The value of my raw footage and my rights to it

Matt Gettemeier · February 2nd, 2004, 11:31 AM

John, I have a couple more questions and observations.

How did you first sell yourself to do these spots?

What format do the buyers want the final copy in? (Or do you give a copy of the commercial to the buyer and then supply a different format directly to the local tv channel?)

I mainly noticed the tripod issue on the waterfall zoom out... but it's not bad.

Also I'm guessing you used some supplied photos and then did a motion path for some of those shots? (Like the family music business and wedding business?)... or else I'm guessing you shot a multi-pixel still for those?

Thanks for the commentary.

John Britt · February 2nd, 2004, 01:47 PM

Matt --

There are two basic types of spots I do: "Graphic Spots" and "Full Shoots." The full shoots are the ones I've been mainly discussing, like the Musician's Warehouse X-Mas ad. The graphic spots are ones like the family-owned music store and the wedding apparel shop -- the client typically supplies the photos and since I don't (usually) have to go shoot anything, these cost about half as much as the full shoots.

For the music store, they had a professional photographer take pictures for use in their print and TV ads, as well as their website. For the wedding store, the owner took all of those pictures (some of which I had to clean up in Photoshop and put against new backgrounds). All I have to do is just throw in the ol' "Ken Burns" effect via Image Pan in Premiere; or maybe an amateur attempt at a "The Kid Stays In the Picture" effect in AE (a la the opening shot in Georgia Theatre ad on my site). Add graphics, text, etc...

Currently, I give the client a VHS copy of the final spot and I hand a miniDV of it to the cable company. I would also gladly give the client the miniDV to deal with if s/he requested.

As for how I sell myself -- I started doing graphic spots a couple of years ago... Nepotism Alert: my wife sells local cable advertising air-time and I had to bug her repeatedly to get her to use me for graphic spots. Finally she relented... but it took awhile for the other reps to warm up to the idea of using me. Finally, I think they saw that I was able to produce graphic spots as good as their in-house guys in half the time. When I started doing "full shoots," they liked my price and my speed, I supposse... The reps are now gracious enough to mention my name and give clients my card when they are out selling air-time (and as I said in a previous post, I try to keep them happy in turn). I am very, very lucky to have had the "in" that I did, but I hope that it's my abilities that keep people coming back for more...

As for "selling" myself to new clients -- I don't really do it, per se. I just give them a demo VHS tape and my prices (I'm the only guy in town selling his services for $300 -- other producers start at $500-$600). If they don't like what they see (either on the tape and/or on their bottom line), then I'm not the guy for them. I don't want to oversell myself or overstate my abilities (although, as you can tell, I don't mind rambling on and on about myself), and I'll gladly tell people about the really good work that other producers (one team in particular) do in town. Hopefully, I will continue to learn more and make money that I can reinvest into more/better equipment (such as audio).

Anyway, that's probably more than anyone ever wanted to know about a freelance, low-budget ad producer... :)

Rick Bravo · February 4th, 2004, 11:10 PM

Simplified Chain of Command:

1: Client. Person or persons responsible for the selling of the product being advertised. These people oversee the hiring of all the people listed below. They provide all of the $$$ being spent on all of the following.

2: Ad Agency. Firm responsible for formulating an advertising campaign that will effectively portray the product being sold in an appealing and positve light, resulting in higher sales of said product.

3: Production company. Hired by the Ad Agency to provide both artistic (Director, DP, etc.), and technical (Camera crew, stylists, grips, gaffers, PAs, post production, etc.) personell necessary to complete the spot. This usually results in a finished spot ready for air.

In the hundreds of commercials that I have worked on, the Client has ALWAYS owned ALL of the materials used on or produced on a shoot. This includes, but is not limited to:

All footage, edited or un-edited.

Left over film stock regardless of whether it is raw stock or short-ends.

All sets and props, (unless they were rented), etc.

Basically, the Client owns everything that they have paid for. We have always turned over every frame of film that was exposed, regardless of whether it was requested or not. They own all of it.

They have the right to cut or re-cut the footage that you have provided to them regardless of whether they use you or someone else to obtain a finished product.

99.9% of all the commercials I have been on have been story boarded. This means that, other than a few alternate shots, there is really not much more raw footage to choose from.

Anyway, if they choose to re-cut the existing footage into different versions of the same spot, it is their prerogative.

The only things that change are the contractual agreements with regards to Talent depending on their Union affiliations and/or original contracts.

They pay for your talent, time and materials...basically, they are paying for your services. Any materials that are bought or produced during this time belongs to the Client unless other agreements have been reached before hand.

I know that this sucks, but the bottom line is that he who owns the ball can make up the rules to the game!

RB

Jeff Donald · February 5th, 2004, 05:29 AM

Rick, I think your statements above gets back to my original answer. In Ohio (where I'm originally from) your scenario above would have been the exception, rather than the rule. It was usual and customary for the production company to retain all rights and materials, not the client. My original advice remains, contact an attorney familiar with your states work for hire laws.

John Britt · February 6th, 2004, 01:45 PM

Rick --

Let me give you an even more simplified chain of command:

1) Owner or Manager of local business

2) Me

I'm sure that in your example, the cameraman alone got paid more than I get paid for producing a commercial all by myself!

Seriously, though, I don't mean to discount your point. I like reading real-world accounts of professional productions. I'm sure that in examples such as yours and Don's that there is a contract specifically stating that all materials are getting handed over. I'm also sure that everyone is getting their fair share of the pie.

I do think that your comment "he who owns the ball can make up the rules to the game" simplifies things a little too much. In my case, I'd say *I* own the ball -- ain't nobody else going to produce this person's ad for $300 or as quickly as I can. And I don't want to stray from discussing video, but let me use an example from my wedding: We paid the caterer to cook food for X amount of people. Well, less-than-X amount showed up, and I know that much more food was made than was eaten. Did we get to take all that food home with us, since we paid for the catering? Heck no. My wife and I each got a small take-home dinner and the caterer probably sold the leftovers in her restaurant the next day. A very tangential remark? Comparing apples to oranges? Sure, but it sort of shows that just because a client pays for something doesn't mean they get more than the final product...

I guess that my main question (whether or not I posted it coherently) has been answered -- is it reasonable for me to present a contract to a local business owner which states that I keep all raw footage (and possibly sell it to him/her for a small fee)? Basically, can I do this w/out looking like a jerk?

While examples such as yours and Don's show that it is not true across the board, I still get the feeling from the anecdotal and legal examples here that it is *not* unreasonable to present such a contract. And I assume that any such contract would hold power ahead of any work for hire laws such as Jeff mentioned.

Chances are that I might never encounter this problem. Some clients probably wouldn't even know what a miniDV tape was if they saw it. But I do feel like I need to cover my bases. Personally, I think it's reasonable to charge $300 for a final :30 commercial (that they can do whatever they want to with), but ask for an additional fee if they want the raw footage.

Now that it's on my mind -- let's look at this example: Let's say I use a piece of music in an ad from a royalty-free music collection that I have purchased. When I purchased the collection, I paid for a license which allowed me, and *only* me, to use said music in any commercial production (movie, ad, TV show, whatever). Just because I use that music in a client's ad doesn't give them free use of it -- they do not now have a license to use that music, and they certainly couldn't ask for the original music to use in future spots, correct? If they wanted original music, I'd give them the names of two people I know and they would work out an agreement of their own.

Anyway, I'm probably just thinking myself in circles by now! Thanks to everybody for your input and advice. And unless anyone can give me a very solid reason not to, all of my future contracts will include a clause about my retention of raw footage.

Rick Bravo · February 6th, 2004, 09:54 PM

I can only go by personal experience. The commercials that I am writing about are all film shoots done by large production companies. I have worked on many spots that have been re-cut, sometimes years later, by another company without the participation or input of the original production company, or director/editor. The latest is a spot for a Jai-Alai fronton that I worked on about 7 years ago. Last week I saw the same spot, revised with different cuts and supers on local TV. The original producers of the spot had no idea that it was airing at all.

$300 for a finished 30? That's not reasonable , that's a giveaway! Are you talking about $300 to cover pre-pro, prod, and post, including materials and camera/audio rental? Damn!

As far as the wedding planner example goes...while I get the jist of what you are trying to convey, I don't think that pitting perishables against intellectual property is quite a fair argument. Your caterer needs to buy enough supplies, (money out-of pocket), for the projected meals just as you have to buy stock for your projected shoot. If I tell my client that I need to buy 50 Mini-DV tapes for his/her shoot, include it in the budget and only end up using 10 tapes, I would fully expect to hand over the remaining 40 tapes to the client. I pesonally do not see shots that are in the can, but not used in the finished spot as "more than the final product".

If you had asked the caterer to give you the balance of your wedding meals, I think that the caterer would have had little recourse besides giving you the meals back, although I doubt that you would want to deal with XXX servings of what I call "wedding chicken" during your honeymoon! As the client, you should get what you pay for. If you paid for 100 meals, you are entitled to 100 meals. That doesn't necessarily mean that you will demand them. You did the right thing. It is probably looked at as a "tip" in the catering world, something that I pretty much know nothing about.

In the real world, just as you didn't take the overage from your wedding meals home with you, most clients would not have a use for excess, raw materials, good news for you...score!

As far as the music goes...no, there is no gray area here, it is not yours to give. You have your agreement with the licensing company...period. Like you said, if they like it enough to want to use it in future endeavors then they must work out their own licensing agreement with the holders of the copyright.

You may want to include the "raw footage" or what I now affectionately refer to as the "excess chicken" clause in your contract so that everyone is on the same page if the issue of a re-cut comes up, and for crying out loud...you need to change your rate card!!! It seems that you are seriously underselling yourself!

Jeff may have a point with regards to local laws, etc., something to look into.

Again, and for what it's worth, I am only piping in with personal experience.

RB

John Britt · February 8th, 2004, 12:01 AM

Rick--

Thanks for your input -- real-world experience is always helpful to hear. Yeah, I think there were some misfiring synapses in my head while trying to come up with come examples of "getting what you paid for." The "excess chicken" and "royalty-free music" examples weren't really very good... But I think you got the general idea of what I was trying to say (by the way, I think that it was actually part of our contract that the caterer kept everything that wasn't consumed -- regardless of how many people showed up. Whatever keeps the wife happy.)

But yeah, I think future contracts will specifically state that the business is paying for *just* the final ad. They can re-edit and change it however they like (a good bit of my own work is tagging pre-existing ads produced by someone else with updated sale/address/logo/etc information). If they would like to have the raw footage, then they can purchase the rights to use it in perpetuity for $200, perhaps.

As for the $300 production cost: yes, that's for everything. I won't go back into it, but my last two posts on page 1 of this thread and my first post on page 2 pretty much explain my situation -- what I do and why I charge my prices. If you see some of the examples on my website, you might reconsider saying that I'm underselling myself! For just $300 more than what I charge, a local business can get a really well-done ad produced by a very experienced production team.

And how's Miami nowadays? I used to live there in my youth, and while I can't say I miss living there, it certainly was an interesting place to be. I'm sure that working with the MDPD must be pretty d*mn crazy...

Rick Bravo · February 8th, 2004, 05:53 PM

John,

That's some very nice work and worth more than $300!

Miami is still Miami, what can I say? This would be a wonderful place to live if you could just re-populate the joint and start over.

As far as the MDPD is concerned, the best move I ever made was the jump from what people in the Department call the "real world" to what I do for a living now! Everyone always asks me when I am going to leave the County and go to the "real world". My response is...I came from the real world and am much happier here!

There is never a dull moment. We get to shoot some of the coolest stuff in the world, utilizing some of the coolest stuff in the world and lo and behold, the County pays for all of our toys!!!

I have no regrets about leaving, "the real world".

P.S. Keeping the wife happy is probably the most important thing you can do...until you have daughters, that is. Then you are completely on your own.

Regards, RB.

February 4th, 2004, 11:10 PM	#18
Rick Bravo Major Player Join Date: Sep 2003 Location: Miami, FL Posts: 574	Getting back to the original question. Simplified Chain of Command: 1: Client. Person or persons responsible for the selling of the product being advertised. These people oversee the hiring of all the people listed below. They provide all of the $$$ being spent on all of the following. 2: Ad Agency. Firm responsible for formulating an advertising campaign that will effectively portray the product being sold in an appealing and positve light, resulting in higher sales of said product. 3: Production company. Hired by the Ad Agency to provide both artistic (Director, DP, etc.), and technical (Camera crew, stylists, grips, gaffers, PAs, post production, etc.) personell necessary to complete the spot. This usually results in a finished spot ready for air. In the hundreds of commercials that I have worked on, the Client has ALWAYS owned ALL of the materials used on or produced on a shoot. This includes, but is not limited to: All footage, edited or un-edited. Left over film stock regardless of whether it is raw stock or short-ends. All sets and props, (unless they were rented), etc. Basically, the Client owns everything that they have paid for. We have always turned over every frame of film that was exposed, regardless of whether it was requested or not. They own all of it. They have the right to cut or re-cut the footage that you have provided to them regardless of whether they use you or someone else to obtain a finished product. 99.9% of all the commercials I have been on have been story boarded. This means that, other than a few alternate shots, there is really not much more raw footage to choose from. Anyway, if they choose to re-cut the existing footage into different versions of the same spot, it is their prerogative. The only things that change are the contractual agreements with regards to Talent depending on their Union affiliations and/or original contracts. They pay for your talent, time and materials...basically, they are paying for your services. Any materials that are bought or produced during this time belongs to the Client unless other agreements have been reached before hand. I know that this sucks, but the bottom line is that he who owns the ball can make up the rules to the game! RB __________________ "The future ain't what it used to be." Yogi Berra. www.rbravo.com

February 5th, 2004, 05:29 AM	#19
Jeff Donald Warden Join Date: Mar 2002 Location: Clearwater, FL Posts: 8,287	Rick, I think your statements above gets back to my original answer. In Ohio (where I'm originally from) your scenario above would have been the exception, rather than the rule. It was usual and customary for the production company to retain all rights and materials, not the client. My original advice remains, contact an attorney familiar with your states work for hire laws. __________________ Jeff Donald Carpe Diem Search DVinfo.net for quick answers \| Where to Buy? From the best in the business: DVinfo.net sponsors

February 6th, 2004, 09:54 PM	#21
Rick Bravo Major Player Join Date: Sep 2003 Location: Miami, FL Posts: 574	Apples and Oranges? Maybe. I can only go by personal experience. The commercials that I am writing about are all film shoots done by large production companies. I have worked on many spots that have been re-cut, sometimes years later, by another company without the participation or input of the original production company, or director/editor. The latest is a spot for a Jai-Alai fronton that I worked on about 7 years ago. Last week I saw the same spot, revised with different cuts and supers on local TV. The original producers of the spot had no idea that it was airing at all. $300 for a finished 30? That's not reasonable , that's a giveaway! Are you talking about $300 to cover pre-pro, prod, and post, including materials and camera/audio rental? Damn! As far as the wedding planner example goes...while I get the jist of what you are trying to convey, I don't think that pitting perishables against intellectual property is quite a fair argument. Your caterer needs to buy enough supplies, (money out-of pocket), for the projected meals just as you have to buy stock for your projected shoot. If I tell my client that I need to buy 50 Mini-DV tapes for his/her shoot, include it in the budget and only end up using 10 tapes, I would fully expect to hand over the remaining 40 tapes to the client. I pesonally do not see shots that are in the can, but not used in the finished spot as "more than the final product". If you had asked the caterer to give you the balance of your wedding meals, I think that the caterer would have had little recourse besides giving you the meals back, although I doubt that you would want to deal with XXX servings of what I call "wedding chicken" during your honeymoon! As the client, you should get what you pay for. If you paid for 100 meals, you are entitled to 100 meals. That doesn't necessarily mean that you will demand them. You did the right thing. It is probably looked at as a "tip" in the catering world, something that I pretty much know nothing about. In the real world, just as you didn't take the overage from your wedding meals home with you, most clients would not have a use for excess, raw materials, good news for you...score! As far as the music goes...no, there is no gray area here, it is not yours to give. You have your agreement with the licensing company...period. Like you said, if they like it enough to want to use it in future endeavors then they must work out their own licensing agreement with the holders of the copyright. You may want to include the "raw footage" or what I now affectionately refer to as the "excess chicken" clause in your contract so that everyone is on the same page if the issue of a re-cut comes up, and for crying out loud...you need to change your rate card!!! It seems that you are seriously underselling yourself! Jeff may have a point with regards to local laws, etc., something to look into. Again, and for what it's worth, I am only piping in with personal experience. RB __________________ "The future ain't what it used to be." Yogi Berra. www.rbravo.com

February 8th, 2004, 05:53 PM	#23
Rick Bravo Major Player Join Date: Sep 2003 Location: Miami, FL Posts: 574	Mo $$$! John, That's some very nice work and worth more than $300! Miami is still Miami, what can I say? This would be a wonderful place to live if you could just re-populate the joint and start over. As far as the MDPD is concerned, the best move I ever made was the jump from what people in the Department call the "real world" to what I do for a living now! Everyone always asks me when I am going to leave the County and go to the "real world". My response is...I came from the real world and am much happier here! There is never a dull moment. We get to shoot some of the coolest stuff in the world, utilizing some of the coolest stuff in the world and lo and behold, the County pays for all of our toys!!! I have no regrets about leaving, "the real world". P.S. Keeping the wife happy is probably the most important thing you can do...until you have daughters, that is. Then you are completely on your own. Regards, RB. __________________ "The future ain't what it used to be." Yogi Berra. www.rbravo.com

February 2nd, 2004, 11:31 AM	#16
Matt Gettemeier Major Player Join Date: May 2003 Location: St. Louis, Missouri Posts: 936	John, I have a couple more questions and observations. How did you first sell yourself to do these spots? What format do the buyers want the final copy in? (Or do you give a copy of the commercial to the buyer and then supply a different format directly to the local tv channel?) I mainly noticed the tripod issue on the waterfall zoom out... but it's not bad. Also I'm guessing you used some supplied photos and then did a motion path for some of those shots? (Like the family music business and wedding business?)... or else I'm guessing you shot a multi-pixel still for those? Thanks for the commentary.

February 2nd, 2004, 01:47 PM	#17
John Britt Major Player Join Date: Sep 2003 Location: Atlanta, GA Posts: 621	Matt -- There are two basic types of spots I do: "Graphic Spots" and "Full Shoots." The full shoots are the ones I've been mainly discussing, like the Musician's Warehouse X-Mas ad. The graphic spots are ones like the family-owned music store and the wedding apparel shop -- the client typically supplies the photos and since I don't (usually) have to go shoot anything, these cost about half as much as the full shoots. For the music store, they had a professional photographer take pictures for use in their print and TV ads, as well as their website. For the wedding store, the owner took all of those pictures (some of which I had to clean up in Photoshop and put against new backgrounds). All I have to do is just throw in the ol' "Ken Burns" effect via Image Pan in Premiere; or maybe an amateur attempt at a "The Kid Stays In the Picture" effect in AE (a la the opening shot in Georgia Theatre ad on my site). Add graphics, text, etc... Currently, I give the client a VHS copy of the final spot and I hand a miniDV of it to the cable company. I would also gladly give the client the miniDV to deal with if s/he requested. As for how I sell myself -- I started doing graphic spots a couple of years ago... Nepotism Alert: my wife sells local cable advertising air-time and I had to bug her repeatedly to get her to use me for graphic spots. Finally she relented... but it took awhile for the other reps to warm up to the idea of using me. Finally, I think they saw that I was able to produce graphic spots as good as their in-house guys in half the time. When I started doing "full shoots," they liked my price and my speed, I supposse... The reps are now gracious enough to mention my name and give clients my card when they are out selling air-time (and as I said in a previous post, I try to keep them happy in turn). I am very, very lucky to have had the "in" that I did, but I hope that it's my abilities that keep people coming back for more... As for "selling" myself to new clients -- I don't really do it, per se. I just give them a demo VHS tape and my prices (I'm the only guy in town selling his services for $300 -- other producers start at $500-$600). If they don't like what they see (either on the tape and/or on their bottom line), then I'm not the guy for them. I don't want to oversell myself or overstate my abilities (although, as you can tell, I don't mind rambling on and on about myself), and I'll gladly tell people about the really good work that other producers (one team in particular) do in town. Hopefully, I will continue to learn more and make money that I can reinvest into more/better equipment (such as audio). Anyway, that's probably more than anyone ever wanted to know about a freelance, low-budget ad producer... :)

February 6th, 2004, 01:45 PM	#20
John Britt Major Player Join Date: Sep 2003 Location: Atlanta, GA Posts: 621	Rick -- Let me give you an even more simplified chain of command: 1) Owner or Manager of local business 2) Me I'm sure that in your example, the cameraman alone got paid more than I get paid for producing a commercial all by myself! Seriously, though, I don't mean to discount your point. I like reading real-world accounts of professional productions. I'm sure that in examples such as yours and Don's that there is a contract specifically stating that all materials are getting handed over. I'm also sure that everyone is getting their fair share of the pie. I do think that your comment "he who owns the ball can make up the rules to the game" simplifies things a little too much. In my case, I'd say I own the ball -- ain't nobody else going to produce this person's ad for $300 or as quickly as I can. And I don't want to stray from discussing video, but let me use an example from my wedding: We paid the caterer to cook food for X amount of people. Well, less-than-X amount showed up, and I know that much more food was made than was eaten. Did we get to take all that food home with us, since we paid for the catering? Heck no. My wife and I each got a small take-home dinner and the caterer probably sold the leftovers in her restaurant the next day. A very tangential remark? Comparing apples to oranges? Sure, but it sort of shows that just because a client pays for something doesn't mean they get more than the final product... I guess that my main question (whether or not I posted it coherently) has been answered -- is it reasonable for me to present a contract to a local business owner which states that I keep all raw footage (and possibly sell it to him/her for a small fee)? Basically, can I do this w/out looking like a jerk? While examples such as yours and Don's show that it is not true across the board, I still get the feeling from the anecdotal and legal examples here that it is not unreasonable to present such a contract. And I assume that any such contract would hold power ahead of any work for hire laws such as Jeff mentioned. Chances are that I might never encounter this problem. Some clients probably wouldn't even know what a miniDV tape was if they saw it. But I do feel like I need to cover my bases. Personally, I think it's reasonable to charge $300 for a final :30 commercial (that they can do whatever they want to with), but ask for an additional fee if they want the raw footage. Now that it's on my mind -- let's look at this example: Let's say I use a piece of music in an ad from a royalty-free music collection that I have purchased. When I purchased the collection, I paid for a license which allowed me, and only me, to use said music in any commercial production (movie, ad, TV show, whatever). Just because I use that music in a client's ad doesn't give them free use of it -- they do not now have a license to use that music, and they certainly couldn't ask for the original music to use in future spots, correct? If they wanted original music, I'd give them the names of two people I know and they would work out an agreement of their own. Anyway, I'm probably just thinking myself in circles by now! Thanks to everybody for your input and advice. And unless anyone can give me a very solid reason not to, all of my future contracts will include a clause about my retention of raw footage.

February 8th, 2004, 12:01 AM	#22
John Britt Major Player Join Date: Sep 2003 Location: Atlanta, GA Posts: 621	Rick-- Thanks for your input -- real-world experience is always helpful to hear. Yeah, I think there were some misfiring synapses in my head while trying to come up with come examples of "getting what you paid for." The "excess chicken" and "royalty-free music" examples weren't really very good... But I think you got the general idea of what I was trying to say (by the way, I think that it was actually part of our contract that the caterer kept everything that wasn't consumed -- regardless of how many people showed up. Whatever keeps the wife happy.) But yeah, I think future contracts will specifically state that the business is paying for just the final ad. They can re-edit and change it however they like (a good bit of my own work is tagging pre-existing ads produced by someone else with updated sale/address/logo/etc information). If they would like to have the raw footage, then they can purchase the rights to use it in perpetuity for $200, perhaps. As for the $300 production cost: yes, that's for everything. I won't go back into it, but my last two posts on page 1 of this thread and my first post on page 2 pretty much explain my situation -- what I do and why I charge my prices. If you see some of the examples on my website, you might reconsider saying that I'm underselling myself! For just $300 more than what I charge, a local business can get a really well-done ad produced by a very experienced production team. And how's Miami nowadays? I used to live there in my youth, and while I can't say I miss living there, it certainly was an interesting place to be. I'm sure that working with the MDPD must be pretty d*mn crazy...