Who is in the right here?

Davon Slininger · September 7, 2006

Ok, my first mistake was not getting a written agreement before this all started. Here is the issue:

About a month ago now I shot a short film for an aquaintance who called me up to DP this project for him. It was a complete indie production with about 90% of the crew donating their time, including myself. I shot XL-H1 to mini DV. We did 3 days and shot about 7 hours of tape. Since then he has been in post working on editing and I have been quietly awaiting any news on a cut before asking to capture footage of my own for my reel and personal use etc.

Our agreement before entering the project was that in return for DP'ing the short, I would get a copy/ and or capture of the entire footage shot. It was verbal. I called him prior to commiting to the project to meet exclusively regarding that issue and I said "All I want for shooting this is a copy of all of the footage." He agreed entirely responding "Of course. I will provide you with a copy of everything, you are shooting it after all."

Yesterday we got into an argument regarding credits and my crew in which he was very insulting. Promptly afterward, I asked for either contact info for his editor so that I could bring a hard drive for captures, or the actual tapes so that I could capture them myself, wanting to be entirely done with this whole thing. His response was that he has decided that he will not release any footage to me at all until he has completed a final cut. And even then, only the final cut will be released to me.

It is completely aggrivating. I wouldn't care much about it but I feel like I did some great work on this project. All I want is to capture 7 hours of footage and walk away. Who is in the right here? Do I have the right to demand the footage? Does he have the right to withold it from me? If this ends up in a legal forum do I have the right to sue for the property? Who's property is it anyway. He purchased the tapes but creatively where does the issue of ownership lie?

Phil Rhodes · September 7, 2006

Hi,

In most civilised countries, it's yours, but that probably won't make any difference as it probably isn't worth going to court over.

I have had exactly this issue myself and it's particularly problematic. It became an issue for me when I was doing a bit of Steadicam work on the occasional music promo, where inevitably your nice long carefully-rehearsed move gets cut up into a thousand pieces and doesn't look anything at all.

Unfortunately in this business you are applying to an oversubscribed field and this effectively means that the employer can do more or less what they like to you.

Phil

September 7, 2006

This has come up one the forum before. If you are paid by the producer to do a job and they buy the film stock and you work for them on a day rate, the film belongs to the producer. The DP has no legal claim to "his work" other than getting credit for it under a union agreement or freelance agreement made in writing. I don't know of any situation where employees own the the work they produce for an employer. If you put cars together for GM, GM owns the final car not the workers. If an ASC member is hired by Paramount to shoot a feature, Paramount owns all of the final footage, none of it belongs to the DOP.

In your case you worked for free, but as you pointed out the director did buy the blank media and it was his project not yours. Obviously you would have to sort this out in small claims court as the cost of hiring lawyers will not be worth it. Even going to small claims will be a lot of time and paper work, plus he has to get served some how. Then here's the kicker, even if a judge rules in your favour, the court will do little to nothing to enforce the judgement if he still refuses to comply.

Law enforcement has a lot better things to do than to send the sheriff over to his house to get some mini DV tapes.

If the judge rules that the tapes are his property, which I expect he would, then it would have all been in vain. As judge Wapner always said, "get it in writing."

R,

Michael Collier · September 7, 2006

I would be very firm with him. It sounds like you wont work with him again, so burning bridges is no issue (sounds like he poured the gasoline anyway) I would remind him of your agreement. I would remind him exactly how much work you put out for absolutley no pay. I can see being an a**ho** about keeping footage under wraps until premiere, but for demo work on a free project, I would think that he has no leg to stand on. I also think he should give you a dub of every tape (if it makes him feel better about it, dub it with no audio?). It is afterall, the reason you shot it for him for him (emphasis on the 'FOR HIM' part).

Then I would carefully remind him that the agreement for shooting was for a dub of every tape, and if not paid up, then his footage is not clear for any kind of use (work for hire only counts if the work gets paid for. otherwise its work for slavery, and yeah thats totally illegal). Remind him that until he pays up so to speak you have a right to sue and put an injuntion on his film from ever showing to the public (threat of injunction to enter film fests will be a bigger threat than a sheriff at his door). Your payment was those dubs. This is no different than a producer not paying you. I get very mad when I hear of things like this, because in all honestly it probably isn't the type of movie that needs to be kept under tight wraps until premiere. This situation seems like jackass people acting badly. You have some legal recourse, but I think just impressing on him that he may never be able to play his film to a paying or non-paying audience until those tapes are delivered may make him give up the tapes.

Jonathan Benny · September 7, 2006

Yesterday we got into an argument regarding credits and my crew in which he was very insulting. Promptly afterward, I asked for either contact info for his editor so that I could bring a hard drive for captures, or the actual tapes so that I could capture them myself, wanting to be entirely done with this whole thing. His response was that he has decided that he will not release any footage to me at all until he has completed a final cut. And even then, only the final cut will be released to me.

Normally, I wouldn't expect anything but the final cut of the film. But it sounds like you agreed to do the job based on his promise to give you all the footage (I personally wouldn't make such a promise as I would not want anyone else having control over how scenes are cut - even for a reel - but in any case...). Based on what you wrote, it also sounds like this problem came up due to an argument.

I would try to resolve the dispute somehow so that you can have a say in how the film is color-corrected (something I am assuming you want to do) and then patiently wait for the final cut and then add excerpts of that to your reel and move on. I wouldn't get too confrontational about this. Sounds like he's in the wrong, but think first about what you want before making threats and making things worse. You want a good, clean, color-corrected copy of the film for your reel? If that is your objective, than make your decisions based on that goal. If you threaten him and pressure him for uncorrected, unedited footage that he has already said he isn't going to give you, then you might find yourself digging a hole to nowhere and just making things worse.

I say get in on the color correct, wait for the final cut, put it on your reel, get the next job. (and in future, get things in writing).

Good luck,

AJB

Adam Frisch FSF · September 7, 2006

I don't know of any situation where employees own the the work they produce for an employer.

Except for still photographers. They own their work, even though someone else paid for it. They simply had better lawyers dealing for them when all this was once agreed upon, or something.

September 7, 2006

Except for still photographers. They own their work, even though someone else paid for it. They simply had better lawyers dealing for them when all this was once agreed upon, or something.

You're saying if I'm on staff and salary with a newspaper shooting stills, that I would own the photographs I take while on company time?

R,

Jonathan Benny · September 7, 2006

You're saying if I'm on staff and salary with a newspaper shooting stills, that I would own the photographs I take while on company time?

I believe in some cases the rights go to both the newspaper and the photographer - each with particular usage clauses. But it is not automatic. It has to be specified in the staff contract. With no specific clause relating to rights, the rights go to the photographer.

AJB

Except for still photographers. They own their work, even though someone else paid for it.

It really varies from situation to situation. In some cases the rights go to both parties.

In the case of no contract, or lack of appropriate clauses in contracts, you are right, the photographer automatically owns the rights to the photographs even if they are being paid by someone to take the pictures. I don't believe you need a lawyer to negotiate this. Its something that I think is automatically covered in the copyright act.

AJB

Stuart McCammon · September 8, 2006

Except for still photographers. They own their work, even though someone else paid for it. They simply had better lawyers dealing for them when all this was once agreed upon, or something.

Which is why you only see photographs posted with a few of the stories on newspaper web sites, because they have to pay a seperate fee to the photographer for any use other than printing it with the original story.

Adam Frisch FSF · September 8, 2006

The copyright is always the photographers. But the use of that exclusive copyright can be licensed away and that's what happens when someone else pays for the job.

Matt Workman · September 9, 2006

Hi,

Having shot a few projects for free and a few getting stiffed on some, I've come up with a battle plan. On shoots like this if you want footage for you reel or the symbolic payment (no deal memo payment) at the end of the day I hold the tapes. At the end of the project, they dont' get the tapes until they have paid. In your case you could just capture them on your own.

I rarely take projects of this nature without some sort of deal memo or contract, now. But after being burned a few times, if I don't personally trust the producer/honcho I protect my interests. No one else will.

Matt

PS: Many times I have been the editor or I am friends with the editor. This is always a good position.

Mark Dunn · September 9, 2006

In the UK, a photographer as employee does NOT own the rights to his work. He does if he's self-employed, although many publishers have tried to bypass this with take-it-or-leave-it contracts. The exception if work commissioned for a private purpose, such as weddings or portraits, where although the photographer owns the copyright he can't publish it without the commissioner's permission. Most photographers acquire this permission through contract wording.