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Who owns the footage?

I've been acting in a collaborative TV Pilot in which everyone gave their time and talent for no pay. Now the writer has had a major falling out with the producers and is telling them thay can't use any of the footage shot. There were no contracts signed between any parties, and the producers made it very clear they are a start-up, so don't have any money. Can the writer derail the whole thing in this way?

  • The footage itself belongs to the producers, the right to the content of the footage will be harder to determine. It's a pilot, won't be exhibited, and if the writer is no longer on board the series can't be commissioned on his work anyway. Can you resolve the dispute with the writer ? If not, learn from it and get agreements in place next time. The legal ins and outs are largely moot if you haven't got money to sue/defend over a pilot, get a new writer, there are many.

    5 years ago
  • The actual tapes belong to who paid for them - which I presume is the production company.

    There is a myth amongst cameramen that they by default they hold the copyright to the footage they shoot, which is mostly untrue. By default, copyright is vested in the director and producer and they need to assign or licence that copyright for the footage to be useable.

    If the the footage is based on a piece of writing then there is an underlying copyright in the screenplay. Without a release, I'm afraid what's been shot is not useable in a commercial way (and probably in non-commercial ways too) without the writer signing a contract

    5 years ago
    • No - it's not a myth. Unless employed under a "work for hire" contract (in writing) the copyright to the footage (or stills) belongs to the photographer / cameraman.

      The phrase "in writing" is key.

      The Copyright, Designs and Patents Act 1988 does indeed attribute default copyright for the finished film (as a single entity) but that does not confer Copryright ownership of the component parts.

      5 years ago
    • @Rob Talbot

      When we want your opinion, we'll write you some lines.

      5 years ago
    • @Daniel Cormack

      Thanks Daniel - "we"? Didn't know you spoke on behalf of everybody.

      5 years ago
    • @Rob Talbot

      Your name seems to keep cropping up, but most of the lines are you own, not ones you're performing.

      5 years ago
  • What a terrible, and terribly familiar, problem.

    The producers do not hold the copyright by default, they only hold it if it was been assigned to them by the creator, in this case the writer. The director is irrelevant to this problem. And, for example, if there was no contract between the camera operator and producer assigning ownership to the latter, then the image copyright remains with the creator, the DP. All the producers would hold is physical ownership of the footage which has no value unless they can prove copyright has been assigned to them.

    It all depends upon who signed what.

    5 years ago
  • I think we're basically saying the same thing here on the writing side, Martin.

    If there is an *underlying* copyright, ie. what is shot is based on a piece of writing - a screenplay, a novel etc etc - then it is unuseable unless the writer assigns or licenses that copyright.

    In terms of UK law, you are quite wrong about the camera department. The copyright of a moving image lies jointly with the producer and director, according to the Copyright, Designs and Patents Act 1988. The only way the camera dept might have an interest in copyright is if they are effectively producing / directing the footage themselves.

    Of course, legal departments normally get all HoDs to sign copyright waivers as a kind of boilerplate protection, but this does not necessarily mean they have any copyright to assign/licence.

    5 years ago
  • Hi Colin,

    I had to read your post a couple of times to make sure I had my head around what had happened.
    Firstly, with regards to who owns what - the writer owns the script. However, the production company do have some rights over what has been filmed because they have changed the written word into an audio visual medium. The camera owner, by default, owns the rights to any visual image that has been recorded as does the owner of the sound recording equipment owning the rights to any audio recorded for the production. The argument is "without my camera or audio equipment there would be no production". These equipment owners then pass their rights to the
    production company, Producer or Director if they wish to do so. This should have been all agreed and written down and signed in a contract when all parties got together to produce the piece of work, just as Daniel pointed out in his second response.

    From what you have written, it seems to me that you have not been involved in a TV Pilot. It appears that you have been involved in a recording of footage from a script that, in the future, maybe pitched to a TV commissioning body for consideration for a TV series (there is a difference). There are a number of stages with regards to TV commissioning. To get to the pilot stage, the commissioning body would be involved already, in some form or other - after all they are testing whether the show can be successful. There is no way that they would let a pilot be filmed without all the legal documentation being in place, such as actors agreements, location agreements etc. and you would more than likely have some form of interim budget from the commissioning body for the production. You do not film a pilot for a TV commission with no budget and no contracts.

    A start-up company would not be able to pitch to the major TV commissioning bodies anyway because they have no proven track record. The likes of the BBC, Channel 4 and Sky all have strict criteria that has to be met before any production company is allowed to pitch to them. My production company are part of the BBC e-commissioning and 4 Producers. We had to prove that we were capable of producing broadcast standard programmes. Some of our footage had been shown on prime-time television on BBC and ITV and because of this we are a recognised production company. It took us 7 years of hard work to get accepted by these companies.

    I find it very hard to believe that no contracts have been signed by anyone involved. Surely at production meetings somebody must have mentioned something about contracts, even if it was just Image Release contracts. Regardless of whether the production company in question was a start-up with no money, they should still follow the correct procedures to stop this kind of thing happening.

    In a nutshell, both parties have some rights, the writer has rights to the script and the production company has some rights to the footage. The writer could pull out if they thought that the production company was not capable of taking their idea in the direction they wanted to, and likewise the production company could walk away from the writer if they thought that the rest of the series was not up to the standard of the pilot.

    It seems to me, what has happened is that they have started production too early. The whole point of pre-production is to get everything ready for the first day of filming and that includes paying attention to the small details.

    My advice is, learn from this experience and next time you are a part of any production, whether it be cast or crew, paid or unpaid, get something down in writing as to your role etc. As an actor or crew member do not be afraid to ask the production company to give you contracts and ask for proof of insurance. Do not be put off getting involved in other projects by this experience.

    Best wishes

    Lloyd

    5 years ago
  • Oh dear, I'm afraid we're going to have to disagree over this, Daniel. And this is how lawyers make money. I'm going to quote chapter and verse here, but it's important because of the potentially disastrous (and expensive) consequences.

    The copyright for the producer and director are only relevant to the film as an entity. Here's what the UK Intellectual Property Office says:

    >In the case of written (including software and
    >databases) theatrical, musical or artistic
    >(including photographic) works, the author or
    >creator of the work is also the first owner of any
    >copyright in it.
    (www.ipo.gov.uk/types/copy/c-ownership/c-...)

    That deals with Colin’s point, and that same page backs up Daniel:

    >In the case of a film, the principal director and
    >the film producer are joint authors and first owners
    >of the copyright (and the economic rights).

    But here’s the rub. The film as an entity possesses copyright, but there is also copyright attached to any creative or artistic element that went into making that film. For example, the Shooting People website has copyright protection, just the same as a film. But that does not mean SP can use an image on the site without the permission of the person (or image library) who created it. Complex creations like a website, illustrated book, or film come with many internal layers of copyright, not just to the overall authorship. The test is: was creativity involved in making something tangible? It’s obvious when you stop and think about Colin’s and Daniel’s posts. The producer and director might be authors of the moving image, but they need to secure an agreement from the author of the script. And, as you’ll see, they need to secure a lot more than that as well.

    A production company only gets complete copyright over the individual elements of a film if they have employees doing that creating. And employees need contracts. Here’s what the IPO says about that:

    >Where a written, theatrical, musical or artistic
    >work or a film, is made by an employee in the course >of his employment, his employer is the first owner
    >of any copyright in the work (subject to any >agreement to the contrary). In the course of
    >employment is not defined by the Act but in settling >disputes the courts have typically had to decide
    >whether the employee was working under 'contract of
    >service'.
    (www.ipo.gov.uk/types/copy/c-ownership/c-...)

    Sounds good for the producer, but most of us work as freelancers and that’s where ‘contract of service’ comes in. If you work for the BBC in a staff post, yes, you’re an employee (in the States its called ‘work-for-hire’). But on an indy film? No, we’re providing a service. We’re not employees. If there is no contract assigning copyright, you retain it.

    Don’t believe me? Here’s chapter and verse from that same UKIPO page:

    >Where a person works under a 'contract for services'
    >he may be considered by the courts to be an
    >independent contractor and his works may then be
    >considered to be commissioned works.

    What are commissioned works?

    >When you ask or commission another person or
    >organisation to create a copyright work for you, the
    >first legal owner of copyright is the person or
    >organisation that created the work and not you the >commissioner, unless you otherwise agree it in
    >writing.
    (www.ipo.gov.uk/types/copy/c-ownership/c-...)

    And that’s the whole point, Daniel says:

    >>Of course, legal departments normally get all HoDs
    >>to sign copyright waivers as a kind of boilerplate
    >>protection, but this does not necessarily mean they
    >>have any copyright to assign/licence.

    I think it might be a mistake to dismiss this as “boilerplate protection”. These waivers exist because the production needs clarity over all the layers of copyright that exist in something as complex as a film. Your cinematographers, DoPs, art directors, costume designers etc., all have creative input. Why else would you employ them? And, because they are ‘under contract of service’, copyright remains attached that creativity unless they are employees or have assigned it to you in their contract. They are not specifically excluded in the UK, I’ve checked the 1988 Act. You can too:

    www.ipo.gov.uk/cdpact1988.pdf

    Can anyone spot where it says film producers and directors have sole control over all the copyright elements of a film? Maybe I missed it, but I can’t find it. The Act says they, as authors of a film, control the overall copyright, but makes no mention of the creative elements that built it.

    You can also check the US Copyright Office’s position:

    www.copyright.gov/circs/circ01.pdf...

    And maybe you think I’m being too pernickety. But you won’t if you’re ever sued for copyright breach.

    This confusion over film copyright might all come down to the informal way the industry works. But good luck persuading a court that someone who lit the shot, chose lenses and agreed framing, positioned the camera, or did anything other than press the ‘Run’ button on the camera, did not have artistic input into the creation of that image. The director has sole control over the copyright of those elements only if he/she shoots, lights, designs it all. How often does that ever happen? If you go down that route, you’ll only make some lawyers rich(er). And you’ll have to go to court to prove your case.

    By the way, US law is extremely punitive on this matter. So, the very best luck distributing any film in the States (or on a VOD portal based there) without the right paperwork. You can take the risk, of course, but you might also bankrupt yourself in the process.

    Finally, to pre-empt the obvious question, why haven’t we heard of cases where productions are sued over this? Talk to media lawyers in this field and they’ll tell you two things. First, sizable film and TV productions aren’t stupid. They clear their copyright (hence those ‘boilerplate’ agreements). Second, on the rare occasion they don’t do so, the case never makes it to court because it’s cheaper for the producer to settle than fight a slam-dunk losing case.

    And you can't dodge this by being too small to sue. The way has recently been opened for copyright breaches to be pursued using an inexpensive fast-track small claims system in the County Courts. It means minimal expense and no threat of paying crippling lawyers’ fees if you lose, so expect to hear of more cases there. Maximum damages are £5000, but the Ministry of Justice is proposing to raise this to £10,000 this year.

    Phew, that’s the longest post I’ve ever done. Apologies for the length of it, but so many people charge into productions without considering copyright and end up paying for that mistake that I thought it worth continuing the debate in detail.

    5 years ago
    • You've adduced a seemingly impressive array of links andd quotes which when looked at carefully only confirm what I've said.

      Yes, there are underlying rights (the screenplay and any source material it's based on) and yes some other constituent parts have copyright (music, props in some circumtances et al).

      However - anomalous as it may seem - the Director of Photography / cameraman does not have copyright in the footage they shoot, the reason being that they seen to be under the creative control of the director and producer.

      Neither do editors. But stills photographers have copyright in their photographs - seems odd doesn't it? That said, the photographer's assistant does not have any kind of copyright in the photos, even though they may have had a very real creative input.

      Anyway, before this turns into a "yes, it is", "no it isn't" back and forth, I would suggest anyone in any confusion contact their relevant body eg. BECTU, PACT or Directors UK who will be able to give them an authoritative answer. I actually have a scan from the BECTU journal which confirms who does and who does not have copyright in a film on which I base my responses here.

      5 years ago
  • There are a lot of legalities here - obviously - however from Colin's point of view I'm sure he's only interested in using some of the footage in a Showreel. Colin has some rights over this as he has interpreted the character etc - However lets not get bogged down in legalities for Colin's sake. He has the right to show other people (selected and not a general viewing) his performance in order to get more work. He will have to assure all parties that this is his only intended use of 'his' footage, he will also state that it will not be available to general viewing on YouTube (he can put it up as limited viewing to only those who are given the link). I hope that the parties involved could agree to this - otherwise it could be considered 'Restraint of trade' against Colin.

    5 years ago
  • Thanks paul for a calming voice. And now for a not so calming voice: this is not a fucking copyright issue! If the writer, say, wasn't paid, then it's a labor issue. If he doesn't like the end result, then it's an ego issue. The rub is, we don't know what the falling out was about. And that's everything. Since the writer allowed this pilot to be made on his script, that's it. He can try and sue, but not on copyright infringement. And if it were in the U.S., the writer would not have a leg to stand on. The writer can't claim ownership of a finished film. The best the writer could do from what you've told us, is to enjoin the film. But that means getting courts involved, lawyers and money. All for a pilot? I don't think so.

    5 years ago
  • Ugh! Please don't work on a project without a contract. I have one even with my best of friends. This won't help for this case, but for talent reading this, check out www.CopyProvided.com. It's free and if you performed and had this contract signed, you could get your promised copy.

    5 years ago
  • I wish Dan was right!!!!

    I am a big fan of Neil Gaiman! I would love to start making all his stories into films. I would be the producer and director and so there should be no problem with me needing him to sign a contract right???

    I was really lucky to meet my favourite author recently. Who is to say that he didn't (verbally) allow me to start using his material???

    I don't expect that claiming that without a contract would get me out of trouble though.

    5 years ago
  • Well, Holly, I think you're smart enough to have a contract. The difference, I'm assuming from the way the question was worded, was that the writer and producer talked about filming the script. The writer was there during the filming, or was at least aware of the shoot days, and probably viewed the final cut. And given there was a "falling out" some kind of permission was given since they were "in" at some point. All of this points toward some sort of collaboration. If that's the case, the writer can not simply decide that the work of the producer, director, DoP, editor, et al is now his to do with what he pleases. Now if the producers simply met with the writer, then the producer stole the script and filmed it, your scenario would fit. That doesn't seem like the case here, but without any more detail, we don't know.

    5 years ago
  • The moral to this whole debate is simple.
    No matter how small and impecunious your project,
    for everyone's protection,
    AGREE WHAT YOU ARE DOING AND SIGN THE CONTRACTS FIRST.
    Basic contracts can be found on SP under resources. You can personalise them, but be careful if you do.
    Good luck with it all
    Yen Rickeard

    5 years ago