Image Ownership

[David Battistella]

With all of the talk of archiving. It began to get me thinking, it will not be hard for a RED DP to keep copies of the images he/she captures.

This will make us a bit more like photographers in terms of image ownership. IN the past few years I have been keeping copies of all pertinent images for possible later use. ( my own stock library as it were).

With RED this seem s like a great idea and the images will be amazing. I think it will also be value added to you clients. Your "on set laptop" could be a digital image library that will allow clients to buy some addditional shots.

If you shoot in the same city all of the time and end up getting a horrible weather day a stock skyline might be appealing.

Isn't it time DP's/Cinematogrphers started owning the image? THink of it as a pension plan for Freelancers, the way musicians get Royalties.

David

[Jeff Kilgroe]

This is how I've always approached shooting anyway. Probably because I started with photography and then moved into video... I retain copies of everything I shoot and retain rights to it and sourcing of originals, etc... as much as possible. If a client requires a different arrangement, that's fine too, it's just spelled out in an agreement beforehand. Actually it all is, I don't just show up and shoot anything without a signed contract/agreement that specifies who owns what, when they get it, how it's paid for, etc..

An on-set library sounds like a good idea. Could be very useful.

[Tom Lowe]

Interesting topic. My DP who works with me has copies of all the stuff we have shot together, mainly so he can use it in his reel. As far as ownership, I would think, on a feature, that the production company would "own" the footage, right?

[David Battistella]

Interesting topic. My DP who works with me has copies of all the stuff we have shot together, mainly so he can use it in his reel. As far as ownership, I would think, on a feature, that the production company would "own" the footage, right?

Yes. I sort of equate "day for hire" DP camera people to the musicians of the 30's and 40's who would sign contracts to perform a few songs and give up all royalty rights.

I'd like to see more DP's retaining the rights to their images, but on a feature it makes sense to turn over all ownership as you are shooting fiction for one specific story.

With documentaries, it gets a bit more compelling.

David

[Kevin Halverson]

On most all narrative projects, the DoP is employed by the producer/production company. Even if the camera (or any item for that matter) is owned by the DoP, this is usually treated as a rental to the production. Rights to the image(s) are owned by the entity that pays the bills, and in the case of narrative work, this isn't typically the DoP.

[Tom Lowe]

Then again, if a DP were to call me up and ask to use some extra footage from a feature we shot together, I'm sure I would say yes unless there was some real reason not to.

[Steve Gibby]

A "Work for Hire" clause in a contract is a critical legal factor in determining who owns copyright to images.

When I produce my own projects, my crew contracts specifically spell out their agreement that their work is a Work for Hire and that they acknowledge that all right to the images is retained by me. When I shoot for others I most often end up having to sign contracts that have that same clause in them - it's a Work for Hire.

When I produce for other entities (networks, etc.), their contract with me, and their contracts with the rest of the crew, invariably contain Work for Hire clauses that unequivocably assign copyright to them - and everyone working on the production has to sign a contract.

Side note: A significant part of my business plan is licensing stock footage. My stock footage is represented in non-exclusive contracts, and I always retain copyright to the stock that I shoot. It is licensed out - never sold. Stock footage licensing is "the gift that keeps on giving", or as I call it "mailbox money". Once you've shot it, and if you're represented well, it just keeps generating licensing checks. The most valuable asset of any production entity, large or small, is it's footage library that it owns the copyright to - thus the wisdom of a Work for Hire clause in every contract that its possible to include it in...and don't forget to get signed releases from people recognizable in your stock...licensing clients will need them.

[Kevin Halverson]

Then again, if a DP were to call me up and ask to use some extra footage from a feature we shot together, I'm sure I would say yes unless there was some real reason not to.


It would really depend upon both the intended usage of the footage and the subject matter.

If a DoP that you worked with asked to use footage for their reel, that would be appropriate and is nearly always provided.

If the DoP wanted to use footage that they shot during your project in another project then it could be treated as stock footage and licensed, assuming that the producer had clearance to use it outside of the scope of the original project. If the footage showed talent (or any identifiable location) then the producer likely wouldn't have clearance themselves and therefore couldn't pass along title that they didn't have. Footage without clearance would be nearly impossible to obtain E&O insurance and would jeopardize the entire project.

[Tom Lowe]

Yeah I'm saying if a DP friend who worked with me maybe wanted to grab an unused sunset cutaway shot or something, and the intended project was appropriate, I'm sure I would say yes, unless I specifically had in mind to use that shot for my own features or projects later.

[David Battistella]

On most all narrative projects, the DoP is employed by the producer/production company. Even if the camera (or any item for that matter) is owned by the DoP, this is usually treated as a rental to the production. Rights to the image(s) are owned by the entity that pays the bills, and in the case of narrative work, this isn't typically the DoP.

If you look at a musician, they can go into a recording studio and record. The studio does not own the recording, but the musician and the producer do. This is the shared arrangment.

In Photography, the person who snaps the shot, owns the shot, unless they have signed the right away to an employer or something.

In film, I think a DP/director could begin to think about some ownership where it is pre negotiated.

On day for hire, I think it's as Gibby said. They pay you to give up all rights to the image.

David

[Kevin Halverson]

If you are being paid to provide a service, the outcome of the service you provide is conveyed to the person paying you, this is typical and in my opinion, equitable. This is the terms of most all contracts that even allow you access to the situation that you end up shooting for them. Think of a situation where the DoP isn't the op on every shot (often the case). Don't they still have the right to claim that it was their work, despite the fact that they might not have been the individual that hit the run/stop button? With an AC pulling focus, a dolly grip moving the camera, a camera op and a DoP, who's image is it? The comparison to a still image shot by a "photographer" doesn't apply in a lot of motion projects.

I am not trying to be argumentative here, and actually I have no objection to negotiating a better deal for DoP (hell I would love a better deal myself) but in the end, if the producer doesn't have clear title to the work produced, then how is the project even going to get financed in the first place? Without the money flowing based upon clear title, no one gets any work and no one gets paid.

Just my $.02 on the subject.

[Chris Gearhart]

Good points, KH. I typically treat the footage as mine as DP unless something is in writing, though. Everyone involved with getting some part of the image on the screen has some pound of flesh vested in that image, but the DP, IMO, is the head of that department and is responsible for the image that gets there (the DP is the "camera op" regardless of who is actually operating the camera). Given no other contractual stipulations, I consider the DP to license the use of the image to the producer for the film.

But typically there is, as Gibby stated with characteristic clarity, a contract that is a mutually agreed upon statement of ownership, which of course takes precedent.

[Jeff Kilgroe]

I just wanted to add my $0.02... Shooting film/video as a DP or cinematographer, etc.. carries with it the same rights to the imagery created as one would have as a photographer or traditional artist.

Copyright laws differ around the world so that's always something to be considered... But in most of the Americas and Europe, they're fairly consistent. It seems many DP and video/cinematographer type jobs usually come as a work for hire arrangement. And if you're hired for one, you're usually being paid to create video footage for whoever hired you and relinquish all rights to it upon completion. This happens in the photography world to, but photogs over the years have been a lot better at making sure they hold onto their negs to create a source for future revenue. There's no written law that gives a still photograph superior ownership rights vs. a video clip.

Before shooting anything with any type of camera, there should be a contract or agreement that is executed by all parties. If not, then ownership of material can come into contest at any time down the road by anyone who may have a vested interest. If you're going to be shooting something that would benefit you keeping rights to the footage, then by all means, try to negotiate such a deal to make that happen.

[Keith Nealy]

http://www.digitaljuice.com/magazine/articles/2006_034_vtx.asp

Work Made for Hire
Who owns the footage you shoot for your clients?
by Mark Levy


This is an article that is a good overview about who owns what. It doesn't cover the more difficult arrangement of DP's on a movie set, however.

As a creator of complete productions, I never sign a work for hire arrangement and the client only has rights to the finished production, not the rolls of tape that went into the production. And, the client doesn't have the right to alter my work without my permission.

As a long-time photographer shooting stock, a client would pay a lot more for exclusive rights and complete ownership.

Keith

[Stephen Williams]

Hi,

Often a DOP will base his fee on use, change the use and more money is payable! When a client wants a special price to shoot 1 x 30 second commercial for local distribution only, then the agency cuts a 10, 20 & 40 second version for use world wide, I can ask for more money!

Stephen

[David Battistella]

Kieth and Jeff,

You both make great points here and I think an important note is how the technology is handled. A photographer dealing with negatives would generally handle the "post production" on those negatives as well, meaning they reatin them and possesion being nine tenths of the law, own them.

Typically a DP for hire hands the material off to a third party arranged by the clinet/producer"

Here is where it is changing with RED and other tapeless formats. With the need to clone or hand off footage the DP is going to have the opportunity to retain the orginal copy of the shot footage. I see this as a great benifit to the DP and producer alike. If a DP wants to go to the expense of storing and preserving these images, then I think they should be able to sell them too. (as long as it's set out at the get go) The benfit to the producer is that they do not absorb the cost of archiving, etc.

I like Kieths model, you get the rights to the finished product, but I keep the rolls. Exclusive agreements mean a negotiated higher fee. It's a professional way of doing things.

I am enjoying the reading in this thread.

David

[Kevin Halverson]

I see a large difference between images which contain a performer and all other types of images.

Even in the DoP somehow retained ownership of the "original" material (effectively the negative), they can't do anything with the images if they have people in the frame and these people don't provide a "model release" as you would obtain in still images.

Guild actors won't and more importantly can't give up the rights to their performances for use in anything other than the contractually named project that they were hired to perform.

Think of what might happen if a DoP (photographer equivalent) were allowed to extract even a single frame and then sell it to another entity and that entity ended up using for something like a commercial advertisement? That actor would have a "conflict" in perpetuity and would never be able to accept future work in the product category where the conflict developed!

That is why the guilds require that commercial use have a finite expiration point in time (the term is cycles, and are most often 13 weeks in duration). I still see a very large difference between union narrative projects and trying to equate them to non union still practices. The images that result from the talents performance are never "in the clear" in terms of ownership beyond the project that they were hired to perform for.

Now, if you shooting a bunch of non union "actors" in a bunch of locations without releases, then who knows who really owns the rights to these images. Even if you were to be able to find someone that wanted to license them from the shooter, would they have clear title, at least clear enough to satisfy an E&O insurer?

I don't think using the example of a still shooter's images that have model and location releases is a good concept when it comes to narrative feature projects. They are just too different in terms of ownership rights.

[Chris Gearhart]

Yes, very interesting thread.

I personally keep all the "original" rolls, be they tape or HDDs or whatnot. I hand over a copy to an editor or, if a commercial project, to the client, or sometimes bring it through post myself.

But the originals remain mine to archive or dispose of as I see fit. A few times at my discretion I have handed over the originals over, but now that I think of it, those times I wasn't DP--I was a camera op. So, I suppose I am fairly consistent as a DP keeping things.

EDIT: KH, I agree--without actor releases you can't actually do anything with it. Kinda like my Microsoft stock: can't do anything with it but it's still, unfortunately, mine. Dang it.

[Kevin Halverson]

Narrative feature projects shot on film are the benchmark in terms of how things are "normally" handled. A DoP doesn't typically purchase the film stock, they aren't the entity that is being billed by the lab and they don't take legal possession of the negative at any point in time. Digitally originated material (tape) really follows the same concept of ownership as film, despite the obvious differences in the process. Now, if you are shooting as an owner/operator, then you might have purchased the media (tape) and your contract with the producer/production company might specify that you retain ownership of the "original" material, but again, what are you going to do with it if you don't have the rights to the subjects (talent) contained in the media?

I don't see that "filmless / tapeless" situations will be all that different. The continuation bond provider is going to define what is the original (HDD, CF or whatever) media is and they are going to dictate who owns it, where and how its going to be stored and what will happen with it (I don't know many photographers that have an insured film vault). If, as a DoP you don't and won't agree to these terms, how do you expect to get hired on to a project in the first place? Even if the producer were inclined to work with a contract that doesn't have you hand off all title to the images, who is going to finance a project by such an obviously uninformed producer?

Again, even if you own the camera that produces the original images, you are typically "renting" this to production under a separate agreement for the duration of the production period (and this is another potential source of income to a future RED owner).

I do want to make if very clear that my comments are based upon the common practices of narrative (and more often than not, union) productions. I don't want it to be misunderstood that I am discussing any other types of situations (ENG, stock images, etc).

Again, just my $.02 on the subject based upon my experiences.

[David Battistella]

KH,

You are making very valid points pertaining to the feature industry and I certainly would not debate this. This is the way the feature industry is set up.

I am thinking more about documentary production, where much of the same applies, but there are some special circumstances, where footage could be owned by the DP. I think nature guys, for example should own their images and license them, or an underwater shark specialist.

But then again, I'm sure you'd wrap that all around a production company.

"day for hire' seems to be the key phrase.

David

[Kevin Halverson]

As I said, I don't have experience in areas outside of features. I fully agree about situations like nature and other similar stock footage. When talent gets involved, things get very specific for many of the reasons that I stated.

Who knows, maybe some day on set, between setups, I will turn the camera toward a great sunset, slap my own CF in the camera and grab a few frames for that are my own to sell or license to the highest bidder! But if I happen to catch some talent picking their nose while walking to their trailer, I don't think I would have the same rights to the images.

[Dan Blanchett]

My point of view, as a producer/director, is that in most cases (particularly high-profile productions) the person or persons paying for the footage to be acquired should own the rights, even in docs. Not to could possibly degrade the value of the final production.

Imagine if many of the cool shots in Planet Earth were showing up in other productions, because the DPs licensed or sold their footage to a host of other parties. Seems like that would devalue the Planet Earth series by making it less unique.

But like Gibby and others have said, that's what contracts are for. Personally, I don't think I would risk hiring a DP without insisting on owning the footage. Although I do understand a DP's desire to retain the title. Both the DP and producer have to be comfortable with and understand the arrangement.

[Jeff Kilgroe]

I don't think using the example of a still shooter's images that have model and location releases is a good concept when it comes to narrative feature projects. They are just too different in terms of ownership rights.

I disagree. I personally see no difference between a still shot of a model/actor and a sequence that includes a model/actor in motion with accompanying sound. The former could very well be a single frame/image extracted from the latter. As soon as someone shows up with the intent to stand in front of a camera and/or mic, they are doing it professionally (paid or not) and they have interest in what is captured and rights to it. If someone is captured on camera or microphone and that media is used in a commercial or professional manner, then that person has a vested interest and rights to it. Hence why we use model/actor/talent/performer release forms and contracts.

In the USA we also have freedom of the press and reporting media, which throws a wrench into much of this. Legal positioning and vantage points still apply as do permits/press passes. However, they don't require releases to report or publish. So as long as long as the paparazzi have legal permission to set up their large hubble-telescope lens on the balcony of a beach house, they can legally photograph some celebrity's boobies who's 2000 meters away on a nude beach, which doesn't allow cameras...

But then there's privacy laws as well as local laws and other factors that come into play. Not to mention that rights and copyright laws differ from one area or country to the next. It's a ll a muddy mess, so the more legally binding documents you can put into place to control all of what you shoot, the better. A properly executed legal contract serves to protect the project and all parties involved.

Documentaries are often a mix of free press along with creative photojournalism or cinematography. It's a grey area, but specific releases may not be necessary for all people involved. Legal vantage points and location releases and permits still apply. You can't just wander onto private land to shoot some wildlife video and expect ownership to not be contested if the property owner finds out.

As a DP being hired by a production, your contract should specify ownership of what is shot. If it doesn't, then get it spelled out in an addendum to the contract before signing. If you still have signed a contract that doesn't specify, ownership by the DP could still be contested. But if you, as a DP, have received compensation for your services to shoot something, and the production or producer holds all the necessary permits and/or location releases, then you as a DP would have little claim to it, I think. A far better case could be made by actors appearing in what is shot since their image and professional services/skills are in direct view.

[Jeff Kilgroe]

Both the DP and producer have to be comfortable with and understand the arrangement.

Exactly. A legal contract should not be in place to restrict or exclude a certain party. It's a mutual business arrangement that should protect everyone involved while providing the best outcome for the intended business goal (the production). If you don't agree with the document, don't sign it.

[Chris Gearhart]

Good points all. Again, it's academic to some degree, as most all work will have contracts that will specify. Interesting nonetheless.

And I would never use footage for anything without specific agreement with the producers, regardless of who officially owns it. It would only be for use in a reel anyway. Any DP who does that will not last too long with a good reputation.

[Kevin Halverson]

I disagree. I personally see no difference between a still shot of a model/actor and a sequence that includes a model/actor in motion with accompanying sound. The former could very well be a single frame/image extracted from the latter. As soon as someone shows up with the intent to stand in front of a camera and/or mic, they are doing it professionally (paid or not) and they have interest in what is captured and rights to it. If someone is captured on camera or microphone and that media is used in a commercial or professional manner, then that person has a vested interest and rights to it. Hence why we use model/actor/talent/performer release forms and contracts.

This was exactly what I was referencing. When has a DoP gotten releases from talent on a narrative set? The contracts are between the producer and the crew and the producer and the talent. I have never seen documents executed between the crew and the talent. Guild governed contracts are often reviewed (agents, managers, attorneys) and executed long before any talent shows up on set. About all that I have seen guild actors asked to sign on set is a time sheet. I haven't ever seen "releases" getting signed by talent like you would in a print/fashion project.

In the end, I think we all agree that contracts govern how and under what conditions we work. I just see big differences between how things are done in the examples that I am sighting.

[Chris Gearhart]

You make a good point. But here in Chicago, we do things the Patronage way. You gotta problem with that? Huh?

lol

[Kevin Halverson]

Believe me, Chicago can't lay claim to being the only place where things get "fixed" with the exchange of a bit of money. It happens in LA too, but perhaps not as out in the open. I have seen producers walk around and pass out cash to keep the neighbors from running their sprinklers, mowing the lawn or whatever else they can do to disrupt a production.

I spoke with a producer yesterday, she related a story to me about why she always tries to get an EMT that is a working fire fighter. Seems that once the fire marshal notices another fire fighter on set, things seem to go much better from that point on out.

[Chris Gearhart]

We don't have to pass out cash. We just "talk" to them.