May 25, 2012

Cinema Law: Who Owns the Copyright to Behind the Scenes Footage?

by David Albert Pierce, Esq. | Published April 8, 2011

Welcome to Cinema Law, where you ask the questions of our resident team of legal experts and, each week, they’ll provide the answers to your production queries. Have a burning question yourself? E-mail it to and your question may just be on next week’s blog! Cinema Law is presented as general information only and is not meant to take the place of professional legal advice.

Q: I hired a cameraman to shoot behind the scenes footage for a short film I did last year. That was his only job on the production for the two days we were filming. I am the writer, director and producer of the film in question. Who owns the copyright to the behind the scenes footage? Can he use it without my consent?

David Albert Pierce, Esq.: The behind the scenes footage is an entirely separate work from the film you wrote and directed, so there may be a good argument that the cameraman owns the copyright. Of course, as producer there are two different ways that you may have obtained the copyright to this footage. A copyright can be obtained either through an assignment from a copyright owner (an example is when a screenwriter sells his screenplay, together with the copyright, to a producer) or via a “work for hire” agreement (as when a producer specifically employs someone to write a screenplay in accordance with their instructions). The statutory definition of “work for hire” under 17 U.S.C. Section 101 of the Copyright Act requires that either (1) the work is prepared by an employee within the scope of the employee’s employment or (2) the work is specially ordered or commissioned for use as a part of a motion picture and the parties expressly agree in a signed writing that the work will be considered a work made for hire.

Therefore, if you properly employed the cameraman as your employee, section 101(1) may apply whether a written document exists or not. In order to determine that the individual was a bona fide employee, factors that comprise the “employer-employee” relationship must be satisfied. Some of the relevant factors are control by the employer over the work, as well as over the employee’s status and conduct. However, if the cameraman was an independent contractor or volunteer, section 101(2) requires the commissioned work for hire be identified in a written document that is executed prior to the commencement of work. If this didn’t occur then the cameraman needs to assign the copyright to you (this assignment may only occur via a written document).

A few years ago, this very issue arose when I represented a client who sold a screenplay to an independent producer who separately had the writer work as a cameraman for behind the scenes footage, for which the writer was promised payment. Since the screenplay purchase agreement only addressed the sale of the script, no contract existed regarding the behind the scenes footage. When the producer refused to pay, the writer sent a letter to the distributor demanding proper compensation at a higher rate than what had initially been promised by the reneging producer. The writer’s demand was accompanied by a warning that use of the behind the scenes footage without a written assignment of copyright would subject the distributor to copyright infringement. Karma’s a bitch.

Remember, each situation has many specific factors which must be considered in rendering copyright determinations. Most distributors prefer certainty and require written releases from everyone in the cast and crew as part of the “legal deliverables” which the producers must provide. Those releases should extend to not only the finished film but also to all behind the scenes footage captured on the set. The distributors have the right to declare a producer in breach of the distribution contract if all such releases are not provided to the distributor. Therefore, a short one page assignment of copyright from the cameraman to the production company would be prudent if you desire to commercially exploit the footage he shot.

David Albert Pierce is managing member of Pierce Law Group LLP, a boutique entertainment law firm with an emphasis on providing employment law counseling for independent film and television production companies. Pierce has served as counsel for “Amazing Race,” “Oprah’s Big Give” and numerous projects for View Films (producers of the long-running “Taxicab Confessions” and the new CBS drama “The Defenders”). Pierce has also provided entertainment related employment law advice to Morgan Creek Productions, Starz!/Encore, Cartoon Network, Film Roman, Lions Gate Films and Lions Gate Televisions (including such critically acclaimed shows as “Weeds” “Mad Men” and “Nurse Jackie”).

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COMMENTS | POST A COMMENT

Comment by guest on 7/05/11 at 6:06 am: I guess it all goes down to paperwork and contract which states everything clearly- from payment to copyright. - Tony Robbin
Comment by Bankruptcy Attorney Columbus Ohio on 7/18/11 at 12:40 pm: Didn’t you sign an agreement with the cameraman when you hired him? I can’t believe that you just took him of the streets and asked him to film without making him sign anything! If you just took him like that there not much that you can do. Next time you do that you should think twice before hiring a guy without a contract.
Comment by Allie P on 7/27/11 at 9:05 am: If the cameraman owns the rights to the behind the scene footage can he use it to defame the entire movie? Does such an action create a solid case for the movie’s director? I’ve tried searching for famous cases trialed by personal injury attorneys Louisiana offices but couldn’t find a lawyer from these offices that had trialed a movie related case. Perhaps not all of these are made public. Still, does the movie owner have a change to winning the rights to the behind the scene footage?
Comment by Johanna Bartley on 8/11/11 at 2:14 am: I don’t know much about the law, my only contact with this world is a friend I have that’s a New York traffic attorney. Still, since the behind the scenes footage wouldn’t exist without an initial film, I think the film director should own that footage as well as the film. Otherwise just imagine how many scandals would appear after every blockbuster movie there is.