OT: Material Ownership

garo wrote on 4/10/2006, 10:10 PM
For personal reasons I would like to "cease and desist" (sp?) my relationship with a client. They paid for a finished movie a few years back. I still have the DV tapes and have offered to sell those to them. They are trying to imply that they own the DV tapes too. The invoice is specific in it's description of what has been billed i.e. the finished production. I belive I own the material. Or?

Comments

Spot|DSE wrote on 4/10/2006, 11:02 PM
If there wasn't a work for hire agreement (this is US, I don't know about Sweden) then the content is likely yours. However, if they wrote the script, or provided any creative input, it's equally likely that you can't do anything with it, regardless of who owns the actual masters. Tapes aren't important. It's what the tapes contain that is at contest. If they want the tapes, and you feel you own the content, make digital copies of the tapes and hand them the original tapes blanked out. but I surely wouldn't do that if they have even the smallest modicum of creative ownership in the content on the tape.
If there IS a work for hire agreement (again, US only) then the tapes and content of said tapes belong to them.
farss wrote on 4/10/2006, 11:46 PM
I tell you what, having read a few articles from our local copyright council this is one area where you need to be ever, ever so careful. Man, you can get burnt both ways:

Local band agrees to let you record them playing, you own the copyright to the recording.
But on the day you forget to bring any CDs so someone loans you a few, guess what, they now have a stake in that copyright.

And I think work for hire also got more complicated down here as well, haven't read all the articles but it sure started to look messy unless it was all spelt out in legal double speak.

Bob.
garo wrote on 4/10/2006, 11:52 PM
Thanks, Spot - nope they only paid for the actual finished production and I wrote all copy - the only thing in the movie they "own" is when their logotype is visable ...

UUUuhhhmmm, what do you mean by: "make digital copies and hand them the original tapes blanked out"?
Jay Gladwell wrote on 4/11/2006, 3:59 AM

This was discussed not to long ago.

Gerrie, read this, it may help in the future.


filmy wrote on 4/11/2006, 10:38 AM
My question would be this - you state the client "paid for a finished movie", which can mean many things. As an editor you rarely own the raw footage as you are only being paid to cut...or in this cae you were paid to edit a "finished movie'. That being the case you wouldn't own anything.

Now did you also shoot the movie? Again, if they hired you to be the Camera operator, unless you worked somehting out ahead of time (i.e - you supplied the stock at your own expense in order to keep footage for your reel) than, as in being hired to edit, you don't "own" what you shot.

Now I am going to toss a curve ball in - as someone who has taken many photos and done many photo shoots I was often hired to shoot however 9 out of 10 times I retained the negatives and/or the original chromes. Exceptions were when I was hired by a label to shoot promo shots for label use. They handed me the film and I handed it back to them after the shoot. I got a check for my services and that was it. But the same "keep the negatives" does noy apply to cinematographers. I don't know than many who get to keep the camera negative, unless there is some sort of money issue in which case it is usually the lab that holds the neg for "ransom".

For me, the way you describe it, this is somehting you need to look at as what was laid out before you were hired.
Former user wrote on 4/11/2006, 12:35 PM
No good will come out of trying to hold out on their materials. It will only cause bad karma for you and the client. Give them the materials and be done with it. That way, they cannot say anything bad about you to possible future clients and you will not feel like you have to look over your shoulder all of the time.

If you have made your money, best to cut all ties.

Dave T2
johnmeyer wrote on 4/11/2006, 1:29 PM
I know absolutely nothing about these issues. However, I do know quite a bit about how to make money.

The first question is how many zeros are involved in the amount you want to charge them? $10, $100, $1,000, $10,000 ... ? How much is your annual income? What percentage is the figure you are going to try to charge compared to your annual income?

Unless the law is clear -- and it sounds like it is NOT -- then you are in the middle of a negotiation. Like all negotiations, the issues are not going to be clear. You are not entirely "right," and neither are they. Therefore, you can't make a decision on what to do based solely on legal or moral grounds. Instead, you have to decide what you are going to be willing to risk (time, money, potential legal hassles) vs. what you hope to make. For $10 or $100 -- even without knowing your annual income -- clearly you should forget about the whole thing and "go home." At the other end, for $100,000, you should be willing to "go to the mats." In between, you've got to do some old-fashioned risk/reward analysis. No way anyone can give you an answer if you are in this in-between area.

In plain, crass "American": What's it worth to ya?

So what does it mean "to negotiate?" It means, perhaps, offering them something in addition to the tapes. Do they even want the tapes? If so, why? Maybe there is something even more valuable that they think they are getting by buying the tapes that you could offer them instead (like the VEG file, that gives them the blueprint on how to assemble the raw tapes into something useful).


farss wrote on 4/11/2006, 4:05 PM
This is no where near as simple as we'd like to think and the title of the thread is rather apt "Ownership of Material".
There's a world of difference between owning something and having the right to use something.
For example buyout music libraries, stock footage, even performance of talent you've paid for.
You have specific and limited rights to use that, they might be unlimited in which case then it's the same as outright ownership but that's pretty rare.
Thing is you almost certainly do not have the right to transfer those rights to another party.

What's this mean in practice.

Client pays me to shoot, edit etc a corporate vid known as xyz.
I hire talent, buy music, edit the thing etc.
They have the right to use the finished product as an entity, they can sell, broadcast or give away copies of my movie xyz.
They cannot take movie xyz to another editor and use it in movie abc without being extremely careful and they very rarely understand this. They do not not have the rights to use the production music that I've used, quite likely the release from the talent was only for movie xyz etc.

I've been on both sides of this problem, been asked to reuse production music that neither the client or I owned, they had in effect paid for a licence to use it in xyz, that doesn't cover using it in abc.

For another client of mine who does take copyright very seriously this is a major nightmare, I've been pulled off jobs because they couldn't secure rights to music that they had for xyz to use in abc. In this case xyz was on VHS and xyz was the same thing on DVD.

I'd also suggest that the very act of giving the client the tapes does not transfer copyright to them, it's quite a separate issue and one that needs to be spelt out very clealry.

Bob.
filmy wrote on 4/12/2006, 10:33 PM
Good points Bob! I had not thought about that concept in all of this - that is the "own" part of it. Seems the client here paid to get a "finished movie" and that is what they got - however it is a valid point on what does the client really "own". Case in point - last year I finished post on a feature that Lions Gate put out. I had some music placed in the film and had all the legal stuff done and, in a nutshell, it gave the producers (not Lions Gate) the right to sell or otherwise license the "finished movie" however not the seperate music tracks in relationship to this one artist. The language was very clear and very "black and white" in what could NOT be done. So Lions Gate puts out the film and when I see it there is this music played under a DVD menu....not allowed!!! However Lions Gate hold firm that they bought the "finished film" for distribution in the US and Canada and therefor "own" everything "in" the film and can do whatever they want with the material. Lions gate has promised to fight any lawsuit under the grounds they "own" the film and because the music in "in" the film they "own" it and can use it however they want - and that included pulling the music from the Music track and cutting into anything they want. Further more they say that the DVD menu is part of the "finished film" therefor the artist has no case at all. However what I turned over to the producer was *not* a DVD or any sort of promotional material - it was a "finished film". Any judge who would hear the case would only need to look as far as the "finished film" that was turned over by me and than the same film as turned over to Lions Gate. Neither have anything other than the "finished film" on it.

So this goes to what Bob mentioned as far as who "owns" what. In Lions Gate's case they have not yet made any claims they "own" the raw footage because frankly there is no way that would ever hold up in any court as they had nothing to do with the shooting of the film and only purchased distribution rights to the "finished film". Likewise I don't "own" the raw footage either - I only oversaw post on it and while I was "free" to use the footage in any way I felt fit it was only in relationship to the end result - to the "finished film". I could not go out and use any of the footage to cut into a music video for the artist in question unless I negotiated with the producers. Nor could the artist, on their own, use footage from the film to use in a music video without going to the producers first.

So bottom line is that while evertyhting was spelled out Lions Gate is still claiming they "own" whatever is in the "finished film" and are free to do whatever they want with it. Somehow I don't think garo spelled out things but even if he did you can see people still would make the claim...and the bigger they are the more power they feel they have to do so.
Jay Gladwell wrote on 4/13/2006, 4:12 AM

Obviously, I'm not a lawyer, but I have both heard from and read what lawyers have said about similar situations to the Lion's Gate episode.

It will all boil down to the two contracts--the contract between the musical artist and the producers and the contract between the producers and Lion's Gate. I dare say the latter contract will be the one that carries the most weight.

If I were a judge, or member of a jury, hearing such as case, I would find for Lion's Gate. Either they "own" the film in its entirety--and everything in it--or they don't. If they do, then they can use that material any way they see fit. If they didn't "own" the film in its entirety, I can't imagine them entering into a contract that would limit them in such a way.


Bob Greaves wrote on 4/13/2006, 5:03 AM
It is amazing to me how fragmented law is in America. Different media operate by different standards.

Musicians tend to sign their copyrights away for life to publishers. Book authors sign their copyright temporarily over to publishers.

In the printing business, the printer ownes ALL materials created by them as intermediary means to an end. They own the plates the negatives the separations and any camera ready copy they prepared. They still own it even when the only legal use they can put it to is use it for that client.
farss wrote on 4/13/2006, 5:53 AM
Yes,
but so what?
I could make a movie totally from material that I have no rights to nor own the copyright of. I own the copyright to that movie, I created it, I own IT. I can sell the copyright to that movie to anyone. That doesn't transfer the rights that I didn't have in the first place to them does it?

Sure the printer owns the plates, he made 'em, he owns them, doesn't give him any ownership of the content.

Just to be clear, as far as I know you cannot loan a copyright nor lease it or hire it. You can grant rights to use, you can sell it.

I think this is an area we all need to understand very clearly as many of us use stock footage, buy out libraries, even things like SonicFire music libraries, which I myself use.

Under their licence granted to me I can use their music in any of my productions. I can sell the copyright to my production to anyone. That doesn't give them ownership of the copyright to the SonicFire music that I've used, I don't own the copyright so how can I grant it to them?
If I did own the copyright then no one else could use that music!

Under the terms of my agreement with SonicFire I can give them the rights to the music in my production only.

The same thing would apply to FX libraries, vision loops, DVDA menu backgrounds, Artbeats libraries, the list is almost endless, I'd imagine the same things apply to Acid loops as well. Sure you make some music in Acid and you own the copyright to the whole, you sell that. Doesn't mean someone else can build a loop library and sell that using the loops in your music?

Bob.
Bob Greaves wrote on 4/13/2006, 7:03 AM
farss,

I totally agree with you but I was referring to fragmented differences in the unstated assumptions in different media circles.

In my project studio I am set up for audio and video production.

If Joe Z. hires me to record and produce a song he wrote. Without a contract it is a work for hire. I charge for the services and can certainly keep my mechanical archive of the project but the project belongs to Joe Z. entirely. No contract required to make this the default.

If Joe Z. hires me to shoot and produce his wedding video it is a different thing. Even thogh Joe Z and his bride write their own vows and plan every moment of the events to be video taped, I charge for the services and archive the project as well, but in this case Joe Z. is not clearly the owner of the video content.

Do you see the difference? It seems to me that the default assumption with audio is not the same as the default assumption with video.
Spot|DSE wrote on 4/13/2006, 7:11 AM
If Joe Z. hires me to record and produce a song he wrote. Without a contract it is a work for hire. I charge for the services and can certainly keep my mechanical archive of the project but the project belongs to Joe Z. entirely. No contract required to make this the default.

You'd think so. But....A great example of this not being so, is that Barry Gordy owned the studio, leased to his record company. His record company, which doesn't have a "work for hire" with the artists" (although he wanted one) brings in the Jackson 5 with a Motown specified producer. On the song "I'll Be There" Gordy literally walked in, heard the song once, added the line "Just look over your shoulder" to the song, and walked out. he later demanded a producer's royalty for that contribution. It's not entirely relevant, but if you're in the room, and you add something to the song, it can be argued that you're no longer in "WFH" mode, and are a contributor. It can get really, really sticky no matter what. It sucks, but that's the way it is.Given today's lack of ethics, it's probably a good idea to CYA no matter what.
Jay Gladwell wrote on 4/13/2006, 8:01 AM

Given today's lack of ethics, it's probably a good idea to CYA no matter what.

I agree with that 110%. That is why a contract is so important!


filmy wrote on 4/13/2006, 10:52 AM
>>>If I were a judge, or member of a jury, hearing such as case, I would find for Lion's Gate. <<<

I have to ask this - so, in a round about way, you are saying that it is ok for someone to obtain rights to distribute something and, in obtaining those rights, that also gives them artistic license (For lack of a better term) to take apart the individual audio tracks and re-mix and re-use whatever element they want. (And I am *not* talking about things like TV Versions, Directors cuts, or the like - I am talking about actually extracting an element and placing into another element all together)

So with that idea in mind say i wanted, oh I duuno, Julia Roberts in my film but she would be too expensive. However I have a film she stars in that we distribute. So now I can make a new film and add any footage of Julia Roberts I want to because I "own" that footage. Likewise say i want to put out a CD so i take all th emusic on the soundtrack and put it out - rembering that I did not obtain any sort of rights to do so but by the simple fact that I "own" the film I should be able to do whatever I felt like with any of the elements.

See - io have to disagree with what you said Jay because such a ruling would blow apart everything in the future. We are sort of also heading into the ongoing threads about using music or ither footage in productions. Your comments could be used in the same way - I mean a person paid for the CD or DVD so they "own" it and can do what they want with it. It simply does not work that way.

Normally one can not re-assign rights unless otherwise stated. The agrement is really clear in that the music used was non-exclusive and to be used in the "finished film" and not any other material. (Which includes things like trailers, radio spots, TV spots, DVD menus, sound tracks) It is cear that the solo audio track was not to be pulled out and re-used or re-purposed for any reason in any media unless it was agreed upon in advance. And so on. FWIW this type of thing is not unusual - as I have said in prior threads TV shows like "Miami Vice" and movies like "Heavy Metal" too years to come out on home video/DVD because of the music clearance issues.
Jay Gladwell wrote on 4/13/2006, 12:39 PM

Nope, not the same thing at all. We're talking about one film and everything contained in that one film. We weren't talking about taking from "A" and inserting into "B". And it certainly has nothing to do with people buying CDs and thinking they own the content, you and I know that.

Too, I qualified what I said based upon contracts!

Neither Lion's Gate nor their attorneys are new to the film business. It would be totally irresponsible for them to draft a contract buying a property--in it's entirety--and not have the rights to one guy's piece of music that was contained in the film. It would foolish of Lion's Gate to enter into such a contract that limited them in such a narrow fashion.

In this day and age, it would down right stupid to buy a film for distribution and not have included the rights to release that film on DVD as the owner of the film sees fit.

Does it happen? No doubt. What we don't know is the agreement between the distributor, producers and the composer in question. Did you read any of the contracts involved? I certainly haven't!

I made a simple statement based on the limited information you provided and I stick by it. If I had all the "evidence" before me, it may result in a different opinion. But that's not the case at this time.

By the way, what movie are we talking about?

[addition]

Most, certainly not all, distribution contracts will contain language similar to this:

Producer hereby grants to Distributor the irrevocable, right, title and interest in and to the distribution of the Picture, its sound, and music in the territory (as hereinafter defined) including without limitation, the sole, exclusive, and irrevocable right and privilege, under Producer's copyright and otherwise, to distribute, license and otherwise exploit the Picture, its image, sound and music, for the term (as hereinafter defined) throughout the territory (as hereinafter defined) for Theatrical, Home Video, and Television media.

One of the key words there is "exploit" (and the above comes from a boilerplate contract, and I'm confident that Lion's Gate uses well-qualified attorneys to draft their contracts). The above also clearly defines what can be exploited, that being "its image, sound and music...," the three elements of any motion picture. If the distributor cannot exploit, or use, all three of those elements in the exploitation of said picture, then he has hamstrung himself before the gate has even opened.

Here's another example that is more precise:

Grant: Production Company hereby grants to Distributor throughout the Territory the exercise of all rights of theatrical, television (free, pay and syndication) and home video (cassette and disc) exhibition and distribution with respect to the Picture and Trailers thereof, and excerpts and clips therefrom, in any and all languages and versions, including dubbed, subtitled and narrated versions. The rights granted herein shall include without limit the sole and exclusive right:


farss wrote on 4/13/2006, 4:02 PM
Where this comes unstuck is the term "the Picture".
If 'the Picture' was produced in a linear format such as tape the rule is that 'the Picture' when made into a DVD is a different picture and they, despite all that legalise, don't have the rights to that new picture.

In one case that I was involved in there was a small peice of music used in an audio title that was originally released on cassette. We were unable to release the same thing on CD. The composer (or more to the point his agent) was now asking for 10 times what the rights to the music cost in the first place to use it in the same production but for release on CD. End result, the entire work was re recorded.

Bob.
filmy wrote on 4/15/2006, 2:54 AM
Jay -

you asked What we don't know is the agreement between the distributor, producers and the composer in question. Did you read any of the contracts involved?

And the answer is yes. As I said I did all the post on the film, was the post supervisor. As such I also oversaw the music and the contracts involved. I went over the contract line by line and as it was *not* a work for hire and as it was an existing piece (pieces) where ownership belongs to the artist it was worded in a like manner.

Also you need to keep a few things in perspective. I think what you are thinking of, and what you are quoting, are mainly based on the "picture" - as in someone who purchases the rights to *distribute* a film normally have the rights to place that film onto "any and all media" but most of the time that does not giver them any rights to extract the music tracks and do with them what they will. And, again, I gave two perfect examples of this - the TV series "Miami Vice" and the film "Heavy Metal". These projects took a long time to come out because of the music. There was not any implied "ownership" of the music other than if someone obtained the projects they would have had to either remix the entire projects taking out the music they could not use or go out and pay all the fees involved. So really the comment of It would be totally irresponsible for them to draft a contract buying a property--in it's entirety--and not have the rights to one guy's piece of music that was contained in the film. It would foolish of Lion's Gate to enter into such a contract that limited them in such a narrow fashion. is not really valid in a larger picture.

In the example you give you also give some valid phrasing however keep in mind that Lions Gate picked up domestic rights, not foreign. In your example one section states: (iii) Versions: To make such dubbed and titled versions of the Picture, and the Trailers thereof, including without limitation cut-in, synchronized and superimposed versions in any and all languages for use in such parts of the Territory as Distributor may deem advisable. and Lions Gate would have no need for this wording, nor was it given. Further more the agreement with the artist allowed for foreign sales in that permission was allowed to take the individual music track and remix it as it related to a "M & E" and only when combined with a "dubbed" foreign mix. However it was still very clear that no matter what country it was or who the distributor was the music could not be extracted for things like a soundtrack, music video, promo trailer, radio spots and so on without another agreement. This is not unusual and as far a foreign mixes go music rights have always been an issue. Scores of projects have some out in other countries that have another song on the sound track. Or vice versa.

Taking another example of what you posted: (ii) Music and Lyrics: To use and perform any and all music, lyrics and musical compositions contained in the Picture and/or recorded in the soundtrack thereof in connection with the distribution, exhibition, advertising, publicizing and exploiting of the Picture;

This is wording that is fairly blanket/common however in this case it was broken down a bit more. For example the artist was allowed to use the film name and link to any sort of offsite promotion of the film in any way he wanted. So that meant he could say "this is a song used in..." or "I have music in..." He was *not* allowed to use footage from the film in a music video. Likewise the reverse is true - the distributor is allowed to use his name in "exploiting" of the picture. It was Lions Gate's choice to *not* do this but I can assure you the damage done was worse because of that fact. Lions Gate (or any distributor for that matter) can use a clipm in its mixed form, to promote the film however no distributor can extract the individual soundtrack elements in relationship to the artists music and remix it for any other use other than how it is used in the final production - meaning the film that I turned over to the producer and they in turn sell to distributors. Trust me it goes into details beyond that.l

I just want to break down things a bit more as well. Music is not the same as having an actor/actress sign a release form saying that the producers have the right to use their name and likeness in any and all media as well as the right to use their image, likeness and/or voice in any way deemed fit. There are people who post regulary in this forum who can tell you this as well. One person I am thinking off has stated, for example, their music can not be used in adult films. Based on the concept Jay is talking about a film could be picked up for distribution and the distributor can re-edit the film in whatever manner they choose. So say they add some adult scenes. Now suddenly the contract the producers had with the aritst I am speaking of would be void provided the original contract stated the music could not be used in any adult oriented film.

I know I gave some examples in my last post and you said you are not talking about taking something for product "A" and using it in product "b" but this is exactly what could go on via the examples you give. Let me try and explain this another way. Taking footage from a project and cutting a promo is not anything new. However when it comes to music one can not just assume that any music used in a project is available for that use. Any "honest" distributor would know this. Part of the agreement includes all release forms and contracts going along with the film, so there is no real excuse for a distributor to claim "Oh well, gee whiz - we did not know we could not use it." Likewise the claim of "We paid money to distribute this film there for we can do what we want with any and all of the elements" does not hold up if there is any contract that says otherwise - and in this case there is.

One other example - as a photographer I used to always ask what the end result was to be used for. As a promo photo, well that is fairly standard stuff. However the price for that would not include placing the same image on a CD/record cover or on a T-Shirt. Why? Promotion is not always the same as sales. Because think about the fact of how most bands/acts really make money - it is from the sale of merchindise. Maybe a shirt with an artists name on sell well but maybe a shirt with your work on it sells better. Thusly the cost to use that (or license it as it were) would be more. Follow me?

And somewhat of a final thought - and Bob hits the nail exactly on the head. Lions Gate, in this case, is claiming that the music in question is part of the whole film thusly the DVD is also part of the whole film. However this is not true. Take one look at the VHS version of the film as put out by Lions Gate - there is no DVD menu, yet the full film is on the VHS and if you compare it to the "full film" as it is on the DVD it is the same. The DVD menu may be part of the whole "product" however they were not allowed to use the music they used for anything other than wat was in the contract. And here is something very very important - and something no one has mentioned so I will. On most DVD's after the end creidts, sometimes before the main credits, there are secondary credits about the DVD authoring. There are none on this DVD. Maybe Lions Gate does this in house or maybe whoever they use does this sort of thing all the time and knows they are stealing. Think about this - someone hires me to author a DVD menu. Instead of doing this from scratch I just pull music off the film, slap it under the menus and than submit a bill to Lions Gate for the work. Why should I be paid and not the artist whose music I used without their permission? *AND* give the artist zero credit their musc that was used under the DVD menus.