Q: I did CGI work for a film and our contract states that they don’t acquire the copyright in my work until they pay me, which they refused to do. They recently had the film screened at a film festival. Do I have any rights for infringement against the festival and the filmmakers?

Getting a contract in writing is maybe the most important thing you can do to protect yourself when dealing with a client. But what happens if you get one and the client doesn’t honor their side of the deal?

The sad reality of life is that sometimes you can do everything right and still end up losing. While most of my law practice is dealing with clients who never got a written contract in the first place, the remainder of it is dealing with clients who DID get one but got screwed anyway. Getting a contract is pretty easy and relatively cost effective. And most of the time, they work! People typically honor their agreements. But enforcing a breached contract is tough because you need a lawyer; suing someone for breach of contract is expensive and time consuming and many people—understandably—don’t want to go through the hassle, even if they ultimately prevail.

So before I answer your question, know that if you end up in this situation, your next step is almost certainly hiring an attorney and pushing for some kind of settlement before ending up in litigation or binding arbitration. The judicial system is the last best guard against bad faith actors and lawyers are the enforcement personnel for that system.

You have two rights in this situation: you have the right to be paid fairly and timely for your work, and you have the right to not have your property (in this case, your copyright) used without your permission.

With regards to your right to be paid, you likely have a case for breach of contract against the filmmakers. That theory is really quite simple: the filmmakers made a deal with you to provide a certain service for the film, and in exchange for your services, they agreed to pay you. Because they haven’t, they’ve broken their side of the deal. This means, at the very least, they owe you your unpaid fees, and depending how long the fees went unpaid, interest on those fees. They may also owe you attorney fees and litigation costs, depending how far down that road you go.

Your right to not have your copyright used without permission rests in part on the breach of contract claim. Because the filmmakers didn’t pay you and, thus, broke the agreement, they never acquired the copyright. This means you still likely own copyright interests in your work on the film and may be entitled to your unpaid fees among other contractual and punitive damages.

The other part of the infringement claim rests on whether your work was a “work made for hire.” Generally speaking, any work you do on a film is considered a work for hire under the Copyright Act, which means your work is automatically owned by the filmmakers and not you. However, if the contract does not expressly state that it’s a work for hire, then you retain ownership of the copyright. And as such, screening the film at a festival or anywhere else without your permission would be considered copyright infringement under federal law. Without knowing the exact terms of the contract, I can’t say whether this is applicable, but it’s worth knowing that even if it is a work for hire, because the contract was breached by the filmmakers, they may not have the right to use your stuff anyway.

As for the festival’s liability, typically, film festivals don’t want to get sued so they require filmmakers to indemnify them in case someone does level copyright infringement charges against them (i.e. if they get sued, the filmmakers have to cover legal defense costs). While there is something called contributory copyright infringement, it only applies when a third party knowingly causes or materially contributes to the copyright infringement by someone else. In other words, the festival would have had to encourage the filmmakers’ use of your copyright without your permission. It’s doubtful they would have done that, given how scared of litigation everyone is these days. So my guess is a claim against the festival would probably fail.

As you can see, there are several avenues to pursue, any of which can succeed or fail depending on the facts of the case and the kinds and amount of evidence at your disposal. Your lawyer’s first job will be to investigate and gather relevant evidence to build a case. Next, he or she will make an assessment of your rights and chances of success, followed by sending a demand and/or cease and desist letter, with the goal of settling the dispute before litigation. Because once that bell is rung and the complaint is served to the defendant, it can take many months and many thousands of dollars before a settlement or verdict is reached.

Answering your question “Do I have rights?” is always the easy part. Enforcing them is another matter entirely. That said, don’t let this experience ward you off getting written agreements. It’s easy to say, “Well, this filmmaker didn’t honor the contract, so others won’t either.” I can tell you from personal experience that most people do honor agreements, and they’re much easier to honor if they’re in writing. Sometimes you just end up dealing with a bad actor. That, unfortunately, is life. MM

Gregory R. Kanaan, Esq. is a New England-based attorney representing artists, filmmakers and designers in Massachusetts and New York. His practice focuses on entertainment and art law, as well as intellectual property issues. He has resolved disputes involving copyrights, publicity rights, trademarks, and contractual disputes for a wide range of independent filmmakers and design professionals. Prior to becoming an attorney, Mr. Kanaan was a television producer, creating documentaries and series for The Discovery Channel, Court TV, TLC, and A&E, among others. When not practicing law, Mr. Kanaan writes for his blog, The [Legal] Artist, which aims to educate creative professionals on the legal issues that affect them most. 

The answers to legal questions provided here are for general education and information purposes only, and are not legal advice or legal opinions. The information provided in this article is not intended to create a lawyer-client relationship between Mr. Kanaan and a reader.