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Q: I have an issue with a large client that has never asked me to sign any agreement or contract. A little while back, they asked me for a year’s worth of B roll footage I shot for them. I eventually gave it to the client because I thought it was covered under the “work for hire” doctrine. Now I don’t think that is true. Can I deny them if they request footage in the future?
A: Let me first provide some background on the “work for hire” doctrine for readers who may be unfamiliar with the concept. The general rule in the United States is that the author or creator of an artistic work is the initial owner of the copyright. In other words, the default rule is that you own the copyright for any footage you shoot. The “work for hire” doctrine is an exception to this rule, which holds that where an individual is hired to create a work the hiring party is considered the author of the work—and therefore given the initial copyright. However, the “work for hire” doctrine only applies if certain additional requirements are met.
What are those requirements? Under the United States Copyright Act, a “work made for hire” is (1) one that is “prepared by an employee within the scope of his or her employment;” or (2) one that is subject to an express written agreement “that the work shall be considered a work made for hire.” You clearly do not satisfy the second prong of this definition because there is no written agreement between you and your client, so the question boils down to whether the footage you shot was “prepared by an employee within the scope of his or her employment.”
In fact, this is actually two separate questions: First, do you qualify as an “employee”? And second, if you do qualify as an employee, was the footage shot “within the scope of your employment”? In this instance, it sounds like the answer to the second question is almost certainly “yes,” because shooting this footage is exactly what you were hired to do. So the issue comes down to whether you satisfy the definition of an “employee.” In the context of the “work for hire” doctrine, the United States Supreme Court has stated that this determination hinges upon “the hiring party’s right to control the manner and means by which the product is accomplished.”
This is a notoriously broad test that can be very difficult to apply in practice. Indeed, it is altogether possible that one court could look at one set of facts and determine that the individual qualifies as an employee, and another court could look at the exact same facts and reach the opposite conclusion. In order to assist courts in making the “employee” determination, the Supreme Court has identified a number of factors that courts are required to consider, with no one factor being determinative by itself. The factors include:
1. The skill required to perform the work. The more skilled required to do the work, the less likely it is you will be considered an employee.
2. The source of the instrumentalities and tools. If you use your own camera and provide your own supplies, it is less likely you will be considered an employee.
3. The location of the work. If the work is performed on the hiring party’s premises, you are more likely to be considered an employee.
4. The duration of the relationship between the parties. A longer relationship looks more like an employment relationship.
5. Whether the hiring party has the right to assign additional projects to the hired party. If the hiring party has this right, it suggests the hiring party has more control over the hired party, and thus makes it more likely the hired party will qualify as an employee.
6. The extent of the hired party’s discretion over when and how long to work. More discretion obviously makes it less likely you will be considered an employee.
7. The method of payment. If you’re collecting a regular paycheck, it’s more likely you will be considered an employee.
8. The hired party’s role in hiring and paying assistants. Again, more discretion makes it less likely you will be considered an employee.
9. The provision of employee benefits. If you receive benefits from the hiring party, it’s more likely you will be considered an employee.
10. The tax treatment of the hired party. Finally, if the hiring party treats you as an employee for tax purposes, it’s more likely you will be considered an employee.
Without knowing the specifics of your relationship with your client, it’s hard to say whether you would be considered an employee under the above factors. You’ll need to consider these factors and apply them to your relationship.
With that said, it certainly seems like you have a good argument that your footage is not covered by the “work for hire” doctrine, and that you are therefore the copyright holder. If that is the case, then the issue of whether you have to turn over the B roll footage just comes down to the terms of your oral agreement with your client. Did you orally agree to turn over such footage to the client? Is there any argument you implied that you would? If not, you are the copyright owner and can do with it as you please.
Randy Whattoff is an Associate at Kinsella Weitzman Iser Kump & Aldisert, a high-profile, L.A.-based entertainment litigation firm, and has experience litigating a broad range of complex business matters. He has recently handled cases involving professional athletes, complex real estate transactions, business fraud and other commercial disputes. Mr. Whattoff graduated cum laude from Cornell Law School in 2006. At Cornell he was an editor of the Cornell Law Review, the managing editor of Cornell Legal Information Institute and a teaching assistant. During law school Mr. Whattoff also externed with the Honorable Joel E. August in the Second Circuit Court of Hawaii. Mr. Whattoff received his undergraduate degree in Sociology from UC Berkeley in 2002. He minored in Computer Science.
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