Over the winter I filmed and edited a short promo film for a "friend" who owns a bar. He payed me for the service. No paperwork/contracts. He did ask if he could have the "raw" footage, and if he could take it to the local cable access channel to have them edit a promo as well. I said yes. We tried twice getting the footage to him. He had it in his possession on a hard drive yet never transferred it to his computer. We are in possession of it now.

Time goes by and I find a link on a Facebook page to the "new" commercial on the local cable access channels website. My finished product which had my business name on the front and back of the film, had been re-edited into a 30 second spot, which is being shown on the website under the title, "Samples of our work". I contact my "friend" and he says he will take care of it….that they shouldn't have it under samples.
I call the TV station myself, they say that some of their footage is mixed in…i say no there isn't. He says it's customary that they take footage from someone who provides it to them and put together commercials, and that i need to get with my "friend".

So….any thoughts?

Hi Don, as I read your post .. if your friend paid you for the original footage, and with no contract saying otherwise, then he owns it and can do whatever with it. But he should always give you a credit for shooting it.

But if he says he's not interested in any further involvement .. let it go. Any proceeds from litigation will go to the lawers and you'll be on the outer with the TV folks and 'your friend'. And it'll get around.

But .. you could ask for a credit from the TV channel, if .. you can show them the original footage they used a copy of. Show them other stuff too, you might get some work. Be positive and good luck.

Cheers.

Not sure how it is in Australia but in the US it is actually the opposite of what Allan said. Even if your friend paid for the video, if there is nothing in writing to state otherwise, as the "author" you own the copyright to the asset. In order for you to give up those rights you either have to be an employee where making the video would be considered a part of your job, you have an agreement in writing that says the work was done as a "work for hire", or you sign over the copyrights in another instrument.

You do have the right to give a cease and desist to the cable company. Even if they did mix in some of their footage they cannot use yours without your consent. Now, that would probably be the end of your friendship but you do have that right. Now, if all they did was to take the raw footage, do a complete new edit, and put that out, they could have the right to do that so long as they had the rights to the original footage. Again, you shot it. And without any instrument to give up your copyrights, you have the right to control the usage of that footage.

Since there were no written agreements between you and your friend it would come down to a he said she said. And that means it will become a decision based on what is customary and reasonable. In this case it would most likely be interpreted that your friend paid you to produce a promotional video and that he has the right to show that video to promote his business. He does not have the right to re-edit or modify the video without your consent.

However, as Allan said, you may have more to lose by fighting the cable company but I would send a notice to them no matter what to document that they have infringed on your copyrights.

Good luck,
Garrett

Just a question, but if he does not have the right to edit or modify how would he have the right to display ? It seems to me that the footage would either be owned or not. I can not think of a situation in which delivered footage can not be edited.

There is a commercial law in Florida that states "a verbal contract is considered binding when partial or full payment is made or partial or full delivery a product is made". I would think he owns the footage after paying for it and could do what he wanted.

You were paid for your work so what is the problem ? It may be possible to do more damage here, If someone is claiming it to be their work I see your point, if not, be pleased that your footage has been aired.

Hi Don, as I read your post .. if your friend paid you for the original footage, and with no contract saying otherwise, then he owns it and can do whatever with it. But he should always give you a credit for shooting it.
....

Just a question, but if he does not have the right to edit or modify how would he have the right to display ? It seems to me that the footage would either be owned or not. I can not think of a situation in which delivered footage can not be edited.

There is a commercial law in Florida that states "a verbal contract is considered binding when partial or full payment is made or partial or full delivery a product is made". I would think he owns the footage after paying for it and could do what he wanted.

....


Seconding Garret's post, I would be very surprised if Australian copyright law differed signifigantly from the US and Canada in regard to copyright ownership - we're all based on the Berne Convention. By law the default copyright to a piece of intellectual property belongs to the person who creates it and the fact the creator may have been paid to create it doesn't change that. The exceptions to this are works created by a bona-fide employee acting within the scope of his regular job assignment and works created as a 'work-for-hire' pursuant to a formal written contract, signed by both parties prior to commencment of work, that explicitly states the work to be created is done as a 'work-for-hire'. No written contract, no work for hire. Further, transfers of copyright to another party by a copyright owner MUST be in writing, verbal agreements are not valid for that purpose. (Don P - Copyright ownership falls under Federal jurisdiction, not state, and the Federal copyright statutes explicitly mandate transfers be in writing. The Florida commercial law you cite deals with verbal contracts, irrelevant to the issue of ownership of the footage.) The fact his client paid for the video does NOT make Don his employee, even temporarily. When the client requested that Don make the video and paid him his fee to do so, what he received in return for his payment was a license to use the resulting intellectual property for the agreed upon purposes ... he did NOT receive ownership of the copyright unless Don subsequently transferred it to him in writing. Ownership of copyright remains with Don and he has the absolute right to control uses of the footage falling outside the scope of his original agreement with his client, whether those uses are by a third party or even by his client. If I'm contracted to shoot an employee training video for you, you do not have the right to lift out a clip and use it in a television ad unless such usage was explicitly allowed by the original or subsequent agreement.

Sometimes what appears to be a "problem" is really an opportunity, if you look at the situation from a different perspective. Maybe you can arrange a cordial meeting with someone at the cable company, and establish a new contact within that organization.

Oftentimes, a good contact is far more valuable than the footage. People in business, including employees of the cable companies, are always looking for someone who is good to work with, and useful to them, and not out to "stick it to 'em." Who knows where a good contact can lead? Even with people changing employers, they still tend to want to continue working with "vendors" they feel comfortable with.

Sometimes a small short term loss can lead to a valuable long term relationship. Not every issue has to be approached from a confrontational perspective.

This is very strange - 75% of my work comes from assigning my copyright and control to the client who commissions it? I have a choice of retaining copyright and effectively 'renting' the end product to the client, perhaps in limited territories or for a limited period, or I can assign the copyright in it's entirety.

It depends on what the agreement actually was. The requirement for written contractual agreement doesn't, I believe, apply everywhere. The important feature is that they cannot take the copyright unless the transfer is agreed to. In the situation we're using for this topic, here in the UK it's pretty likely that a court would accept that transfer did indeed happen.

I've not got an issue myself - one of our products appeared on one of the higher number satellite channels - with our top and tail missing, edited into a new programme - we were adequately paid for the production, and although a credit would have been nice, I didn't feel we had any grounds to complain.

Not sure how it is in Australia but in the US it is actually the opposite of what Allan said.

Not so. If your friend paid you to create it, this is an assumed work-for-hire.

This is very strange - 75% of my work comes from assigning my copyright and control to the client who commissions it? I have a choice of retaining copyright and effectively 'renting' the end product to the client, perhaps in limited territories or for a limited period, or I can assign the copyright in it's entirety.

It depends on what the agreement actually was. The requirement for written contractual agreement doesn't, I believe, apply everywhere. The important feature is that they cannot take the copyright unless the transfer is agreed to. In the situation we're using for this topic, here in the UK it's pretty likely that a court would accept that transfer did indeed happen.

I've not got an issue myself - one of our products appeared on one of the higher number satellite channels - with our top and tail missing, edited into a new programme - we were adequately paid for the production, and although a credit would have been nice, I didn't feel we had any grounds to complain.
If you choose, as a matter of business policy, to assign copyright to your client upon payment of your fee, that's certainly your perogative. It might make very good business sense from a competitive standpoint to do so. For example, a wedding shooter might choose to transfer all rights to the couple upon payment of their bill. OTOH, it might not. If you're shooting advertising the fees are often based in part on the size of the target market where the ad will run - an ad to be run locally is far less expensive than the identical ad to be run nationally. Giving the client copyright means he can do what he wants with the product while retaining copyright give you on-going interest and your client who originally had you make an ad for the local market can't take it national without paying for the upgraded license. But we have to be careful about blanket statements of "if the client paid for it they own it" that have appeared in this thread, suggesting that it somehow automatically happens. That is the issue I have been addressing in my posts. What happens automatically is the creator owns the copyright. Something else has to happen beyond simply paying his bill for the client to receive ownership, and at least in the US, that something else must be in writing.

Don, here's what you said: "I filmed and edited a short promo film for a "friend" who owns a bar. He payed me for the service. No paperwork/contracts. He did ask if he could have the "raw" footage, and if he could take it to the local cable access channel to have them edit a promo as well. I said yes."

In your own words he paid you for your work, you gave him the footage and said he could take it to cable access for them to use. He can do what he wants with it and you need to chalk this one up to experience. Even when you do things with friends you should get a written agreement of some sort. I always do. They appreciate my professionalism and there's no whining later.

In most of my work, I shoot material, and somebody else does things with it. I rarely see the end products - most goes into an archive for legal reasons, and some gets used for promos - but most of my work is actually very job specific material, so probably wouldn't be that useful. If they pay me, I give them the tape or card and we call it a draw!

The copyrights are very specific for artist, there are guaranteed rights and rights that occur reguardless of circumstances. It envolves contracts and releases and is the type of thing best done before any shooting occurs. My original answer was specific to the situation. No contract, verbal agreements and all kind of probable outcomes from a miriad of possibilities. My suggestion still stands, lick your wounds, learn from it and go back to work.

In most of my work, I shoot material, and somebody else does things with it. I rarely see the end products - most goes into an archive for legal reasons, and some gets used for promos - but most of my work is actually very job specific material, so probably wouldn't be that useful. If they pay me, I give them the tape or card and we call it a draw!

In that case you probably would be considered to have a work-for-hire relationship with the party hiring you. There's a difference between acting as a camera operator, doing the technical task of operating the camera's controls under the direction of the program's producer in order to capture the raw footage, and being the one who is the creative producer, the author responsible for creating the intellectual content of the completed video work.

D
In your own words he paid you for your work, you gave him the footage and said he could take it to cable access for them to use. He can do what he wants with it and you need to chalk this one up to experience.

I think the REAL issue here is that the TV station has it posted on their website as an example of "THEIR work", which the editing could be argued to be but I'd suggest this is somewhat misleading to persons looking at the website who would (rightly, one could argue) ASSUME that all aspects of the program were the product of the station. Those of us in the business understand that there are MANY ways that a project can be put together. A layperson may well assume that the party advertising the product as their own was the sole or leading agent in the production.

Legally entitled to? Perhaps. Misleading? Well....

Not so. If your friend paid you to create it, this is an assumed work-for-hire.

Christian, your statement is the exact opposite of the Works Made for Hire section of the copyright law. Unfortunately the Library of Congress website is down right right but when it comes back up you can look up the actual written section. However, it states that in order for the work made by an independent contractor to be considered Work For Hire, three specific conditions must be met:

"1. the work must be "specially ordered" or "commissioned." What this means is the independent contractor is paid to create something new (as opposed to being paid for an already existing piece of work); and

2. prior to commencement of work, both parties must expressly agree in a signed document that the work shall be considered a work made for hire; and

3. the work must fall within at least one of the following nine narrow statutory categories of commissioned works list in the Copyright Act:

(1) a translation, (2) a contribution to a motion picture or other audiovisual work, (3) a contribution to a collective work (such as a magazine), (4) as an atlas, (5) as a compilation, (6) as an instructional text, (7) as a test, (8) as answer material for a test, (9) or a supplementary work (i.e., "a secondary adjunct to a work by another author" such as a foreword, afterword, chart, illustration, editorial note, bibliography, appendix and index)."

The above was copied from this website:
Work For Hire (http://www.copylaw.com/new_articles/wfh.html)

While not verbatim of the copyright statute it is very close and conveys how to create a work for hire. Point number 2 is a very important requirement. If nothing has been agreed to in writing, prior to the commencement of the work, it is not and cannot become a work for hire. Without a written agreement the assumption is that it is not a work for hire.

Again, this is for an independent contractor.

-Garrett

Not sure how it is in Australia but in the US it is actually the opposite of what Allan said. Even if your friend paid for the video, if there is nothing in writing to state otherwise, as the "author" you own the copyright to the asset. In order for you to give up those rights you either have to be an employee where making the video would be considered a part of your job, you have an agreement in writing that says the work was done as a "work for hire", or you sign over the copyrights in another instrument.In the UK (& I suspect in Australia too as their system derives from British jurisprudence) a contract does not have to be written down to be valid. Whether this was a "work for hire" (a definition only under US law I believe) or the copyright was assigned it is perfectly possible for a verbal agreement to suffice. It is of course a lot more difficult to prove what the actual agreement was which is why writing down details is always a good idea whether it is a signed contract or not. A brief note confirming the verbal agreement would be enough.

Statutory Definition
Section 101 of the copyright law defines a “work made for hire” as
1 a work prepared by an employee within the scope of his or her employment
or
2 a work specially ordered or commissioned for use as a contribution to a
collective work, as a part of a motion picture or other audiovisual work, as
a translation, as a supplementary work, as a compilation, as an instructional
text, as a test, as answer material for a test, or as an atlas, if the parties
expressly agree in a written instrument signed by them that the work shall
be considered a work made for hire. For the purpose of the foregoing sentence,
a “supplementary work” is a work prepared for a publication as a secondary
adjunct to a work by another author for the purpose of introducing,
concluding, illustrating, explaining, revising, commenting upon, or assisting
in the use of the other work, such as forewords, afterwords, pictorial illustrations,
maps, charts, tables, editorial notes, musical arrangements, answer
material for tests, bibliographies, appendixes, and indexes; and an “instructional
text” is a literary, pictorial, or graphic work prepared for publication
and intended to be used in systematic instructional activities.

In the UK (& I suspect in Australia too as their system derives from British jurisprudence) a contract does not have to be written down to be valid. Whether this was a "work for hire" (a definition only under US law I believe) or the copyright was assigned it is perfectly possible for a verbal agreement to suffice. It is of course a lot more difficult to prove what the actual agreement was which is why writing down details is always a good idea whether it is a signed contract or not. A brief note confirming the verbal agreement would be enough. In general what you say is true of verbal contracts in North America as well ... they're generally valid and binding. HOWEVER, there are certain statutory exceptions to that general rule and one of them is assignment of copyrights where the copyright statute explictly states that transfers MUST be made via a written instrument. So before you actually count on a verbal agreement being sufficient to transfer copyright, you ought to check the actual letter of the law in your country, it might be an exception to the rule there as well.

Just as an aside, another case where verbal contracts are not valid or binding is in purchase contracts for real property.

I call the TV station myself, they say that some of their footage is mixed in…i say no there isn't. He says it's customary that they take footage from someone who provides it to them and put together commercials, and that i need to get with my "friend".

So….any thoughts?

Again, getting back to the original post made by Don. Don, what are you looking to gain from the TV station? You may have an opportunity to establish a valuable working relationship with the station, provided you speak personally with the right person. Is the dollar value of the footage worth more than the potential value of a good relationship with the station?

They already liked your footage enough to use it. Maybe they'd like to work with you in the future. Maybe you'd like to work with them. Maybe it's a simple misunderstanding, someone at the station not doing their job right. It's quite likely someone in authority at the station would be quite concerned about the impression, that they've ripped off your footage. They are concerned about their reputation. Any business needs to be. If it were me, I'd see if I could turn the problem into an opportunity.

In general what you say is true of verbal contracts in North America as well ... they're generally valid and binding. HOWEVER, there are certain statutory exceptions to that general rule and one of them is assignment of copyrights where the copyright statute explictly states that transfers MUST be made via a written instrument. So before you actually count on a verbal agreement being sufficient to transfer copyright, you ought to check the actual letter of the law in your country, it might be an exception to the rule there as well.From a quick Google it appears that only the total transfer of copyright needs a document signed by the rights owner although the assignment of rights to use the work totally & exclusively which has the same effect does not[/QUOTE]

From a quick Google it appears that only the total transfer of copyright needs a document signed by the rights owner although the assignment of rights to use the work totally & exclusively which has the same effect does not[/QUOTE]

This seems like a small, nitpicking point but the law is like that, you cannot grant copyrights through an assignment without it being through a written instrument. With regards to Copyright law assignment is essentially selling your rights and after execution of the agreement you no longer hold any copyrights to the work. You could actually cannot verbally grant exclusive right without it being done through a written instrument either. The statute allows granting non-exclusive rights without it being in writing but not exclusive rights.

Roger has a good point in trying to figure a way to make this a win win situation. However, with the way a lot of the local cable operators are now, they will give away the production of your "commercial" to get you to buy the airtime. At least for several of the local businesses I've talked to, the local cable company is willing to send out a one or two man crew to film your commercial. These are usually in-house interns and from the ones I've seen they turn out pretty bad. But, in today's economy businesses are trying to stretch their dollars as far as they can so they usually go with the free production offer. It's worth a try though.

It was interesting to read the "mandatory deposit" rule of copyrighted material. I wonder if this is an often overlooked rule ???

Section 407 of the Copyright Act (title 17, U.S. Code) subjects all works published
in the United States to a mandatory deposit requirement. The law states
that the “owner of copyright or of the exclusive right of publication” in a work
published in the United States must deposit the required number of copies in
the Copyright Office within three months of the date of publication. Publication
is defined in copyright law as the “distribution of copies or phonorecords
of a work to the public by sale or other transfer of ownership or by rental, lease,
or lending.” (See “Published Electronic Works Available Only Online” on page 2
for details about interim regulations governing mandatory deposit of these works.)
The mandatory deposit provision ensures that the Copyright Office is entitled
to receive copies of every copyrightable work published in the United States.
Section 407 states that the deposits are to be made “available to the Library of
Congress for its collections or for exchange or transfer to any other library.”
Send deposit copies to the address below or, to satisfy the mandatory deposit
requirement by applying for copyright registration, see “Copyright Registration
to Satisfy Mandatory Deposit Requirements” on page 2.

Now that I got your attention :)

Exemptions from the Deposit Requirement

Because many deposits are not suitable for addition to the
Library of Congress collections or for use in national library
programs, the Copyright Office has issued regulations that
exempt certain categories of works entirely from the mandatory
deposit requirements. These regulations also reduce
the required number of copies or phonorecords from two
to one for certain other categories. Currently, works that are
published only electronically and that have no physical counterparts
are exempted from the deposit requirements until the
Copyright Office issues a demand for deposit. (See “Published
Electronic Works Available Only Online” on page 2.) For further
information about these regulations, see www.copyright.
gov/title37/202. Click on 202.19.

First off….

Thank you everyone for your most valuable input thus far. I've learned much in this little thread I started.

As an update so far. I have tried contacting my friend about the situation by phone to no avail…however he will answer texts! Ewwww…. The short of it is that he has written to me that he will contact the station to have it taken down from "thier samples" section. Which as of a few minutes ago it's still there. I don't suspect that he is really going to make the call.

Otherwise I was thinking of this solution which will go with Rogers suggestion. Turn this negative into a positive. I will have some actual time to visit the station tomorrow and to speak with someone. We'll see where that goes.

The other option since realistically i can not afford an attorney, (and I don't believe one will be appointed to me), that i would link the URL to my Facebook pages, and website…. with a blurb of, "Thank you, (local cable tv station), for recognizing the quality film making capabilities of , (my company), in utilizing the original film made for, (friends bar), in one of their more exciting commercials. A special thanks to them as well for posting it at the top of their samples commercials!"

Or something like that...

Good luck Don. In the end, you'll have to decide how much time and energy you're willing to devote to the matter. There's a general lack of respect for the rights of intellectual property creators, and a devaluing of the creations themselves in our culture. A lot of it is due to old fashioned, inadvertent ignorance. Then there is the problem of ignorance by choice in order to avoid responsibility for wrong behavior. Finally, there is feigned ignorance from someone who is really out to cheat you. It's not always easy to determine which form of ignorance is causing the problem, and therefore, which approach to take in dealing with the problem, or whether to just drop it.

I have a hard time dropping problems if I become angry. However, as I've gotten older, I've learned to not let anger drive my decision making. Business being the way it is, it's important to make wise decisions.