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Q: In shooting promotional/marketing or educational/instructional videos, my clients often seem confused about who owns the raw footage and who owns the finished piece when the project is complete. My understanding is that the clients own the finished piece that I was contracted to produce, but I reserve the rights to the master, raw footage I shot to be able to make that video. I’ve since written into my contracts that I own the raw footage and can use it for non-competing marketing materials as well as my own company’s marketing materials. But I also say that they can have access to a copy (the non-master files) of that footage if they request it and can use it however they best see fit. I added the last part when clients became unhappy with not owning all the raw takes/shots. Is there a right or wrong way to approach this issue and is there an appropriate way to phrase it in a contract?
A: While I am unable to offer specific advice about how to structure your contracts, as that would improperly cross the line between blog response and the provision of legal services, I can explain to you the fundamentals underlying this situation—i.e. who owns what and why.
To use a simple hypothetical, let’s assume that a moviemaker is hired by a third-party client to film and edit a promotional video, and the moviemaker does so without outside assistance. The default rule under the Copyright Act is that the moviemaker owns all copyrights in the video. This would include both the raw footage and the final, edited version of the video. This is so because under the Copyright Act, the artist who fixes the work in a tangible medium owns the copyright, not the third party for whose benefit the work was created. (Note that, although the client does not own the copyrights to this hypothetical video, it could generally argue that it enjoys an implied license to use the video for which it paid.)
In practice, of course, the moviemaker in the above example often ends up not owning the copyrights to his or her work. That occurs because the parties contract around the default rule of the Copyright Act. There are two typical ways in which an artist is divested of its copyright in a work that it creates: (1) Through an assignment; or (2) through a work for hire agreement (or arrangement).
An assignment agreement is the most common way for the client in the example above to obtain the copyrights to the video it commissioned. An assignment can operate to assign rights prospectively. Thus, production agreements of all types commonly contain clauses by which the artist assigns all rights of any kind to the “producer” of the work. The result is that from the inception of the work, the copyright is owned by the financier. Assignment agreements of this type often contain provisions requiring the artists to execute all documents necessary to effectuate the assignment, should further documentation be required.
This can also be accomplished through a work for hire arrangement or agreement. Under the Copyright Act, a work created by an employee acting within the scope of his or her employment is automatically deemed a work for hire, the copyright to which is owned by the employer. Thus, if the moviemaker in my example was not an independent entity, but was instead an employee of the company that commissioned the work, all copyrights in the video would be owned by the employer as a matter of course.
A work for hire arrangement can also be established by contract. Where a work has been specifically commissioned, the parties can provide in a written agreement that the work will be a “work for hire” or “work made for hire.” The Copyright Act limits such work for hire agreements to eight categories of works, one of which is “a part of a motion picture or other audiovisual work.” Accordingly, in the hypothetical, the client could contract to have its video produced as a work for hire, and all copyrights in the raw footage and final video would be owned by the client.
There are numerous ways in which these rights can be restructured. By agreement, the copyrights to the video could be jointly owned. Further, the parties could exchange licenses under which a non-owner would have certain limited rights to use the video or materials. Through these and other devices, a contract between the client and moviemaker can dictate a vast range of options in which the parties have varying rights to own and/or use the video. How the moviemaker chooses to structure its particular contracts will, of course, be the subject of negotiations with the client.
For a moviemaker seeking advice on how to structure and draft its contracts, I strongly suggest the retention of an attorney who is not only experienced in film production, but who also has a solid understanding of copyright law. Beware: They do not always go hand-in-hand! MM
Gregory Korn is a Partner at Kinsella Weitzman Iser Kump & Aldisert, a high-profile, L.A.-based entertainment litigation firm, and specializes in the areas of entertainment and intellectual property litigation. He has represented actors, musicians and production companies in a variety of contract, trademark and copyright matters. Korn has also litigated numerous real estate and trust matters, including the successful representation of a trustor in a series of appeals before the Ninth Circuit Court of Appeals and California Court of Appeal. In 2007, Korn was named a “2007 Southern California Rising Star” by the publishers of Los Angeles Magazine. Korn is a graduate of the University of California, San Diego (B.A. 1996) and the UCLA School of Law, Order of the Coif, (J.D. 1999). Prior to practicing, Korn clerked for the Honorable Stephen V. Wilson, United States District Judge for the Central District of California.
The answers to legal questions provided by the lawyers of Kinsella Weitzman Iser Kump & Aldisert, LLP (“KWIKA”) are for general education and information purposes only, and are not legal advice or legal opinions. The information provided in the articles is not intended to create a lawyer-client relationship between KWIKA and you. The opinions expressed in the postings are the opinions of the authors and do not reflect the opinions of KWIKA, its employees or agents.
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