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Who owns the rights? ... "Re-selling" a video production?

lizperry's picture
Last seen: 2 years 5 months ago
Joined: 07/01/2012 - 12:42pm

Greetings fellow video people. I'm new here, so please forgive me if I'm not posting this in the right place.

Here's my question: I recently completed production on a short testimonial video clip for a client in Switzerland. Without going into the whole cross-border thing (as my company is based in the US), I wondered about what rights I now have to this video piece I produced.

Long story short, the video was done for a Swiss company, but now the American parent company of the subject being interviewed would like to obtain a "copy" of the finished piece to use for their purposes. Since there was no clause in my contract that mentions any redistribution rights, I'm just wondering if there is any default or general rule. I'm pretty sure I could sell any raw footage I want, but not sure the finished piece belongs to me at all. ...

Hope this isn't too confusing!

Thanks for any help!

E


D0n
D0n's picture
Last seen: 6 months 2 weeks ago
Joined: 11/09/2007 - 5:28pm

unless specified somewhere in your written contracts, you the content creator own the copyrights. Now that won't stop them from suing you, contract or no... but if it's worth fighting over, it was worth protecting... you need to have contracts and releases signed BEFORE you shoot. Good luck. I'm not an attorney, however I have impersonated one from time to time for nefarious reasons... so take that into consideration, use my advice at your own peril.
;0)


birdcat's picture
Last seen: 2 years 2 months ago
Joined: 10/21/2005 - 10:09am

Hi Liz -

First - I am not an attorney- I would highly recommend you seek out the advice of one who specializes in intellectual property law for a real opinion.

That said, there is much written about whether what we do is (or should be) considered a work for hire. It has been my understanding that unless specified otherwise in a written contract it is, which limits your rights and strengthens theirs.

If you wanna make your head spin, do a google search and read: click here

Bruce Paul 7Squared Productions http://www.7squared.com


composite1's picture
Last seen: 8 months 3 weeks ago
Joined: 12/11/2008 - 7:54pm
Plus Member Moderator

Liz,

More than likely you had some sort of contract between you and the Swiss company. Probably a 'work-for-hire-agreement'. If that's the case, it's doubtful you have any rights at all unless they were stipulated in the agreement/contract. According to US copyright the 'publisher' of the work is considered the rights holder. Now on the odd chance you didn't have a formal contract, It is likely a court would say that the Company was the Publisher since they commissioned you and paid you in full to create the work. They more than likely own the logos and processes featured in the video and could reasonably expect full ownership of the product.

Now, that said had they not paid you in full then you'd be free to do with it what you wished until they paid for your services in full plus any penalties. First thing is to check the agreement/contract you signed with them and then check it again with a lawyer to catch anything you may have overlooked. Now you said it was the 'Parent Company' that wanted a copy. Best thing to do is contact the Swiss company and let them know of the situation. If they are a subsidiary of a larger company, then there shouldn't be any real issues unless there are processes or other sensitive elements the smaller outfit wouldn't want to be seen.

H.Wolfgang Porter, Composite Media Producer Dreaded Enterprises Unlimited, Inc. www.dreadedenterprises.com


Jack Wolcott's picture
Last seen: 11 months 1 week ago
Joined: 01/02/2008 - 11:51pm
Plus Member

Again, I'm not an attorney; but I've been in the business a very long time and have gone through a great many contract negotiations, often sitting in with our attorney. It's absolutely imperative that anyone doing video work have a contract and that included in the contract is a clause spelling out who owns the copyright for work done.

The link below is to the government's explanation of copyright and "work for hire," and I've included the introduction to the article. As you can see from these, the question of what constitutes "work for hire" is extremely complex. There's no point in getting embroiled in this, and you don't have to if your contract spells out exactly who owns the material from the shoot and, if it's you, how much you're to be paid for each use of it. An hiring an attorney to oversee the preparation of your contract is the best money you can spend; with a large company, the guys on the other side of the table from you have a staff of lawyers on retainer, just waiting to jump on the details of your contract should the occasion arise.

http://www.copyright.gov/circs/circ09.pdf

Introduction
Under the 1976 Copyright Act as amended (title 17 of the United States Code),
a work is protected by copyright from the time it is created in a fixed form. In
other words, when a work is written down or otherwise set into tangible form,
the copyright immediately becomes the property of the author who created the
work. Only the author or those deriving their rights from the author can rightfully
claim copyright.
Although the general rule is that the person who creates a work is the author
of that work, there is an exception to that principle: the copyright law defines a
category of works called works made for hire. If a work is made for hire, the
employer, and not the employee, is considered the author. The employer may
be a firm, an organization, or an individual.
To understand the complex concept of a work made for hire, it is necessary
to refer not only to the statutory definition but also to its interpretation in cases
decided by courts.


paulears's picture
Last seen: 1 week 5 days ago
Joined: 11/05/2006 - 8:36am

Sadly, I agree with the others. You don't have any rights in the product at all - unless you specifically withheld them. Virtually all of my video work falls into this category. I've got some really good stuff on the shelves, but I can't use it. It's the sort of thing that you do get used to. Contracts are very useful things, but frequently are overlooked when there seems little point, as the project is already agreed - in terms of when, where, how much, what for etc - ownership of copyright seems to be something we avoid expecting it to get in the way of the project, when it works the other way in most cases.


D0n
D0n's picture
Last seen: 6 months 2 weeks ago
Joined: 11/09/2007 - 5:28pm

I am not in agreement with this "Work for hire" line of reasoning... in order for "work for hire" to be binding, it must be specified in a written contract, otherwise the creator owns it. There are many in business that apply the "work for hire" method on assumption that they own your work, and in practice many who do the work ASSUME getting paid means giving up rights, but if it isn't in writing, it is actually the creator who owns the copyright....
being right doesn't always mean you get your way though.. you have to factor two other things... the costs (legal, time, stress etc) and the loss of a client, or being bad mouthed in a business that relies on word of mouth...


composite1's picture
Last seen: 8 months 3 weeks ago
Joined: 12/11/2008 - 7:54pm
Plus Member Moderator

Don,

You are both correct and incorrect. The WFHA is a contract by which specific criteria must be met in order to be binding. All points must be stipulated clearly in writing and the Agreement must be signed prior to the commencement of work or exchange of money. When those conditions are met, the 'Creator' becomes the person or entity commissioning the work. However, it should be stated in the agreement that the full transfer of rights will be completed upon full payment of services rendered. There should be a period of time which allows the rights to revert to the 'Hiree' should full payment not be made. Hard to get that stipulation when dealing with large entities since ofttimes it's their WFHA or contracts you'll be dealing with. Here's a link detailing the conditions of the 'Work for Hire Agreement':

http://copylaw.com/new_articles/wfh.html

H.Wolfgang Porter, Composite Media Producer Dreaded Enterprises Unlimited, Inc. www.dreadedenterprises.com


D0n
D0n's picture
Last seen: 6 months 2 weeks ago
Joined: 11/09/2007 - 5:28pm

good to know Composite1, as I generally use my own contracts, and I seldom give up rights to my work, except for magazine work, where they pay well, and use their contracts.... it always helps the negotiations when you open with "Your standard contract or mine?" "let's compare" followed by "well I don't mind SELLING you the full rights..."
so since I've ALWAYS been a stickler for written contracts, the whole work for hire issue has never been an issue for me.


composite1's picture
Last seen: 8 months 3 weeks ago
Joined: 12/11/2008 - 7:54pm
Plus Member Moderator

"...I've ALWAYS been a stickler for written contracts, the whole work for hire issue has never been an issue for me."

Don,

Same here. I am the same way. However, when you work with really big companies it's rare they'll go with 'your agreement or contract'. Main things I fight for are the payment schedule and the right to show completed material for my company's promotions. Most times I don't have problems with the latter. On rare occasions especially with the big outfits, they'll get lazy on the payment schedule if you don't stay on them. I quit working with one of those because their idea of '30 Days' was more like 'whenever we get around to it.'

H.Wolfgang Porter, Composite Media Producer Dreaded Enterprises Unlimited, Inc. www.dreadedenterprises.com


CraftersOfLight's picture
Last seen: 7 months 4 days ago
Joined: 02/17/2009 - 5:42am
Plus Member

Is there a particular reason the Parent Company is not asking the Subsidiary directly for a copy of the video?

Could they be trying to "work around" some intellectual property restrictions?

I agree with looking into legal counsel on this.

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