuster (which may, ultimately, fit within the realm of teal-and-orange) and just automatically applying "the teal-and-orange" LUT that comes bundled with your favorite NLE.

I do think there is a trademark claim when somebody creates a LUT and says "I've created a LUT for Kodak Filmstock XYZ". But I also think that things get very muddy very quickly when one starts to talk about copying grades (whether from memory, by eye, by algorithm, or even by using a project file). That's not to say that it's invalid to make an agreement about what's fair game and what's not--indeed it's precisely why such an agreement should be made! But we should not lose sight of the fact that beyond what the law stipulates are the competing pressures of the comfort of industry norms and status quo vs. the challenge of innovation. The healthiness (and fairness) of that competition is what helps the industry thrive.

I hope this injects some worthwhile points into the discussion. If not, my apologies!

 

[Wayne Morellini]

Thank you for clarifying your position. It seemed you were suggesting that because the Colorist does less work (as you see it) that it was somehow OK that he be pushed into an agreement that strips him of his rights to his work. It didn't square with my impression of you, so I found the idea confusing.

I don't mean to break balls here but I do still take issue with the idea that VFX is more work. It can be but it is a gross generalization that again in context, seemed to suggest that it was therefore of greater inherent value. The project files we are talking about could conceivably represent the same number of work hours and in such a case might be of similar value.

I am relatively confident that you would agree that artists of each discipline should have the same right to be compensated for the hours they put in, to exercise rights of ownership and have equal opportunity to capitalize upon their own work. Yes?

Well yes, but I think the line is drawn at the wrong position that is all.

I do think that VFX involves more artistic forming and sculpting than grading and is more work per unit of frames the VFX is on, but this is especially in 3D animation.

 

[Med D]

That said, services like Spotify, which dissolve albums into individual songs, do destroy one of the fundamental premises of the mastering engineer (namely, to create a coherent whole from a series of diverse gems). So there's all sorts of pressures coming from all different directions in terms of mastering.

I actually think Spotify tends to encourage complete album consumption. As Spotify is all-you-can-eat, there is no added cost for listening to a full album, and songs are presented in album form so it is not hard to find or play the whole album. That is as opposed to iTunes, where the hit single is only $0.99 but the full album is $9.99. With iTunes I think the norm is to consume singles, I don't think the same is true of Spotify though. And to make the mastering guy even happier, Spotify can stream in 320kbps -- also at no added cost.

 

[Dermot Shane]

ummmm... so... my mind goes back to a situation where i had copyrighted filmout LUT's in the project, and i am not allowed under the terms of service + the NDA to hand that over to Bijorn in any case

if he really wants to reverse engineer a look, ihe knows it's only got a single window in it and where the window sits roughly... .t's dead simple, really dead simple... and yes there are tools out there today that will do that for you pretty well, but they are not avb in free software like Resolve, so pull out the cheque book.... or learn to do it with your eyes, scopes and common sense.

I still don't hand over project files until they are zipped and passworded, no problems with my client base over that one ever, really other than bonded shows no one's ever had a reason to ask.

i often do MoW's with the production sending me a DRP + media pool, i grade and round trip out, sending an XML + graded media back, when i am asked to do a revison, like Marc said - it's not a problem to add a existing grade to a new shot or two.. producer's know that's how i play, so there's a decent level of trust both ways.