Who owns the footage anyway ???

[Jim Newberry]

Pro photographers only retain the rights to their work because they spell it out in a contract, otherwise, the law would tend to favour the side of the client who paid for the work.

I'm a pro photographer, and my understanding is that unless a (still) photographer signs a work for hire agreement, by default he/she owns the copyright. It's highly recommended that photographers register their images with the copyright office for further protection. I know less about the film/video industry, but my understanding was that it's not the case that a DP would own the rights to footage they shot unless an explicit agreement was made.

From the U.S. Copyright Office Web site:

The owner of the “work” is generally the photographer or, in certain situations, the employer of the photographer. Even if a person hires a photographer to take pictures of a wedding, for example, the photographer will own the copyright in the photographs unless the copyright in the photographs is transferred, in writing and signed by the copyright owner, to another person.

It's always a good idea to work this out before cameras roll whenever possible.

eta: from the ASMP site (and again, I don't think this necessarily applies to DPs):

You already own it. In most cases, unless you specifically signed away your rights, you — the photographer — own the copyright and the right to license and re-license the image in any way you choose. This is true even if you have not registered your copyright or put your copyright notice on the image. Where registration makes a real difference is when something has gone wrong and your rights are being infringed.

[Dylan Couper]

Originally Posted by Jim Newberry

I know less about the film/video industry, but my understanding was that it's not the case that a DP would own the rights to footage they shot unless an explicit agreement was made.

It is a different world from job to job. From personal examples, if I produce an event video, and hire two video camera operators for the day to run my cameras, using my tapes... do they really hold the copyright on the footage? I've worked as a DP on numerous projects, including feature films, I must own the entire film then, right?

The rules are different across the board. I do believe in "hold the tapes until you get paid" though. :)

As in my previous post, if you intend to keep the copyright on the footage, play it safe and get it in a contract. Even if it is rightfully yours, it'll keep you out of court (maybe).

[Richard Gooderick]

This is a good example of why it is good to get things down in writing at an early stage.

Because this wasn't done the situation is a mess.

Ken should have confirmed the verbal understanding in writing early on. Preferably as a contract.

My opinion is that Ken can do very little with the footage without an agreement with the musicians and vice versa.

I certainly wouldn't release the footage.

Negotiate an agreement without delay. Take legal advice.

By the tone of what they are saying and how they say it I wouldn't be surprised if they have taken legal advice already.

[Allan Black]

Yeah, reading the letter, sounds to me like some other producer has sweet talked his way
into their confidence saying get the tapes and I'll make them into a program for you. He's probably charging too.

Don't give up the tapes, and even go to the trouble of locking them away off site somewhere till you get paid for them. What the amount is will have to be negotiated, start high and come down to a figure you want. Unfortunately it won't be the real costs you put into the project.

Your association with him is at an end I'm afraid, cut your losses and get out now. Good luck.
Cheers.

[Dean Sensui]

One possible option is to make low-rez or watermarked copies of the footage.

The musician can make demos to shop around and, when a deal is struck and you start getting paid, you can then release the footage after an agreement is signed which spells out precisely who gets what.

What you seem to have is material with potential value. If you shot it on your own dime and your own time then you definitely have at least co-authorship rights. In which case nothing can be done with the material without your permission.

I ran into a similar situation where someone shared co-authorship but used material without getting my permission first. I could sue but that would be expensive and the jerk probably doesn't have enough assets to cover what we could get in damages. Besides, he's doing enough stupid things to wreck his own reputation all by himself.

Good luck!

[Steve House]

Originally Posted by Dylan Couper

It is a different world from job to job. From personal examples, if I produce an event video, and hire two video camera operators for the day to run my cameras, using my tapes... do they really hold the copyright on the footage? I've worked as a DP on numerous projects, including feature films, I must own the entire film then, right?

The rules are different across the board. I do believe in "hold the tapes until you get paid" though. :)

As in my previous post, if you intend to keep the copyright on the footage, play it safe and get it in a contract. Even if it is rightfully yours, it'll keep you out of court (maybe).

It is my understanding that most 'above the line' creative people such as producer, director, director of photography, composer, etc, hired by a production company will generally find an explicit "work for hire" clause in the contracts offered them so that the production company ends up owning the copyright. Without such a provision, the above the line creators of the film would in fact collectively own the copyright, not the production company. The reason they would is that they have the creative control and the film is the result of their artistic efforts and talents - collectively they are its authors. Below the line technicians such as sound recordists, camera operators, gaffers, etc., do not exercise creative control and would typically be considered employees. As such a 'work for hire' clause is not strictly necessary for them, though one may be included just to cover the bases. For instance, I understand such a provision is standard fare in a studio musician's employment agreement. So if you are the videogapher hired by an ad agency to shoot and direct a commerical or by a corporate client to produce a video for the annual stockholder's meeting, is your role one of above the line creative or below the line tehcnician? Are you merely running a camera or are you actually creating the final video?

[Dave Vaughn]

Since the practical upshod of this discussion seems to be have everything in a contract, would anyone point me to some sample contracts I can use as a starting point to spell out footage ownership rights, etc?

[Edward Phillips]

It sounds from the email and the scenario that everyone is still 'friendly' at this point. It seems the video work was done more as a passion for the subject not for thinking it will be a viable commodity later on. I could be wrong in that assumption. Usually things stay cool until the crazy chance profit does become a factor.

I think the suggestions already stated about finding legal advice is the best answer. However, this can also be the death of it all as it seems like a stalemate. You can't do anything with the videos since there is no music/sync license and they can't do anything with the video because most likely you control the rights to it.

If this was something you devoted a lot of time to because of your interest in the subject matter not for the chance to make money, I think offering a watermarked copy of the footage is fine. Make sure it is watermarked to show your ownership and that it can't just be cropped or edited out if someone decides to just "steal" it. If they shop it around and there's a buyer, then they will need you and your tapes. That is of course if it is deemed by professional legal counsel that you are the owner.

[Jim Newberry]

Originally Posted by David Vaughn

Since the practical upshod of this discussion seems to be have everything in a contract, would anyone point me to some sample contracts I can use as a starting point to spell out footage ownership rights, etc?

The ASMP has sample contracts and terms and conditions and other useful resources; however, these are aimed at still photographers, and I do think the industries work differently in some ways. But this might help as a starting point. Check out the "licensing guide" at this page:
http://www.asmp.org/

[Steve House]

Originally Posted by Jim Newberry

The ASMP has sample contracts and terms and conditions and other useful resources; however, these are aimed at still photographers, and I do think the industries work differently in some ways. But this might help as a starting point. Check out the "licensing guide" at this page:
http://www.asmp.org/

While the industries are different, the law of copyright is the same. My opinion, as a non-lawyer, agree's with you that the ASMP guides should be equally applicable to independent video producers as they are for still photographers, less so for people working on staff of networks and broadcast stations, working in feature production companies, or studios. The videographer who contracts to shoot a wedding, corporate event, or advertising spot seems to me to be a very close parallel to the freelance, commercial, advertising, or editorial photographer taking on similar assignments from similar clients. I think the primary difference is that the videographer has to worry much more about clearing the rights to use material whose copyright is owned by others, such as music that he incorporates into his productions, than the still photographer would.

[Jim Newberry]

I think the primary difference is that the videographer has to worry much more about clearing the rights to use material whose copyright is owned by others, such as music that he incorporates into his productions, than the still photographer would.

This definitely applies to the still world. If a magazine hires me to photograph a recording artist, I own the copyright to the photographs; however, I am limited in what I can do with the photographs--I can't sell them for advertising, obviously, without the subject's permission. I guess one big difference is that you don't have to worry about music rights with stills.

[Eric Stemen]

I agree with Edward Phillips, you could give them the footage, but put a big watermark all the way through it.
If the band is concerned about having a backup, Just ask them to pay your for an external drive and ship it off to someone else in your family.
I would think this would make everyone happy...or at least everyone should think it is fair.

[Grayson L. Wideman]

I have two examples of companies handling the creation of intellectual products.
RCA and their subsidiary NBC would have an employee sign an agreement giving the company ownership of any intellectual property produced by them on their own time or by their family. This was a condition of employment.

Bell Labs wanted “right of first refusal” on the purchase of such work and would offer to help with marketing the works they didn’t want for a 10% interest in said work.

Guess which company had more patens? It is very hard to turn off the creative brain once it start to work. Any time someone at NBC came up with an idea that was worth a lot of money, they would quit before announcing the development of any idea.

Grayson

[Steve House]

Originally Posted by Jim Newberry

This definitely applies to the still world. If a magazine hires me to photograph a recording artist, I own the copyright to the photographs; however, I am limited in what I can do with the photographs--I can't sell them for advertising, obviously, without the subject's permission. I guess one big difference is that you don't have to worry about music rights with stills.

Excellent point and I think that's the situation Ken faces in his original post. He owns the footage and the band can't use it until he licenses the rights or transfers them to them but he too is very limited in what he can do with the footage unless the band signs off on it with releases. He also needs to consider the copyright on the music the band performed when he considers any potential use of the footage. If it's the band's original creation, he would need to get a license from them to use the music whose copyright they own as well as the releases to use their likenesses.

[Dylan Couper]

Originally Posted by Steve House

Below the line technicians such as sound recordists, *camera operators*, gaffers, etc., do not exercise creative control and would typically be considered employees. As such a 'work for hire' clause is not strictly necessary for them, though one may be included just to cover the bases.

Right... Thank you for finally coming around to my original point and supporting my generalization that for the most part, if you are working for the man, you don't own the footage.

So... One more time, my huge generalization (amended):

* If you are working independently in any roll, you control the footage.

* If you are working for someone, but creatively (say as a cinematographer), you might own the footage, or might not, independently or collectively, depending on your agreement with the client/producer. If you haven't signed the rights away, you could have a claim to them.

* If you are working as a camera operator for someone, you don't likely own the footage.

And if in doubt, ask a lawyer. Or Steve.