Q: Our short film is now in post and we plan to submit it to festivals. I wrote the script (which is registered at the U.S. Copyright Office and the WGA) and the producer put up the money for the crew, editing and craft services, among others. Because she paid the crew, she says she owns the footage. Is that true? We have no contract at the moment.
This is a classic example of why you need written contracts on every project you work on. Contracts provide clarity of purpose and action for all parties involved and prevent issues like these from ever arising. Without one, you’re more likely to wind up in a situation where ambiguity and confusion create conflict. Instead of moving forward with the film, you spend your time arguing over ownership and the film never goes anywhere.
You both own the film. And more than that, all your crew and cast probably do, too. While your ownership share resides in the screenplay and whatever creative decisions you authored on set and in post, the producer’s ownership resides across the entire film, overlapping with the shares owned by the editors, actors and camera operators, which confuses the whole issue and makes it difficult to determine who actually owns what.
Under U.S. Copyright Law, each artist who works on a collective project like a film maintains ownership over their specific contribution to the project. As a result, each artist becomes a joint owner of the work, with the same rights as everyone else who contributes. This can be difficult to manage when you’re dealing with just two owners. But on a film—even a short indie film like yours—that could conceivably be dozens of people, creating an untenable situation.
This is further supported by the Work-For-Hire doctrine, which states that in certain situations, independent contractors who are not full-time employees will automatically retain ownership rights over their work unless all three of these requirements are met:
- The work is custom-ordered or commissioned;
- The parties agree in writing that it’s a Work-For-Hire;
- The work falls into one of these nine categories: a contribution to a collective work, a part of a motion picture or other audiovisual work, a translation, a supplementary work, a compilation, an instructional text, a test, answer material for a test, or an atlas.
Since most crew and cast members are independent contractors and not employees of the production company financing the film, they will all retain their copyright interest unless it’s transferred or assigned in writing. Most production companies or studios prevent this by acquiring all copyrights from the crew and cast. In exchange for their ownership stake, those workers often get financial compensation, exposure and, if they’re really famous, back-end deals that include profit sharing and merchandising. This makes sense, after all. You can’t distribute a film when a hundred people who each have an ownership stake are arguing over where, when and how to get the movie out there. Inevitably, everyone—including you—will have to give up ownership shares if the film stands a chance of being distributed.
Now most of the time, these deals are hammered out before cameras roll, but that doesn’t mean you can’t do it now. My advice here is to hire an attorney to draft up copyright conveyance papers where you and everyone who worked on the film assigns their ownership interest to the production company. You may not like it, but if you want your film to be seen, it’s the only way forward. MM
Gregory R. Kanaan, Esq. is a Boston-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.
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