Who owns the footage?

Michael Ziersch · June 2, 2009

Hello all.

I apologise if this is a stupid question but I'm trying to get as many opinions as possible.

My production business was hired a few years back to produce a live in concert DVD for a hip hop act, which turned out very well and the band was very happy.

Fast forward to a few months back and the band want another live DVD to accompany their new album, so we are hired to film the show. We were paid a sum for equipment and crew for the one night.

The footage looks great and the band instruct us to start editing the show straight away. We have put in approx 100 hours so far. At the same time the band hires another company, a far far bigger and better known one to produce their new music video, as we are busy handling the live stuff.

I assumed the bigger company would be in the ear of the band asking about the DVD etc, and exactly that has happened, the band emailed me today saying the live DVD has been 'put on the backburner while we tour' yet they are asking for all of the raw live footage ASAP.

I'm presuming they want to hand the footage to the larger company to handle and edit instead of us. We had no written agreement on who was going to edit the footage, but they assured us several times verbally we would be.

So. We were paid for the shooting of the concert. We haven't been paid for any of our editing hours.

Should we just hand over the raw footage? Who owns the footage?

A big thanks to anyone who read all that. Any advice?

edit - I must add all of the footage is data on my HD. No actual tapes or hard copies.

Edited June 2, 2009 by Michael Ziersch

A. Whitehouse · June 2, 2009

Don't give them the footage unless these are people you trust or you're willing to never see a dime for the hundred hours of editing. They may not rip you off, maybe they're stand up people but the fact you're asking this question suggests something may not be right. Follow your instinct.

My only suggestion is be honest with them about your concerns, and be sure to mention the hours of editing already put in but I wouldn't give them anything until you've had that conversation. I've had this happen to me a couple of times and it sucks because you often do the whole gig for less because you know you'll make some back editing it.

Best of luck...

David Rakoczy · June 2, 2009

All this should be worked out 'on paper' in an agreement before doing anything else. Next time, first things first. ;)

Chris Bowman · June 2, 2009

Hello all.

I apologise if this is a stupid question but I'm trying to get as many opinions as possible.

My production business was hired a few years back to produce a live in concert DVD for a hip hop act, which turned out very well and the band was very happy.

Fast forward to a few months back and the band want another live DVD to accompany their new album, so we are hired to film the show. We were paid a sum for equipment and crew for the one night.

The footage looks great and the band instruct us to start editing the show straight away. We have put in approx 100 hours so far. At the same time the band hires another company, a far far bigger and better known one to produce their new music video, as we are busy handling the live stuff.

I assumed the bigger company would be in the ear of the band asking about the DVD etc, and exactly that has happened, the band emailed me today saying the live DVD has been 'put on the backburner while we tour' yet they are asking for all of the raw live footage ASAP.

I'm presuming they want to hand the footage to the larger company to handle and edit instead of us. We had no written agreement on who was going to edit the footage, but they assured us several times verbally we would be.

So. We were paid for the shooting of the concert. We haven't been paid for any of our editing hours.

Should we just hand over the raw footage? Who owns the footage?

A big thanks to anyone who read all that. Any advice?

edit - I must add all of the footage is data on my HD. No actual tapes or hard copies.

This all depends very much on what your written contract with the band (if one exists) actually says, and I am not a lawyer, but here's my take. You were told to both film the night and edit the DVD, and since this is the same arrangement you have had in previous dealings with this band you have a reasonable expectation of being compensated under the same terms of the previous DVD. You have already performed considerable work in the expectation of being compensated as you were for previous work.

This would seem to meet all of the criteria for an implied contract-in-fact, meaning you were in fact contracted to use this footage to produce a DVD with all of the editing and post-production which that entails. Although not quite as solid a defense as a written contract, the law takes these contracts very seriously. You have every right to place a lien against the band by withholding delivery of the film until you receive compensation for the hours worked, and any usual fees associated with the editing and production process. They may still give the both the footage and the DVD project to the other production house, but only after they have paid for the work you have done with a reasonable expectation of compensation.

Unless your written contract states otherwise, here's what I think should be done. Tell them in writing as plainly and pleasantly as possible that you were instructed by them both to film the show and to produce the DVD, and that production of that DVD from filming to final finished delivery is an exclusive right which belongs to you. Inform them that they do not have copyright to the footage until you have been paid for the DVD (or at the very minimum, work done). The payment which they have made to you was for the services of your camera crew and rental of the equipment and until you have received payment in full (as under the terms which you were compensated for the previous DVD) you are not willing to release the footage or transfer the copyright.

Phil Rhodes · June 2, 2009

I agree with all the previous posts and as far as I know they're right, in any civilised country.

However, I suspect what's actually going to happen is that you're going to end up handing over the footage and not getting paid for your ten days' work.

This mainly happens when a big, powerful company convinces your client that paying Big Powerful Inc more money than the client were paying you for the same work is a good idea. Usually the line taken is an appeal to fear: "Oh, this is far too big a job for Small Independent Corp [you], you should get some professionals to do this." This despite the fact that you generated, pitched, and funded the job...

Quite how Big Powerful Inc pulls this sort of trick off amazes me, but it happens all the time, it's called poaching and you'd be amazed how many Big Powerful Incs there are in the world who owe their success to the technique, usually by stealing jobs they wouldn't admit to wanting.

Two prominent UK facilities places have done this to me...

P

Chris Keth · June 3, 2009

I assumed...

I'm presuming they want...

We had no written agreement on who was going to edit the footage, but they assured us several times verbally we would be.

You assumed...you're presuming...so you basically didn't do poop for homework or paperwork to protect yourselves?

Definitely don't give them any footage if there is no written agreement as to who owns it. As for your editing time, you can try to bill them for it but, without written contracts that specify that they want that service and will pay X for it, you're basically f'ed there too.

Sorry to tell you but you have conducted your business very stupidly and you're going to pay for it now, unless you are very, very lucky.

Edited June 3, 2009 by Chris Keth

Mark Bonnington · June 3, 2009

Fast forward to a few months back and the band want another live DVD to accompany their new album, so we are hired to film the show. We were paid a sum for equipment and crew for the one night.

The footage looks great and the band instruct us to start editing the show straight away. We have put in approx 100 hours so far. At the same time the band hires another company, a far far bigger and better known one to produce their new music video, as we are busy handling the live stuff.

If they paid you to shoot footage at their concert, then it's classified as work-for-hire and they own the raw footage. They don't own the edited footage however, unless they paid for edited footage. Give them the raw stock if that's all they paid for.

When they subsequently instructed you to edit the footage, did they say they would pay for that service? If they didn't mention that they'd be paying you for the editing, then you probably spent 100 hours working for nobody. You could argue the issue in court, implied fees and all that, you might even win, but the legal hassle probably outweighs the financial reward. Plus, even more relevant to your profits, most bands have a tendency to network with other bands (backstage talks, music stores, music forums, etc.). If you burn a bridge with that one band, you could end up burning lots of other bridges as the news spreads. If you're good to the band though, that positive reference might spread too. So, perhaps think of the 100 hours as time spent advertising.

But in the meantime, as a practical approach, maybe try mentioning to the band that you've already put in 100 hours on the edit, show them what you've finished so far (explain the laborious aspects), and then ask them if they want to pay you to finish the edit.

Also, even if they turn down your edit this time, when they get the other company's version it might not be any better. The band is going to think back to your version, and they might just say "hey, on this next project lets use that first guy. His work was as good as the mega corp and he didn't take as much of our money."

Edited June 3, 2009 by Mark Bonnington

Chris Bowman · June 3, 2009

Phil's comment brought up another thing which would be important to know, what country are you in? Also, is the band's primary place of business in the same country?

My knowledge of contract law is limited to the US legal system, and while there may be legal parallels in another country, it is equally likely that there are not.

Remember also that you really don't want to go to court if you can help it. Find out what your rights are, and inform the customer of them, but try to maintain a positive business relationship if at all possible. They may only need reassurance that you can get the job done. There may be something about the way their other production house does things that they like and which you normally don't do, but could if you knew they wanted it that way. They may have been offered a lower price for the work which you could match (it's usually better to take a one time hit if it means you keep a customer's repeat business). Find out what they want, and let them know that you can accommodate them. If they absolutely want to give the DVD project to the other production house, tell them you'll release the footage if they will pay you for the work already done. If you went to court you could probably be compensated for the entire job (assuming US contract jurisdiction) but the costs, damage to your relationship to the band, and damage to your company's reputation from their word of mouth would almost certainly not be worth it.

Make it clear that you don't want to give them a hard time, but that you deserve to be paid for the work they asked you to do.

Michael Ziersch · June 4, 2009

Thankyou all for your sound advice.

I am based in Australia. So is the band. They did tell us a budget on how much we would get to complete the project and we agreed and started work.

I did fail to mention an important point in my last post, that we became good friends with the band from the last project, I count one of the members as one of my best mates.

So this is why there were no written agreements or contracts drawn out.

I'm confident we will work something out.

I will post links when it gets released!

It was our biggest job so far, a sold out theatre crowd of about 5000 people, we used 7x sony EX1s including one on a 24 ft jib.

The lighting guys did a fantastic job and hence the footage looks really good.

Now I just hope I can edit it!

David Rakoczy · June 4, 2009

Always have business ventures in writing... ESPECIALLY when dealing with friends. It only makes sense. If, together, you can't put an agreement together on paper, there is no use in moving forward. Go get a beer together.

Hope all works out for everyone.

Adrian Sierkowski · June 4, 2009

Totally agree that you need to have some form of written agreement for all big productions like this. Even for my closest friends/people I work for often, I spell out exactly what is expected/needed.

Best of luck, though, and if they're good friends I'm betting they're not out to burn you; see what you can work out with them and most importantly try to figure out why they went with the mega-corp in the end so as to attempt to keep that from happening in the future.

Michael Ziersch · June 5, 2009

The Mega Corp has been trying to get the band on their books for years... as one of the head honchos is a big fan of the band.

The Mega Corp is quite mega... They would be one of the largest in this country, they have about 6 different production companies under the same umbrella, work on commercials, feature films, television. In our film/tv district in my city they own about 90% of the buildings along one of the major roads.

The band didn't use them last time as the company charge biblically expensive rates, but this time the company lowered their pricing to the same as us just to get the project. They wouldn't be making any money at all. In fact I'm pretty sure they would be making a loss.

The band went into their offices to plan their music video and were dazzled by all the facilities and studios etc... and compared to my crappy little home editing suite I simply could not compete.

Phil Rhodes · June 5, 2009

.... largest in this country..... 6 different production companies.... commercials, feature films, television..... own about 90% of the buildings.... biblically expensive.... compared to my crappy little home editing suite I simply could not compete.

Yes, and they'll probably spend an absolute fortune doing it the accepted way, which will gain your client nothing, but your client will nonetheless walk away with an empty bank account but a lovely warm glow.

You, my friend, are what we generically call **(obscenity removed)**ed.

P

Tom Jensen · June 5, 2009

Possession is 9/10ths of the law.

Alvin Kromka · August 17, 2009

My situation was slightly different.

I was paid $100 to do multimedia for a show. As a bonus I got my relatives, who are professional film makers to come and film the event. I said I would edit it together as an xmas gift to the performers. No commitments or agreements were made. I put together a promo clip and uploaded it to youtube.

Everyone was happy except one performer who sent me an abusive email as she was not happy with her performance and in turn slagged off the whole production. I re-edited the promo, taking her out and continued editing. I received another abusive email and decided to put it on hold.

Fast forward to January and suddenly there has been a change in attitude. Now she is claiming to be a producer of the show and wants the entire show edited and forwarded to her fictitious production company ASAP. I did not respond. The emails kept coming, this time threatening legal action. I had been assured by my Uncle (who filmed the show and is a professional editor) that she had no rights to the footage only to her image. So, I didn't have to give her anything, but I would need permission to use her image.

I relayed this information to her through the actual producer and the legal threats stopped.

Unfortunately in the creative service area everyone wants something for nothing yesterday and they will try and pull one over you until you let them know that you are not a doormat. Know your rights and don't cave in. Unless there is a signed contract stating that you are paid to film the show and that the artist has complete rights over the footage I cant see how they can legally retrieve it.

I could be totally wrong though. Is there a lawyer in the house?

BTW they were friends of mine as well. Were. I eventually gave them the footage once they understood that I wasn't going to give in to bully tactics.

Alvin Kromka · August 17, 2009

Not sure if this is allowed (didn't see anything in forum rules regarding youtube clips) and I apologize if it isn't, but someone just sent me a funny clip that illustrates the frustrations of having to deal with clients.

http://www.vendorclientvideo.com/