Who has the rights to video? at DVinfo.net

Herschel Kessler · January 25th, 2005, 09:26 AM

I am working on a promotional video for a big medical center and would like to know the legal rights that I have to the video I shoot. On their waiver, it states that the video shot will belong to them. Is this a general statement that it doesnt belong to the person in the film or am I going to lose the rights to the video I shoot? Do I need to come up with a waiver that states that the video I shoot is mine to keep?

Herschel

Richard Alvarez · January 25th, 2005, 09:50 AM

As a "General" rule, you will own the work product that you create, unless otherwise specified in the contract. If you want to be specific, then create your own contracts in the future, that specify rights to the footage created.

Your statement about "waiver" makes me think you are referring to the waivers that the on-screen talent must sign. This is not necessarily specific to your relationship. What does your contract with the medical center state?

Rhett Allen · January 25th, 2005, 10:32 AM

You should really have an attorney look over any contracts you enter into until you become proficient in reading "BS", I mean, "legal ease". Basically the "waiver" (or "contract") is stating that yes, they own the video. It is pretty standard for me to transfer the rights of a project to the client. What do I want with a video for a medical center? Charge them for the sole ownership rights (it cost's more than limited use rights). Remember to retain the right to use it for your self promotion if you can. (sometimes internal work is confidential)
They want to make sure they didn't buy a video that next week they see promoting another competing Medical Center!

A waiver is used to "waive" liability, or give up rights of some kind. A contract is a mutual agreement between the parties involved.

John Britt · January 25th, 2005, 11:18 AM

I asked this question a year ago, regarding my commercial work:

http://www.dvinfo.net/conf/showthrea...threadid=19777

Resident lawyer Paul Tauger replied in that thread:
"The law is, independent contractors own the expression that they produce, e.g. the raw footage, absent a _written_ agreement to the contrary. Employers of employees own the expression that the employees produce, absent a written agreement to the contrary."

If they've handed you a contract that says they own the footage, then signing it means that they'll own the footage. I have a clause in my Service Agreements that specifically states that I retain the rights to all the footage that I shoot and may reuse said footage in any manner, as long as it does not infringe on the company's trademarks, etc. (in other words, no use of any elements that include the company's logo or other elements that are unique to the business).

Usually, as Rhett said, I'll have no other use for the footage, but you never know. I can think of a few situations where something I shot would be useful for some other, non-ad project. And certainly, signing over the rights for the footage would mean that the business could take my tape and have someone else reedit it in the future, instead of that work coming back to me. So, as Rhett said, make sure you charge extra for sole ownership rights. If my clients want to otain the rights to my footage in the future, I will gladly sell it to them.

Richard Alvarez · January 25th, 2005, 12:41 PM

Yup, that's the "general rule" I was referring to!

Paul Tauger · January 26th, 2005, 05:21 PM

It's an interesting question, though, when the contract language says the entity retaining the videographer "owns the video shot." To me, at least, that's ambiguous, as shooting video entails two distinct pieces of property: the physical tape and content that's recorded on it. When I write license agreements for my clients who hire contractors to create IP, I'm very careful to specify that my client owns all copyright in the content created, and also include a provision that requires the contractor to cooperate in effecting the transfer of any and all such rights.

Of course, I haven't seen the OP's contract, nor could I provide him with a legal opinion, even if I had. However, the phrase "I own the video shot" does not, at all, seem clear. Note that there are a number common law rules of contractual construction which apply to ambiguous terms. The most relevant ones, here are:

- Ambiguities will be construed against the draftor of the agreement, i.e. if you wrote it, the ambiguous term will be given a construction most favorable to the other party.

- Parole and extrinsic evidence, i.e. verbal discussion and evidence outside of the agreement, may (but not always) be considered in clarifying ambiguous terms.

- Industry standard practice may be considered in clarifying ambiguous terms.

Again, without having seen the contract in question, I have no way of knowing what the ownership provision means.

Rhett Allen · January 26th, 2005, 06:12 PM

<<<-- Originally posted by Paul Tauger :
- Ambiguities will be construed against the draftor of the agreement, i.e. if you wrote it, the ambiguous term will be given a construction most favorable to the other party.
- Parole and extrinsic evidence, i.e. verbal discussion and evidence outside of the agreement, may (but not always) be considered in clarifying ambiguous terms.
- Industry standard practice may be considered in clarifying ambiguous terms.
Again, without having seen the contract in question, I have no way of knowing what the ownership provision means. -->>>

See what I mean about having an attorney review it! Is that even english you wrote up there Paul? HaHaHa!

I always give everything to the client, they get to own everything. Of course they have to PAY for it. This way "they" have to keep the masters safe, and if my relationship with them is strong enough they will come back to me for continuing work. If they don't, I did something wrong but this hasn't been a problem... yet (knock on wood).

John Britt · January 27th, 2005, 09:38 AM

<<<-- Originally posted by Rhett Allen : if my relationship with them is strong enough they will come back to me for continuing work. If they don't, I did something wrong -->>>

Not to stray too off topic here (although it applies to why one might want to retain rights to their footage), but I would disagree with your statement above. Many clients can see no further than the bottom line, and now that everybody (including me) and their mother has access to video editing tools, businesses are often opting for the cheapest route. I should know -- I get a good bit of my business because of my low prices, even though there is a much better (and more expensive) production company in town. And I know for a fact that regardless of how much a client liked me and my work, they will go for an even cheaper option if one is available.

In fact, I have two recent examples: One of my clients has been raving about their spot since I first did it. I never thought much of the ad itself, but they love it and they say their business improved the minute they started airing it. They even recommended me to other businesses. Recently, we had been discussing shooting a new ad. Just the other day, I got an apologetic email telling me that the owner has a friend who has offered to do the next ad -- obviously, at a friend discount. Bottom line wins out over the "strength of the relationship" with the client.

Another potential client recently contacted me. He said that I came "very highly recommended" and that he loved the work he saw on my site. While we were sending emails to schedule a time to meet, I got an abrupt (but polite) email telling me that he had decided to go with someone else. I later found out that one of his customers has been playing around with video work and offered to do the ad for trade. Again, the bottom line wins out.

Sure, there are other variables in these examples -- a friend here, a customer with a new video camera there -- but ultimately it's the bottom line that was the deciding factor. And regardless of who it is that gets the work -- friend or not -- it's still work that doesn't come back to me (or come to me at all, in the second example), regardless of how much the client liked me as a videographer or as a person.

This sort of thing happens across all service industries, especially ones -- like video production -- where the client/producer contact is limited to the once or twice a year that new work is needed (and yes, I send all my clients Christmas cards, etc., just to get that extra bit of contact!).

Just my two-cents...

[edit: just to clarify --- this is not to say that a positive relationship should not be cultivated, just that even if you have one, "the bottom line" can still get in the way. Like the Corleones say, "It's not personal; it's business."]

January 25th, 2005, 09:26 AM	#1
Herschel Kessler New Boot Join Date: Mar 2004 Location: Pittsburgh, PA Posts: 6	Who has the rights to video? I am working on a promotional video for a big medical center and would like to know the legal rights that I have to the video I shoot. On their waiver, it states that the video shot will belong to them. Is this a general statement that it doesnt belong to the person in the film or am I going to lose the rights to the video I shoot? Do I need to come up with a waiver that states that the video I shoot is mine to keep? Herschel

January 25th, 2005, 09:50 AM	#2
Richard Alvarez Inner Circle Join Date: Sep 2002 Location: San Mateo, CA Posts: 3,840	As a "General" rule, you will own the work product that you create, unless otherwise specified in the contract. If you want to be specific, then create your own contracts in the future, that specify rights to the footage created. Your statement about "waiver" makes me think you are referring to the waivers that the on-screen talent must sign. This is not necessarily specific to your relationship. What does your contract with the medical center state?

January 25th, 2005, 10:32 AM	#3
Rhett Allen Major Player Join Date: Mar 2002 Location: Plano, TX Posts: 607	You should really have an attorney look over any contracts you enter into until you become proficient in reading "BS", I mean, "legal ease". Basically the "waiver" (or "contract") is stating that yes, they own the video. It is pretty standard for me to transfer the rights of a project to the client. What do I want with a video for a medical center? Charge them for the sole ownership rights (it cost's more than limited use rights). Remember to retain the right to use it for your self promotion if you can. (sometimes internal work is confidential) They want to make sure they didn't buy a video that next week they see promoting another competing Medical Center! A waiver is used to "waive" liability, or give up rights of some kind. A contract is a mutual agreement between the parties involved.

January 25th, 2005, 11:18 AM	#4
John Britt Major Player Join Date: Sep 2003 Location: Atlanta, GA Posts: 621	I asked this question a year ago, regarding my commercial work: http://www.dvinfo.net/conf/showthrea...threadid=19777 Resident lawyer Paul Tauger replied in that thread: "The law is, independent contractors own the expression that they produce, e.g. the raw footage, absent a _written_ agreement to the contrary. Employers of employees own the expression that the employees produce, absent a written agreement to the contrary." If they've handed you a contract that says they own the footage, then signing it means that they'll own the footage. I have a clause in my Service Agreements that specifically states that I retain the rights to all the footage that I shoot and may reuse said footage in any manner, as long as it does not infringe on the company's trademarks, etc. (in other words, no use of any elements that include the company's logo or other elements that are unique to the business). Usually, as Rhett said, I'll have no other use for the footage, but you never know. I can think of a few situations where something I shot would be useful for some other, non-ad project. And certainly, signing over the rights for the footage would mean that the business could take my tape and have someone else reedit it in the future, instead of that work coming back to me. So, as Rhett said, make sure you charge extra for sole ownership rights. If my clients want to otain the rights to my footage in the future, I will gladly sell it to them.

January 25th, 2005, 12:41 PM	#5
Richard Alvarez Inner Circle Join Date: Sep 2002 Location: San Mateo, CA Posts: 3,840	Yup, that's the "general rule" I was referring to!

January 26th, 2005, 05:21 PM	#6
Paul Tauger Wrangler Join Date: Sep 2002 Location: Los Angeles (recently from San Francisco) Posts: 954	It's an interesting question, though, when the contract language says the entity retaining the videographer "owns the video shot." To me, at least, that's ambiguous, as shooting video entails two distinct pieces of property: the physical tape and content that's recorded on it. When I write license agreements for my clients who hire contractors to create IP, I'm very careful to specify that my client owns all copyright in the content created, and also include a provision that requires the contractor to cooperate in effecting the transfer of any and all such rights. Of course, I haven't seen the OP's contract, nor could I provide him with a legal opinion, even if I had. However, the phrase "I own the video shot" does not, at all, seem clear. Note that there are a number common law rules of contractual construction which apply to ambiguous terms. The most relevant ones, here are: - Ambiguities will be construed against the draftor of the agreement, i.e. if you wrote it, the ambiguous term will be given a construction most favorable to the other party. - Parole and extrinsic evidence, i.e. verbal discussion and evidence outside of the agreement, may (but not always) be considered in clarifying ambiguous terms. - Industry standard practice may be considered in clarifying ambiguous terms. Again, without having seen the contract in question, I have no way of knowing what the ownership provision means.

January 26th, 2005, 06:12 PM	#7
Rhett Allen Major Player Join Date: Mar 2002 Location: Plano, TX Posts: 607	<<<-- Originally posted by Paul Tauger : - Ambiguities will be construed against the draftor of the agreement, i.e. if you wrote it, the ambiguous term will be given a construction most favorable to the other party. - Parole and extrinsic evidence, i.e. verbal discussion and evidence outside of the agreement, may (but not always) be considered in clarifying ambiguous terms. - Industry standard practice may be considered in clarifying ambiguous terms. Again, without having seen the contract in question, I have no way of knowing what the ownership provision means. -->>> See what I mean about having an attorney review it! Is that even english you wrote up there Paul? HaHaHa! I always give everything to the client, they get to own everything. Of course they have to PAY for it. This way "they" have to keep the masters safe, and if my relationship with them is strong enough they will come back to me for continuing work. If they don't, I did something wrong but this hasn't been a problem... yet (knock on wood).

January 27th, 2005, 09:38 AM	#8
John Britt Major Player Join Date: Sep 2003 Location: Atlanta, GA Posts: 621	<<<-- Originally posted by Rhett Allen : if my relationship with them is strong enough they will come back to me for continuing work. If they don't, I did something wrong -->>> Not to stray too off topic here (although it applies to why one might want to retain rights to their footage), but I would disagree with your statement above. Many clients can see no further than the bottom line, and now that everybody (including me) and their mother has access to video editing tools, businesses are often opting for the cheapest route. I should know -- I get a good bit of my business because of my low prices, even though there is a much better (and more expensive) production company in town. And I know for a fact that regardless of how much a client liked me and my work, they will go for an even cheaper option if one is available. In fact, I have two recent examples: One of my clients has been raving about their spot since I first did it. I never thought much of the ad itself, but they love it and they say their business improved the minute they started airing it. They even recommended me to other businesses. Recently, we had been discussing shooting a new ad. Just the other day, I got an apologetic email telling me that the owner has a friend who has offered to do the next ad -- obviously, at a friend discount. Bottom line wins out over the "strength of the relationship" with the client. Another potential client recently contacted me. He said that I came "very highly recommended" and that he loved the work he saw on my site. While we were sending emails to schedule a time to meet, I got an abrupt (but polite) email telling me that he had decided to go with someone else. I later found out that one of his customers has been playing around with video work and offered to do the ad for trade. Again, the bottom line wins out. Sure, there are other variables in these examples -- a friend here, a customer with a new video camera there -- but ultimately it's the bottom line that was the deciding factor. And regardless of who it is that gets the work -- friend or not -- it's still work that doesn't come back to me (or come to me at all, in the second example), regardless of how much the client liked me as a videographer or as a person. This sort of thing happens across all service industries, especially ones -- like video production -- where the client/producer contact is limited to the once or twice a year that new work is needed (and yes, I send all my clients Christmas cards, etc., just to get that extra bit of contact!). Just my two-cents... [edit: just to clarify --- this is not to say that a positive relationship should not be cultivated, just that even if you have one, "the bottom line" can still get in the way. Like the Corleones say, "It's not personal; it's business."]