OK, one of us is confused. Maybe both of us even. But as I read the OP, he is the videographer, and he did not sign any sort of work-for-hire clause in any sort of contract (as there does not appear to be a contract.) We both seem to agree, then, that failing a work-for-hire contract, the copyright should fall to the creator, who in this case is the videographer (aka the OP.)
I agree that without a signed written contract, the work-for-hire agreement isn’t legally enforceable. But I feel that it clearly existed even if it was being done on a handshake basis. Gaffa wrote: “I was hired by a band to shoot their performance in a venue…My position is that I was hired by the band, and as “work for hire” they own the copyright.”
Now why a videographer or any creative professional would default to a “work for hire” assumption is beyond me. There’s nothing to be gained and everything to be lost for thinking that way.
These two sentences together really have no meaning. Under U.S. law, for something to be a work made for hire, it must be memorialized in a written agreement. Without such a written agreement, there is no work made for hire. That’s the end of it. There is no such thing as a “handshake” work-for-hire agreement. Period.
OK. But that provision was introduced specifically to protect creators.
What I find interesting about this situation is that the creator and the band are in agreement and an outside third party is asking for the creator to act against his interests. That’s not the intent of the law, but it could mean that the creator is stuck regardless.
In that case, the easiest thing to do is for him to assign the copyright now. That would force the owner to deal with the band.
The other interesting question it raises is what an outside party can demand to see of raw footage. Courts have compelled news gatherers to reveal raw footage, so it’s not inviolate. Outside of court there can be no such compulsion, except to keep a good working arrangement. We don’t have any idea why the owner wants to see the footage, either. The owner can’t do anything with it no matter who owns the copyright, but it may be the reverse, that the owner wants to suppress it.
Always get it in writing. A one-page contract would have settled this.
I’m not clear whether he’s being asked to act against his interests or not. It seems to me he has done this before and has freely given copies to the venue operator. I’m assuming he had no written contract then either, so the copyright ownership situation is the same. Was it against his interests then? If not, why is it against his interests now?
I agree with this.
That struck me, as well. It’s like the OP doesn’t even really want the copyright. If that’s the case, then why not draw something up signing it over to the band, just to avoid any complications.
I mean, the only debate here is whether the videographer or the band hold copyright; the owner of the venue has no claim to it at all.
I don’t see that the OP has even discussed this matter with the band yet, much less come to agreement with them on it.
He’s not defaulting to that, necessarily.
He said,
So clearly there was some kind of discussion beforehand. Maybe he should clarify exactly what was said. But it sounds to me like both parties were clear on the deal.
If videographer and band both understand that they made a verbal agreement in advance that amounts to work for hire, the fact that this is legally unenforceable shouldn’t really be important; gaffa should keep his word.
It probably is a good idea to put this deal in writing now, though, and to write contracts for future work to avoid misunderstandings and after-the-fact disputes.
Quoth Ascenray:
It’s my understanding that oral contracts are perfectly legitimate, so long as there’s no dispute between the parties to the contract as to what the contract was. And it looks like, in this case, there’s no dispute between the OP and the band.
The question of whether the videographer has a copyright is kind of irrelevant to the situation here, though, anyway. Regardless of whether the OP has a copyright on the recording or not, the band certainly has a copyright on the performance (and the songwriter also has a copyright on the song). So if the venue owner wants a copy of the recording, he’ll still have to get permission from the band, in any circumstance. He might (or might not) also need the permission of the OP, but that doesn’t matter much here, since it looks like the OP is willing to give permission.
(Can I make a second request for you to use the native quoting function? You’re making more work for the rest of us.)
Oral contracts in general are legitimate under state contract law. However, oral agreements are not effective in certain specifical contexts, for example, under the Statute of Frauds. And, specifically, as I said, the Copyright Act of 1976, which preempts all state law in the relevant field, states that agreements that a work is a work made for hire must be written. This overrides the general effectiveness of oral contracts. I’ll quote the relevant statute again:
Well sure, they discussed his shooting the video. But the matter at hand is whether the OP or the band is the appropriate party for the venue owner to address for a copy of the video. I see no indication that the OP and the band discussed this particular detail, and certainly no statement that they are in agreement on the issue. The OP is referring to his position and his interpretation, with no mention of what the band thinks about it. For all we know the band has no knowledge yet that the venue owner even wants a copy, and I see no indication of what the band’s position or interpretation is.
If that was your understanding, and it was also the understanding of the band, it seems a awful lot like offer and acceptance in the sense of a verbal contract.
But, you are the only person other than the band that has any legal standing, and have already said you believe the work to be the property of the band. So, the Venue operator is pretty much out of the picture, other than wanting to buy a copy from someone. You haven’t expressed any interst in using the tape and it’s performance of copywrited works of others, so you got no dog in that fight either.
Since you are not exhibiting the greed reflex upon which legal services are founded, you don’t need a lawyer. Give the tape to the band, and tell them the venue wants to buy a copy.
Tris
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“Verbal” means either oral or written.
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As I stated before, twice, under U.S. copyright law, in order for a work to be a work made for hire, *you must have a **written *contract.
Here is my take on this.
The OP feels morally the the band should have the copyright. Before this tread, they may have even felt that the band legally held the copyright but hopefully their ignorance is fought that this is one of those times that an oral contract is not sufficient or enforcable. So the OP owns the copyright and can give it to the venue owner if they want to.
To handle the ethical delimma, I would say to sign over the copyright for a very nominal consideration. I don’t know if it could be for the money they already paid you for shooting the video.
Is there any case law confirming this in which an oral contract was at issue? I’m not trying to be snarky, just wondering because so few cases actually make it to court and it would be interesting to see what was written.
There are probably cases that touch on this issue, but I don’t have any off the top of my head. Really, no case in this area is going to say much more than “the statute says explicitly that a work is a work made for hire only in the case of an employer-employee relationship or when there is an agreement memorialized in writing,” with a quote from and a citation to Section 201(b). It’s pretty cut-and-dried.
I certainly agree that the OP should not give a copy to the venue owner without the express written consent of the band! As has been noted, regardless of who owns the video, the band still has rights to the performance.
Sorry about the verbal/oral thing.
But if you don’t want the rights which the contract would protect or convey, you don’t have to protect those rights, or have a contract. The opinion of the law is not important, unless you want the property, and even then it isn’t important unless someone else wants it too.
The law is there to settle a conflict that in this case does not exist.
Tris
Verbal can mean either oral or written. But its primary current meaning is spoken as opposed to written. So if somebody refers to a verbal agreement or a verbal contract, it should be taken as a oral contract unless otherwise specified.