Media rights & advice

[Steve House]

Originally Posted by Nigel Barker

It's normally US law that gets quoted on this forum but the OP is in the UK & while I am not a lawyer as far as I am aware the copyright always resides with whoever commissions the work unless the contract states otherwise.

Here is a paragraph directed at those commissioning a corporate video from the UK Institute of Videographers web site



IOV | Institute of Videography : Corporate Video

The page on wedding videos on that site doesn't even mention the ownership of copyright of the finished work for the very good reason that it would be bizarre that the guy who you employ to take the video of your wedding might own the copyright & be able to use it in any way they wanted without your knowledge. While this may be a feature of US law this does not make it normal, fair or right.

The paragraphs you cited are quoting what sound like normal or recommended business practices, not law. Copyright typically belongs to the person who CREATES the work, NOT the person who commissions the work. What your quote is saying is that it is usual for the videographer to transfer copyright to the client upon receipt final payment. But for him to transfer it, he must first own it. If it was automatically the client's by virtue of the fact he contracted to have the program made, there wouldn't be anything for the videographer to transfer on that final payment mentioned. Note to the term "retain copyright" in the following sentence - if they didn't own it to begin with, they couldn't retain it.

Ownership of copyright and being able to use it "in any way they wanted without your knowledge" are two entirely different things. I might own the copyright to a video I made of your wedding but I would still need to obtain your permission to use your image and likeness for anything I might want to actually do with it. My ownership of the copyright would mean that you couldn't barter clips from it to the wedding dress store for them to use in their advertising in exchange for a free wedding dress but I can't use it in my advertising either without your permission.

If you have your wedding photographed, the photographer typically retains ownership and control of the negatives, owning both the copyright to them and retaining their physical custody. Reprint orders are an important part of many photographer's business revenue stream. If the couple owned the copyright, they could bypass the photographer and get their reprints made at the big-box discount store, but since the photographer owns the copyright to the photos, it would be illegal for Costco to reproduce them and undercut him.

[Nigel Barker]

Originally Posted by Steve House

The paragraphs you cited are quoting what sound like normal or recommended business practices, not law. Copyright typically belongs to the person who CREATES the work, NOT the person who commissions the work. What your quote is saying is that it is usual for the videographer to transfer copyright to the client upon receipt final payment. But for him to transfer it, he must first own it. If it was automatically the client's by virtue of the fact he contracted to have the program made, there wouldn't be anything for the videographer to transfer on that final payment mentioned. Note to the term "retain copyright" in the following sentence - if they didn't own it to begin with, they couldn't retain it.

I agree. I think the document is just stating what is evidently the normal business practice for the UK i.e. when you commission a corporate video you contract & pay to have the rights assigned to you. I cannot see how normally there would be any advantage to the videographer in retaining copyright as there won't be repeat business in prints or wedding albums so they might as well give it up for a fee. If the videographer has not been paid then he has not been employed so he owns the copyright in just the same way as if he had filmed something on his own. The rights to the unused raw footage are owned by the videographer unless a different agreement is made.

I have done some more Googling & it does appear that there are differences in copyright law even between English-speaking countries with similar legal systems e.g. in Australia (as in Canada) the person who commissions a wedding photographer owns the copyright to those photos unless they have signed a contract explicitly renouncing their ownership & giving it to the photographer Who owns wedding photography copyright?: Ask an Expert - Catapult - ABC Online

[Richard Gooderick]

I've forgotten a lot of what I knew and I am not a lawyer but ....
As far as I recall the law in Europe differs from American law in that in Europe the author gets moral rights and author's rights by default ie the rights remain with the artist/creator unless they are signed away.
The law in North America slants the power more towards the producer (the videographer in this case), and UK law is somewhere in between.
However as the videographer (I hate his word, what's wrong with filmmaker) is both the director and the producer I believe that s/he gets the rights by default.
In the absence of any contract between the commissioner and the commissioned party I think that the commissioned party retains the rights ie as the producer/author/creator of the IP.
If you do enter into an agreement to licence rights there is nothing to stop you from retaining certain rights and also to break the rights up eg into foreground and background rights eg you could licence rights in the completed film to the commissioning party and retain rights in any material or intellectual property created during the course of the production eg footage, sequel rights, format rights, if applicable.

[Steve House]

Originally Posted by Nigel Barker

I agree. I think the document is just stating what is evidently the normal business practice for the UK i.e. when you commission a corporate video you contract & pay to have the rights assigned to you. I cannot see how normally there would be any advantage to the videographer in retaining copyright as there won't be repeat business in prints or wedding albums so they might as well give it up for a fee....

The advantage would be in a situation such as our original poster finds himeslf. He shoots a video for client A, let's say it's a training program dealing with widely applicable skills so we don't have to deal with the complexity of advertising, branding, competition, proprietary information, etc. It's a really good program so when business-person B sees it, he would like a copy to use in his own training department. If the videographer has relinguished copyright, client A can sell as many copies of the program as the market will bear to whom ever he wishes without any further payment coming to the videographer, effectively using the videographer's own product in competition against himself. If the videographer retains copyright, client A cannot sell or distribute copies of the program to third parties who perhaps might otherwise be coming to videographer as clients themselves to purchase similar programming.

[Steve House]

Originally Posted by Richard Gooderick

I've forgotten a lot of what I knew and I am not a lawyer but ....
As far as I recall the law in Europe differs from American law in that in Europe the author gets moral rights and author's rights by default ie the rights remain with the artist/creator unless they are signed away.
The law in North America slants the power more towards the producer (the videographer in this case), and UK law is somewhere in between.
However as the videographer (I hate his word, what's wrong with filmmaker) is both the director and the producer I believe that s/he gets the rights by default.
In the absence of any contract between the commissioner and the commissioned party I think that the commissioned party retains the rights ie as the producer/author/creator of the IP.
If you do enter into an agreement to licence rights there is nothing to stop you from retaining certain rights and also to break the rights up eg into foreground and background rights eg you could licence rights in the completed film to the commissioning party and retain rights in any material or intellectual property created during the course of the production eg footage, sequel rights, format rights, if applicable.

Right - the commissioned party (ie, the filmaker) is the author because he actually creates the program. The commissioning party might describe the concept he is looking for but then the filmaker takes the concept and creates the tangible expression of that idea. And it is only the tangible expression that is copyrightable -the idea or concept is not. Thus the commissioning party is the customer who is buying a license, albeit perhaps an exclusive license, to use the program from the person who created it unless the filmaker chooses to relinguish the rights. Of course, the commissioner equally has the right to say "I won't hire you unless you agree to transfer the rights to the finished program over to me upon completion."

[Nigel Barker]

Originally Posted by Steve House

The advantage would be in a situation such as our original poster finds himeslf. He shoots a video for client A, let's say it's a training program dealing with widely applicable skills so we don't have to deal with the complexity of advertising, branding, competition, proprietary information, etc. It's a really good program so when business-person B sees it, he would like a copy to use in his own training department. If the videographer has relinguished copyright, client A can sell as many copies of the program as the market will bear to whom ever he wishes without any further payment coming to the videographer, effectively using the videographer's own product in competition against himself. If the videographer retains copyright, client A cannot sell or distribute copies of the program to third parties who perhaps might otherwise be coming to videographer as clients themselves to purchase similar programming.

If the videographer wants to set up a business selling training videos then fair enough produce training videos & sell them on the open market. However it's a bit cheeky having been paid in full by client A to produce the training video to then go ahead & sell that same work again at full price to Client B, Client C etc. It would be like a graphic designer commissioned to produce a logo for client A & later selling that same logo to client B or a web designer creating a web site or indeed any other creative art where the client could reasonably expect that they have exclusive rights to work that they have commissioned. Just because the videographer cheats client A by not explaining the copyright situation doesn't make it right.

[Shaun Roemich]

Originally Posted by Nigel Barker

Just because the videographer cheats client A by not explaining the copyright situation doesn't make it right.

OK, for someone who chides others on explosive language, you're sure quick to throw it out yourself.

Just because someone (or the law) doesn't agree with your take on things, doesn't make them one who "cheats" their clients. I have a VERY VALID interest in this whole discussion right now that I can't go into because of a client...

[Richard Gooderick]

Originally Posted by Nigel Barker

If the videographer wants to set up a business selling training videos then fair enough produce training videos & sell them on the open market. However it's a bit cheeky having been paid in full by client A to produce the training video to then go ahead & sell that same work again at full price to Client B, Client C etc. It would be like a graphic designer commissioned to produce a logo for client A & later selling that same logo to client B or a web designer creating a web site or indeed any other creative art where the client could reasonably expect that they have exclusive rights to work that they have commissioned. Just because the videographer cheats client A by not explaining the copyright situation doesn't make it right.

It's not cheating. It's business and it's quite legitimate and ethical.
The same situation would apply for instance to a boat designer, a photographer or a house surveyor. In the absence of an agreement to the contrary they keep the IP and and can exploit it further for their own gain.
The producer/creator is adding value because of their talent and expertise and can justifiably expect to benefit from that.
Look at it the other way. Taking your example, the person commissioning the training video did it for themselves and have got the value of what they paid for. Why should they be more entitled than the filmmaker/producer etc to any further value if they didn't say so or think about it at the time?
The whole of the independent television production sector in the UK, France and many other countries depends upon producers retaining rights in what they produce.
If you have the opportunity and don't do this you are living hand-to-mouth all the time and giving away the rewards of your labours to other people.

[Chris Hurd]

The comments made via our Report Post system accurately sum up the problem with this discussion:

This thread is rapidly going downhill into the "I THINK" territory as opposed to offering
useful advice. Like so many "legal" threads on here, there's more "noise" than usable "signal"...

Closing down for now, unless Paul Tauger or any other attorney specializing in IP cares to respond.