Who owns the copyright?

[Ian Scanlan]

I regularly film bands with 2 XL2's and produce dvd's for the bands (also flash file). I also use stills from the footage for uploading to a website. My question is: who owns the copyright from a legal point of view of the material which I have filmed? I obviously appreciate that the music isn't mine. But what of the video itself and of the still images. Any legal types out there who can shed some light on the issue? Thanks in advance for any guidance.

[Barry Gribble]

Not a legal type, but I can basically answer it...

In a sense, you both do. You can't use any video of the band, or their photos, or certainly their music without their permission in writing. Likewise, they can not use your videos or photos without your permission in writing, unless they paid you and it was agreed ahead of time that it was a work-for-hire (even then, something in writing is useful).

[Jonathan Kirsch]

Barry's got the basic gist of it. The best way to make sure is write up a contract (it protects both you and the client...make sure they realize that)...and include who owns which rights. Doesn't take too long to write one up. If you need a template, let me know. I got a coouple.

Jonathan

[Ian Scanlan]

Cheers for all the advice.

[Anthony Park]

Originally Posted by Jonathan Kirsch

Barry's got the basic gist of it. The best way to make sure is write up a contract (it protects both you and the client...make sure they realize that)...and include who owns which rights. Doesn't take too long to write one up. If you need a template, let me know. I got a coouple.

Jonathan

Hi there
I would be interested in a look at that template you mentioned for a very similar situation if thats possible. Thanks

[Jonathan Kirsch]

Anthony...

E-mail me (e-mail is in my profile).


Ian...I might have another form that talks about copyright...again, it's for the U.S., though, since it's about registering stuff for copyrighting. Let me know if you want it.



Jonathan

[Jonathan Kirsch]

Alright, kids. I've received a lot of requests for this, so I'm just going to post a link to download it. I am not cool enough to have my own website, so I'm just going to post a link you can follow to download it. It's in Word form, so you can edit as you like. It's a simple Project Confirmation Agreement that came with a very handy book I purchased called "Business and Legal Forms for Graphic Designers" (3rd Edition) by Tad Crawford and Eva Doman Bruck. It basically comes with a CD-ROM that has about 45 different forms you can alter to fit your business or need, along with an explanation of how they're used. I'd highly recommend purchasing it. I use this form to protect both myself and my client. Don't know how it will hold up in courts other than U.S. courts, but I guess it can be changed to fit what country you are in.

Anyway, I don't know how long the link lasts (I think a week), so download whilst you can. If I get more requests, I might re-post it.

Here's the link: http://download.yousendit.com/BDE722274D1869CC

Jonathan

[Steve House]

Originally Posted by Ian Scanlan

I regularly film bands with 2 XL2's and produce dvd's for the bands (also flash file). I also use stills from the footage for uploading to a website. My question is: who owns the copyright from a legal point of view of the material which I have filmed? I obviously appreciate that the music isn't mine. But what of the video itself and of the still images. Any legal types out there who can shed some light on the issue? Thanks in advance for any guidance.

IANAL ... There's a difference between copyright and rights to use the images wherever you want. Copyright deals with issues surrounding the reproduction and publication of the work and automatically evolves to the creator of the images, whether video or still, unless you are an employee making them in the course of your regular job duties or there is a written employment that explicitly makes the gig a "work for hire" (in which cases the copyright belongs to your employer). So unless you are a regular employee (taxes withheld, etc) of the band, employed at a TV station and taking those pictures as part of your job there, or employed as a camera operator by a production company making music videos, or some such thing, you own the copyright plain and simple. However, what you can do with those images is another story and other laws and precedents come into play when you publish them or show them publicly or use them in advertising, etc. For instance, the band would have to your permission and you could demand a fee for them to reproduce one of your photos on a CD cover because you own the copyright to the photo. But you would need to get their permission and similarly they could demand payment as a condition of that permission to use that same photo on a web site promoting your video services because they own the rights to any commercial use of their likenesses.

In simple terms, you could view the distinction as being one of who owns the photograph or video itself and who owns the thing being photographed. Both parties rights need to be considered.

[Sharyn Ferrick]

Steve
There was a US supreme court case re this (COMMUNITY FOR NON VIOLENCE VS REID) , and there is a much broader definition of employer/employee. It is always best to get a written agreement, but it is more complex than what is being stated here.


http://www.copyright.gov/circs/circ9.html

The definition of a employee is an issue, and also there are a specific set of conditions that must be met IN ADDITION to a written contract to make it a work made for hire.

As you stated, there is a vast difference as to who holds the copyright and who has rights, and also who needs to be listed as the author.


Sharyn

[Steve House]

Originally Posted by Sharyn Ferrick

Steve
There was a US supreme court case re this (COMMUNITY FOR NON VIOLENCE VS REID) , and there is a much broader definition of employer/employee. It is always best to get a written agreement, but it is more complex than what is being stated here.

...

Oh yes, I realize it's a bit more complicated than I said ... was just trying to relate the basic gist of it is all ... an employer owns the copyright to work produced by his or her employees in the course of their employment, the creator of the work holds the initial copyright otherwise in most cases, but just holding copyright doesn't necessarily also convey the right to use, sell, or publish images publicly because other factors (right to privacy, right to commercial use of likenesses, etc) also enter into the final disposition. To carry the example to an extreme, the producer of illegal images such as child porn would own a valid copyright on the images but that doesn't make it legal for him to create or publish them.

[Seun Osewa]

How can you possibly think you own the right to music videos you were paid to record on behalf of a band? Work for hire means you were paid to do something on behalf of someone, period. And that's exactly what happened here.

[Steve House]

Originally Posted by Seun Osewa

How can you possibly think you own the right to music videos you were paid to record on behalf of a band? Work for hire means you were paid to do something on behalf of someone, period. And that's exactly what happened here.

Common sense would make you would think so but that's simply not the case. There are very specific definitions of "work-for-hire" in the copyright laws and simply being paid by someone to make images for them (or create music for them or write an article for them, etc) doesn't in itself automatically make it a work for hire. In almost all cases, work done by freelancers, independent contractors such as magazine and advertising photographers, and retail providers of creative services such as wedding photographers, is NOT 'work-for-hire' unless the written employment agreement specifically says that it is, even though they're being paid for it by their clients. About the only time it is automatic, other than the specifics spelled out in the law, is when you are a staff employee - work supervised and directed by the employer, taxes withheld, etc - who creates copyrightable works in the regular course of your employment. Then the employer owns the copyright (hence a TV station owns copyright on the images shot by their staff cameramen and a newspaper owns copyright on the pictures made by their STAFF photographers - but not to those purchased from a freelancer unless the photographer conveys the rights to them as part of the terms of the sale). If you were a magazie publisher and hired a New York fashion photographer to shoot the photos for an article on a new line of swimsuits, what you get for your (very substantial pile of) money is essentially a time-limited exclusive license to use the images he has made for you for specific purposes and usually in specific geographic markets, but almost always he will retain the copyright on them.