Who owns the audio ?

[Chris Sweet]

Just out of curiousity, if I'm recording the audio myself with my own gear, and for an independant producer, that probably isnt backed up by heaps of paperwork, are the files anybody's and 'royalty free' because I've not copyrighted them, or do I have any legal rights to these recordings since I've captured them?

[Chris Hurd]

You *do* have rights for anything you create, but it's more difficult to pursue infringers if you haven't registered copyright on that material. Then again, I'm not a lawyer, so that's just what I think, not what I know.

[Mark Boyer]

Any art or work you a compensated for in it's creation becomes the property of the client.

Also if you record any copyrighted material (like a background radio station playing music) can be a violation of the copyright laws.

Even if you record a Harley exhaust sound (copyrighted by the HD company) you can be in violation of recording a copyrighted material (depending on how its used).

[Mark Boyer]

As a employee (Editor) of 2 nationally distributed magazines all work I am paid for (even if there is no written agreement) becomes the property of my employer. If I am sent ad art components and create an ad, once we are paid all parts of the ad art become the advertisers property. If you are not paid you retain all of the copyrights (even if it is not in writing)

[Gabe Strong]

Are you a lawyer or is this just your opinion? Now I will be totally upfront, I am NOT a
lawyer so this is just my opinion. From what I have been told by others....it depends.
If you use your own gear to create something for a client who owns what? I've been
told it depends. If I create a DVD for a client and use maybe 1/4 of all the footage I shot,
who owns the other footage? Usually you want these situations spelled out in a contract,
but if you DON'T have them spelled out in a contract, I'd contact a lawyer that specializes
in this area.......because I'm pretty sure that a blanket statement 'that any work that you
are compensated for in it's creation is the property of the client' is not really accurate...
or at least not the whole truth.

[Seth Bloombaum]

***edit: Just noticed the original poster is located in Canada. No idea how copyright law reads there.***

My understanding is a little different than Mark's - however, I'm not a lawyer either. I'm writing purely of my experience as an employer, employee, and freelancer.

Originally Posted by Mark Boyer

As a employee (Editor) of 2 nationally distributed magazines all work I am paid for (even if there is no written agreement) becomes the property of my employer.

Correct, as far as I understand - the key word here is "employee". All creative works are presumed to be owned by the employer.

Originally Posted by Mark Boyer

Any art or work you a compensated for in it's creation becomes the property of the client...

Not quite as clear. It isn't compensation that creates an employer/employee relationship, there are other measures used. If one is a not an employee, and creates a work, the copyright is presumed owned by the creator. By usual working practices the client owns the work, however, in that this is usually not supported by a written license or assignment of copyright, it may not be seen this way if it is contested in court, depending. I've seen production companies assert ownership of outtakes, for example.

Originally Posted by Mark Boyer

...Even if you record a Harley exhaust sound (copyrighted by the HD company) you can be in violation of recording a copyrighted material (depending on how its used).

I've heard that sound effects gathered from the field are usually not considered to be covered by copyright, because there is no act of creation. This gets a little more interesting in that H-D have asserted there is an act of creation associated with their motorcycle's exhaust. Maybe it would stand up in court.

I've found one practice to be most helpful: Don't work with people with whom you may end up in court. Been there, done that, it's not worth it.

Originally Posted by Gabe Strong

...Usually you want these situations spelled out in a contract,
but if you DON'T have them spelled out in a contract, I'd contact a lawyer that specializes
in this area...

Good advice!

[Mark Boyer]

Copyrights are generally owned by the people who create the works of expression, with some important exceptions:

If a work is created by an employee in the course of his or her employment, the employer owns the copyright.
If the work is created by an independent contractor and the independent contractor signs a written agreement stating that the work shall be "made for hire," the commissioning person or organization owns the copyright only if the work is (1) a part of a larger literary work, such as an article in a magazine or a poem or story in an anthology; (2) part of a motion picture or other audiovisual work, such as a screenplay; (3) a translation; (4) a supplementary work such as an afterword, an introduction, chart, editorial note, bibliography, appendix or index; (5) a compilation; (6) an instructional text; (7) a test or answer material for a test; or (8) an atlas. Works that don't fall within one of these eight categories constitute works made for hire only if created by an employee within the scope of his or her employment.
If the creator has sold the entire copyright, the purchasing business or person becomes the copyright owner.

[Lee Roberts]

Originally Posted by Mark Boyer

Copyrights are generally owned by the people who create the works of expression, with some important exceptions

This is off-topic a bit, doesn't have anything to do with DV, but it touches on copyright. I watched it unfold personally and knew people on both sides of the transaction. The following is not intended to be anything more than interesting reading.....

I had a very large MLM company as a client. From about 1986 or so, all of their software was custom developed by two people. For the first 2 1/2 years, the developers worked at the company's office. After that, they worked from home - one in the same city, the other from about 2000 miles away. They logged into the mainframe to work, and their time was tracked with some time of auditing software (I only mention this because the following numbers are quite staggering).

The arrangement worked like this: the developers submitted their time weekly (they were considered subcontractors) and were supposed to be paid every payroll cycle. Both were billing at $90/hour for the first 40, time and a half for everything after that.

The primary programmer billed the company an average of 80 hours/week for SEVEN YEARS. Sometimes she was paid promptly, other times not. Meanwhile, the MLM company grew, expanded into other countries, became the target of many lawsuits over deceptive business practices, etc. I won't say the company is a scam, but to many people their tactics might be considered, at the very least, unethical. They were spending quite a bit of money with me at the time - sometimes I would get paid promptly, other times they'd drag me out as long as 180 days. I always got my money and I knew top management, so I continued to do business with them until...

Most upper level management was forced out (not the CEO, though), and when new management was in place, one of the first things they looked at was the money being paid to the programmers. They calculated that they could have an in-house programming staff of at least half a dozen people for the money they were paying just the one gal locally. By this time, she had become a customer of mine, too, and while I wouldn't call her a close friend, I knew her pretty well.

Said company hires and IT manager who is instructed to hire developers, which he does. After delving into the system, they realize they don't have the source code for ANY of the software, only the compiled files. Decompilers for this particular language were not commonplace at the time (1996), and the ones that were available yielded code that was difficult (if not impossible) to sift through. So they contact the gal and instruct her to fork over the source code. She agrees to do so - for $1m. To this point, she had collected over $3m in programming fees.

A short legal battle ensues, and it is determined that she does not have to hand over the source code. Company pays her a million bucks in two installments spread over 60 days. She hands the source over.

About 5 months go by, and the IT manager and his entire staff don't seem to be producing the same quality and volume of work as the one gal had been. They contact her and ask her if she would consider programming again for them. She says, "Of course, but I charge $150/hour now, time and a half for everything over 40." Company agrees to her terms, fires the IT manager and all the programmers, and she promptly begins billing them ~80 hours/week for her services.

Last I heard (around 2006), she was still at it. I sold that business in '04, so I lost touch with most of the people involved. I did visit her TRAILER once (granted it was on 300 acres of prime real estate, but still...a trailer?), and she had photocopies of the two $500k checks underneath the glass on her desk. She drove a Taurus, always dressed in polyester slacks, and to look at her, you would think she shopped exclusively at Wallyworld. Never been marrried, no kids, and no family to speak of.

Oh, the company? They're still at it...use to sell water filtration systems and now their big product is a dietary supplement that ostensibly supplies all the vital ingredients found in fruits/vegetables. I think they've run into some complications regarding their somewhat spurious claims of what the vitamin product really does, but that's another story.....

Some people dream of hitting the lottery. I dream of landing a customer like this.

Hope this isn't considered a hijack, but it contained some elements of "who owns what", so I though I'd share. If it offends anyone, I'll delete it.

Best ~ Lee

[Richard Alvarez]

Another tangental annecdote. The sound of a Harley Engine is TRADEMARKED not copyrighted.

And technically, it goes "potato-potato-potato..."

(The things you learn from being married to an IP attorney.)

[Brian Drysdale]

Originally Posted by Richard Alvarez

Another tangental annecdote. The sound of a Harley Engine is TRADEMARKED not copyrighted.

And technically, it goes "potato-potato-potato..."

(The things you learn from being married to an IP attorney.)

Hmmmm... Does this mean you have to put a TM caption whenever you hear a Harley? ;-)

Or just you can't use a Harley engine sound over a shot of a Honda.

[Shaun Roemich]

I BELIEVE it means you can't produce an exhaust system that sounds identical to the noises made by an air compressor... I mean Harley Davidson... <in jest - although I did get exceedingly tired of hearing HD aficionados rocket past my old apartment at 4 in the morning because they were surrounded on three sides by concrete buildings and the fourth by an earth berm. I believe this was done SOLELY for the reverberation created and ANNOYED THE *&%$ out of me as I tried to sleep>.

[Seth Bloombaum]

Originally Posted by Lee Roberts

Hope this isn't considered a hijack, but it contained some elements of "who owns what", so I though I'd share. If it offends anyone, I'll delete it.

Oh, please don't delete it - that is an amazing story. I imagine that the court case turned on two issues: There was never a contract that specified ownership of source code, and the two workers weren't employees. Copyright remains with the creator.

And you know, media production *and* software development are a funny thing. As the saying goes, 9 women can't make a baby in 1 month. Sometimes, a department of 6 coders can be way less efficient than one coder who was there at the start, has mad skills, and knows how things are put together.

[Chuck Fadely]

Originally Posted by Mark Boyer

Any art or work you a compensated for in it's creation becomes the property of the client.

Also if you record any copyrighted material (like a background radio station playing music) can be a violation of the copyright laws.

Even if you record a Harley exhaust sound (copyrighted by the HD company) you can be in violation of recording a copyrighted material (depending on how its used).

Just wanted to point out in bold type and exclamation points that is incredibly wrong.

Learn about copyright here - there are dozens of links as well as a primer: Editorial Photographers - Copyright

As for point one above: You own copyright to anything you create unless you are an employee or explicitly give up the rights by contract (work for hire.) Doing regular contract work or freelance jobs does not make you an employee.

Copyright is incredibly important to being able to make a living as a creative. The orphan works bill is the latest and worst attempt by big corporations to screw creatives. Educate yourself about copyright and urge your legislators to protect your rights!

(But in the case of the original poster, the audio you're recording probably belongs to the person/group making the noises you're recording. Your intellectual property is the mixing/editing of those noises/music/speech into something else.)

As for point two above: Incidental use of background noise is explicitly permitted in copyright law; what you can't do is use the background music or sound out of context. Above all, copyright law says you can't harm the commercial interests - in other words, you can't record and use enough of a song that someone could use it for other purposes. One note from a Beatles song could be a violation if you used it as a soundtrack, while an hour of use as parody could be ok - or not, depending on how much money you have for attorneys.

The tricky and expensive part about copyright is that it is decided in court, and not in statute. It is always better to err on the side of caution.

And for the Harley sound, as was pointed out it's a trademark, not a copyright, and that's an entirely different area of law. Copyright covers your creative work, not brand.

[Richard Alvarez]

Originally Posted by Chuck Fadely

And for the Harley sound, as was pointed out it's a trademark, not a copyright, and that's an entirely different area of law. Copyright covers your creative work, not brand.

Well, to be fair, it's NOT an entirely different AREAof law - trademarks, copyrights and patents all fall under the heading of "INTELLECTUAL PROPERTY" - but yeah, trademark and copyright are different subjects. All good points you've made too.

[Gabe Strong]

Originally Posted by Chuck Fadely

Just wanted to point out in bold type and exclamation points that is incredibly wrong.
- Copyright[/url]

As for point one above: You own copyright to anything you create unless you are an employee or explicitly give up the rights by contract (work for hire.) Doing regular contract work or freelance jobs does not make you an employee.

Copyright is incredibly important to being able to make a living as a creative. The orphan works bill is the latest and worst attempt by big corporations to screw creatives. Educate yourself about copyright and urge your legislators to protect your rights!

The tricky and expensive part about copyright is that it is decided in court, and not in statute. It is always better to err on the side of caution.
.

Again, I am not a lawyer, but this is how I understood it as well. Mark seems to be an
employee, so what he creates probably WOULD be owned by his employer. I am NOT
an employee, even when a company hires me to create a DVD or video for them.
The way I understood it, I owned rights to what I created UNLESS I signed away those
rights.......again, I am not a lawyer, this is just what I understood from talking
with people who know much more than I. I have a 'contract' I have written up with
help from various documents off the internet, which basically gives the clients the rights
to play, broadcast, display on their website or the like, the video I made for them. However, I usually state that the copyright remains with me, and that I can use the work
for such things as displaying examples of my work, inclusion into another video (unless
there is some confidential material that the company wants protected because of 'trade
secrets'....this has happened to me twice and both times I agreed that I would not show
certain things in any other videos), or basically anything I want. In my experience,
companies just want their video, either so they can sell a DVD about their company, so
that they can show it to employees, so that they can air a TV spot on local cable, or
something like that. They generally don't care about the copyright....again this is
only in my experience.

However as referenced, this things are decided in a court, and NOT defined real well,
so be careful and talk to a lawyer if you have any doubts.

In closing, I will tell about a story I read once, (on a freelance video production board) about the video production company that a big retail company (I think it was Walmart) hired to record internal meetings and policy discussions with the retail company
bigwigs. Anyways, after a number of years, the retail company abruptly fired the video production company. I think the video company had invested most of their time in doing these videos, and had lost most of their other clients and this left them in a hard spot financially.

So, the video company decided to SELL the videos they had of the retail company's
'bigwigs' meeting and discussing policy. Apparently there were some not so nice
behavior, language, or sexual harrasment, that the retail company did NOT want made public and they tried to claim that they held the copyright to those videos because of a similar claim that Mark talked of above....using the 'work for hire' provision. However,
the video production company had NEVER signed anything that gave away their copyright
to the videos, so it turned out that the retail company had to 'purchase' the videos from
the video production company to keep the videos from going public....and the 'purchase'
price was very, very high.....I seem to recall over one million dollars.

Lesson is.....be careful and if you might be in a situation that could burn you, use a lawyer.
Internet video boards are probably not a good place to go for legal advice :-)