I’m not asking for specific legal advice, only some information about the nature of copyright law.
I was hired by a band to shoot their performance in a venue. I’ve shot performers at this venue for the venue before. But in this case, it was the band paying me.
So the owner of the venue asked, though an intermediary, for a copy of the video.
My position is that I was hired by the band, and as “work for hire” they own the copyright. If he wants a copy, he can ask the band for it after I’m done editing it and I deliver it to them. They can sell it to him, or give it to him, or stick it on a shelf.
Is my interpretation correct?
Is this:
[ul]
[li]“Work for hire” which the band owns.[/li][li]A copyrighted work which I own.[/li][li]Somehow the property of the venue (the last is my brother’s position, which I find bizarre.)[/li][/ul]
What the contract say? I suppose there isn’t one. Usually, the copyright stays with the photographer, unless the contract stipulates a work-for-hire arrangement.
I can’t imagine that the guy with the camera has any claim to copyright at all. The band produced the creative work; the cameraman is just making a faithful copy of it. At most, the editing might result in a derivative work, but the band would still have copyright to their contribution to that derivative work.
When I create art for someone my contract states specifically how the client can use and reproduce it. I might (for example) stipulate an illustration may be used for a brochure run of 5000 - no more. Or if I produce a piece of 2D fine art, the person who buys it owns that painting but does not have the right to make posters of it and sell them. That is a right I retain.
In NZ, the situation is slightly different: If I am asked to photograph/film something the copyright is held by the person who has hired me unless I choose to contract out of the law by getting the client to sign their copyright to me.
In the US: From Photo Attorney: (not specific to videography, but should be relevant )
I very much doubt the work you did was “work for hire” in the terms that that phrase is usually understood, and that you indeed do hold the copyright, and the owner is correct (and good on him for doing so!) in approaching you for copies.
I was studying photography, we had a class that was dedicated to the law and industry. I’m from Australia.
The photographer owns copyright unless a agreement has been made other wise. If you have not talked about it, they are yours. You may sell the copyright to the band. If you sell the copyright, you still have your moral rights, which can not be removed from you. Your moral rights are:
Right to attribution
Right against false attribution
Right of integrity
ecseas has it right. The photographer owns the copyright to the photo. (Moral rights don’t apply in the US, but he’s right about other countries where the concept is part of the law).
But this is a video, and the situation is muddied. You cannot publicly show the video, since you would need to get permissions from the songwriters (thorough a clearinghouse like ASCAP). But a photo belongs to the photographer unless he specifically signs an agreement to give up the copyright.
Since you were hired by the band to shoot the video, then it is a work for hire. The band owns the copyright and they have the final say in what can be done with it (other than a public performance of it).
Unless there’s a contract, as said above, the person creating the work owns the copyright.
Take an example from wedding photographers. In Canada (and the USA) they retain ownership, and if you want extra prints you must come to them. Photo printer (I.e. Walmart) generally actively prevent the reproduction of photos that they suspect are copyright by someone else. I assume the same holds for professional video.
OTOH, the songs - music and lyrics - are copyright too, by someone. You cannot distribute the video wothout the permission of those copyright holders. (There’s a whole topic on documentaries on accidentally captured copyright materials, liability insurance, etc.) Even if you freely gave a copy to the venue owner, if he in any way publicly shows it (to promote his business) he must also get permission unless your permission included all distribution rights…
The copyright belongs to the videographer/photographer unless the work was done as a salaried employee during the process of performing their normal work duties. In other words you have to be working full time for the band using their equipment and your job description is something to the effect of Event Photographer. Not bloody likely the case here.
The case where this would apply would be a reporter for a newspaper.
The arrangement in the OP is not a work-for-hire, so far as I can tell. It certainly isn’t in the still photography world, unless you have a contract stating so or are a full-time employee of the band (and your work contract usually contains clauses to this effect.)
This suggests to me–and this is how it’s always been explained to me from the still side of photography–that the creator retains copyright unless otherwise agreed to. I understand the audio is a separate issue here, but the video part should certainly be the videographer’s copyright, unless otherwise stated.
However, I am not a lawyer, and copyright law can be tricky. Perhaps a videographer or IP guy could chime in.
Now, it is my understanding that most video guys DO sign work-for-hire contracts. That’s not unusual to the industry. But in the absence of one, I don’t see how the video portion of the footage belongs to anyone but the OP.
That’s normally true, but it is also possible to create a specific contract that is work-for-hire. A person writing a DC comic or a Star Trek novel is a freelancer but the usual procedure is to have work-for-hire written into the contract. That’s the sticking point in this example. I thought that the contract had to literally have the words “work-for-hire” in it, as a result of rewritten copyright laws to curb the abuses of the old days. I’m not sure how a verbal contract would be interpreted. But if it were me I’d take the course that the OP did: tell the owner to see the band.
I would quibble with this terminology. Assigning a contract is a different procedure than a work-for-hire. In this case the OP never had the copyright in the first place, therefore can’t assign it to anyone else.
Exapno, I’m confused. In the first half, it sounds like you agree that this wasn’t work-for-hire. In the second, you say he didn’t have copyright in the first place. How so?
Under the Copyright Act of 1976, the U.S. copyright law (which preempts all state law in the area), a copyright in a motion picture or photograph is held by the person who created it. The fact that the motion picture might incorporate a performance in which the performers hold the rights or might incorporate a composition in which the composer holds the rights are separate issues, but important ones. If you, as the owner of the copyright in the motion picture, want to copy, perform, or distribute the motion picture, then you have to obtain “synch” rights from the other copyright owners.
Regarding the question of a “work made for hire,” under 17 U.S.C. § 101, the motion picture is only a work made for hire if you’re either an employee or (if you are a contractor or freelancer rather than an employee) of there is a written contract that states that the work is a work made for hire:
In a work-for-hire situation you never have the copyright at all. The owning entity has the copyright from the beginning. It negates the presumption that the creator has the copyright from the moment the work is created.
That’s why the agreement has to be made before the work is created.
As your cite says, work-for-hire is supposed to be written down and signed first. I don’t know if a verbal agreement has any force. The venue owner could make problems about this in court. But since both other parties are in agreement that this was work-for-hire, and almost nothing of this sort ever gets to court, we’re doing theoretical moot court exercises here.
For it to be a work for hire, the agreement must be written. Oral agreements do not count under U.S. law.
If there is no written agreement that specifically states that the copyright interest in the works created pursuant to the agreement belong to the employer, then the videographer is the author and holds the copyright unless there is an assignment of rights.
17 U.S.C. Sec. 204 requires assignments of copyright to be in writing.