An interesting conversation at DVinfo.net

Mike Cook · December 5th, 2005, 09:53 AM

This had to be removed for legal reasons. go figure.

Rick Steele · December 5th, 2005, 10:09 AM

Quote:

Originally Posted by Mike Cook

Obviously some of the above is a gross oversimplification

That's easy for you to say. :)

I have come to the conclusion that each time I wake up until the time I go to bed, I've violated at least 17 laws - most of which I didn't even know about.

Right or wrong... I can see why many videographers simply take their chances with copyrighted materials and hope for the best.

I still don't know why the music industry doesn't have some kind of "affordable" limited mechanism in place for us. I'd gladly pay.

Steve House · December 5th, 2005, 10:31 AM

RE: "Work for Hire," it's my understanding that even the written agreement declaring that a work will be a "work for hire" may not be sufficient to actually make it so. I've read in a few places that the nature of the employer/employee relationship is also taken into account and when push comes to shove, the creator of the work (the videographer) must be a true full or part-time employee of the hire'er subject to all the statutory conditions of employment such as withholding for income tax, social insurance, unemployment insurance, etc. in order for it to be considered a work for hire. If the person contracting for the created work puts the creator on payroll and gives him a W2, they own copyright under "work for hire." If they give the creator a 1099 or pay an invoice as a retail customer, the creator owns the copyright (absent a written transfer). If the conditions of employment are not met, any agreement declaring the work to be "work for hire" is null and void.

Perhaps you can confirm and comment?

Ken Ehrhart · December 5th, 2005, 01:52 PM

I’ve unfortunately had to deal recently with someone trying to usurp
my copyright... so I've done substantial research and gotten
legal advice from my IP attorney’s. Here goes...

COPYRIGHT LAW states:

In the case of works made for hire, the employer and not the
employee is considered to be the author. Section 101 of the
copyright law defines a ''work made for hire'' as:

(1) a work prepared by an employee within
the scope of his or her employment; or

(2) a work specially ordered or commissioned for use as:
- a contribution to a collective work
- a part of a motion picture or other audiovisual work
- a translation
- a supplementary work
- a compilation
- an instructional text
- a test
- answer material for a test
- an atlas

IF THE PARTIES EXPRESSLY AGREE IN A WRITTEN
INSTRUMENT SIGNED BY THEM THAT THE WORK
SHALL BE CONSIDERED A WORK MADE FOR HIRE....

The important line is the last one, in BOLD.
Everything MUST BE in writing when it comes to
determining if copyright has indeed been transferred.

Marybeth McPeters, The United States Register of Copyrights
told the US Ccongress in 2000 the following: (and I quote)

''The 1976 Act, however, made a clear distinction between works prepared
by employees in the course of their employment and works prepared on
commission, a distinction that is still maintained today. Works prepared by
employees in the course of their employment are categorized as works
made for hire, with authorship, and thus ownership as well, recognized
in the employer. In contrast, commissioned works can only be considered
works made for hire if they fall within certain specified categories,
and even then, only if the person commissioning the work and the
person or persons accepting the commission agree in writing that the
work to be created will be considered a work made for hire.

The Copyright Act permits an author to transfer any or all of his
exclusive rights. Typically an author would do so in return for
financial compensation perhaps a single payment or a continuing royalty.
As a protection to authors, the law requires that the transfer be made
by means of a signed written conveyance.''

Again, the key phrase is:

“ONLY IF THE PERSON COMMISSIONING THE WORK AND
THE PERSON OR PERSONS ACCEPTING THE COMMISSION
AGREE IN WRITING THAT THE WORK TO BE CREATED
WILL BE CONSIDERED A WORK MADE FOR HIRE.”

If there is NO CONTRACT, the law gets a bit "muddy".

The Supreme Court, in 1989, in
Community for Creative Non-Violence v. Reid, 109 s.Ct. 2166 (1989),
commonly simply called “the RIED CASE” used a series of “factors”
to determine who owned the copyright in that case.

THE FACTORS ARE:

1. The right to control the manner and means by which the product is accomplished.

2. The skill required.

3. The source of the instrumentalities and tools.

4. The location of the work.

5. The duration and relationship between the parties.

6. Whether the hiring party has the right to assign additional projects to the hired party.

7. The extent of the hired party's direction over when and how long to work.

8. The method of payment.

9. The hired party's role in hiring and paying assistants.

10. Whether the work is part of the regular business of the hiring party.

11. Whether the hiring party is in business

12. The provision of employee benefits.

13. The tax treatment of the hired party.

Hope this helps.

Ken Ehrhart, owner
(the REAL) SUMMIT Productions
www.STORYtellermovies.com

Steve House · December 7th, 2005, 06:12 AM

Excellent run-down Ken, Thanks

Bob Costa · December 7th, 2005, 08:44 AM

Of course, who owns the copyright is a different issue re: work-for-hire than who is violating another persons copyright (assuming that was the original point of the thread - now deleted).

Mike Cook · December 7th, 2005, 09:45 AM

Yeah, the original post resulted from two questions.

Can a client make their own copies of the DVD provided without infringing on our copyrights?

Can music recorded incidentally (band, DJ) be on the finished product?

Sorry about the deleted post, lawyers apparently don't like being quoted. It seems they fear being sued if someone follows their advice. Can you think of any other industry that is so adept at creating market demand internally??

I mean, really? It occurs to me that this is one industry that the laws of supply and demand don't apply or act as a brake. Since lawyers make up both sides of the equation (plantiffs and defendents) there is no control. Short on work? Sue someone! You just employed yourself AND someone else. Yeah!

Sorry, early morning caffine fueled rant there..

Mike

December 5th, 2005, 09:53 AM	#1
Mike Cook Regular Crew Join Date: Mar 2004 Location: Portland OR Posts: 190	An interesting conversation This had to be removed for legal reasons. go figure. Last edited by Mike Cook; December 5th, 2005 at 11:38 AM.

December 5th, 2005, 10:31 AM	#3
Steve House Inner Circle Join Date: Mar 2005 Location: Hamilton, Ontario, Canada Posts: 5,742	RE: "Work for Hire," it's my understanding that even the written agreement declaring that a work will be a "work for hire" may not be sufficient to actually make it so. I've read in a few places that the nature of the employer/employee relationship is also taken into account and when push comes to shove, the creator of the work (the videographer) must be a true full or part-time employee of the hire'er subject to all the statutory conditions of employment such as withholding for income tax, social insurance, unemployment insurance, etc. in order for it to be considered a work for hire. If the person contracting for the created work puts the creator on payroll and gives him a W2, they own copyright under "work for hire." If they give the creator a 1099 or pay an invoice as a retail customer, the creator owns the copyright (absent a written transfer). If the conditions of employment are not met, any agreement declaring the work to be "work for hire" is null and void. Perhaps you can confirm and comment? __________________ Good news, Cousins! This week's chocolate ration is 15 grams!

December 7th, 2005, 06:12 AM	#5
Steve House Inner Circle Join Date: Mar 2005 Location: Hamilton, Ontario, Canada Posts: 5,742	Excellent run-down Ken, Thanks __________________ Good news, Cousins! This week's chocolate ration is 15 grams!

December 7th, 2005, 08:44 AM	#6
Bob Costa Major Player Join Date: Nov 2004 Location: Venice, FL Posts: 850	Of course, who owns the copyright is a different issue re: work-for-hire than who is violating another persons copyright (assuming that was the original point of the thread - now deleted). __________________ You are either growing or dying.

December 5th, 2005, 01:52 PM	#4
Ken Ehrhart Tourist Join Date: Oct 2004 Location: Albuquerque, New Mexico Posts: 4	I’ve unfortunately had to deal recently with someone trying to usurp my copyright... so I've done substantial research and gotten legal advice from my IP attorney’s. Here goes... COPYRIGHT LAW states: In the case of works made for hire, the employer and not the employee is considered to be the author. Section 101 of the copyright law defines a ''work made for hire'' as: (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as: - a contribution to a collective work - a part of a motion picture or other audiovisual work - a translation - a supplementary work - a compilation - an instructional text - a test - answer material for a test - an atlas IF THE PARTIES EXPRESSLY AGREE IN A WRITTEN INSTRUMENT SIGNED BY THEM THAT THE WORK SHALL BE CONSIDERED A WORK MADE FOR HIRE.... The important line is the last one, in BOLD. Everything MUST BE in writing when it comes to determining if copyright has indeed been transferred. Marybeth McPeters, The United States Register of Copyrights told the US Ccongress in 2000 the following: (and I quote) ''The 1976 Act, however, made a clear distinction between works prepared by employees in the course of their employment and works prepared on commission, a distinction that is still maintained today. Works prepared by employees in the course of their employment are categorized as works made for hire, with authorship, and thus ownership as well, recognized in the employer. In contrast, commissioned works can only be considered works made for hire if they fall within certain specified categories, and even then, only if the person commissioning the work and the person or persons accepting the commission agree in writing that the work to be created will be considered a work made for hire. The Copyright Act permits an author to transfer any or all of his exclusive rights. Typically an author would do so in return for financial compensation perhaps a single payment or a continuing royalty. As a protection to authors, the law requires that the transfer be made by means of a signed written conveyance.'' Again, the key phrase is: “ONLY IF THE PERSON COMMISSIONING THE WORK AND THE PERSON OR PERSONS ACCEPTING THE COMMISSION AGREE IN WRITING THAT THE WORK TO BE CREATED WILL BE CONSIDERED A WORK MADE FOR HIRE.” If there is NO CONTRACT, the law gets a bit "muddy". The Supreme Court, in 1989, in Community for Creative Non-Violence v. Reid, 109 s.Ct. 2166 (1989), commonly simply called “the RIED CASE” used a series of “factors” to determine who owned the copyright in that case. THE FACTORS ARE: 1. The right to control the manner and means by which the product is accomplished. 2. The skill required. 3. The source of the instrumentalities and tools. 4. The location of the work. 5. The duration and relationship between the parties. 6. Whether the hiring party has the right to assign additional projects to the hired party. 7. The extent of the hired party's direction over when and how long to work. 8. The method of payment. 9. The hired party's role in hiring and paying assistants. 10. Whether the work is part of the regular business of the hiring party. 11. Whether the hiring party is in business 12. The provision of employee benefits. 13. The tax treatment of the hired party. Hope this helps. Ken Ehrhart, owner (the REAL) SUMMIT Productions www.STORYtellermovies.com

December 7th, 2005, 09:45 AM	#7
Mike Cook Regular Crew Join Date: Mar 2004 Location: Portland OR Posts: 190	Yeah, the original post resulted from two questions. Can a client make their own copies of the DVD provided without infringing on our copyrights? Can music recorded incidentally (band, DJ) be on the finished product? Sorry about the deleted post, lawyers apparently don't like being quoted. It seems they fear being sued if someone follows their advice. Can you think of any other industry that is so adept at creating market demand internally?? I mean, really? It occurs to me that this is one industry that the laws of supply and demand don't apply or act as a brake. Since lawyers make up both sides of the equation (plantiffs and defendents) there is no control. Short on work? Sue someone! You just employed yourself AND someone else. Yeah! Sorry, early morning caffine fueled rant there.. Mike