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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. MM

Featured image: Brian DePalma and Tom Cruise on the set of Mission Impossible, from the documentary DePalma, courtesy of A24.

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 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).