What’s the difference between raw footage and the final product when it comes to copyright? In this third part of a five part series, we look further into copyright law and some things to consider when you create content, outsource content, and/or sub-contract anyone to perform work for your business. Take a look at the video below and the transcript of the video is below.

Christi: There is a lot of folks that do what we do that maintain a pretty expansive video library, you know for stock footage. And so they’re selling their stock footage and I’m sure as you know it can get quite pricey if you’re making legitimately good money from works that you’ve shot that are for sale online. I could understand why you wouldn’t want someone cherry picking that or using that footage without paying for it. But then there’s a lot of smaller lower end productions that you know I could go out and reshoot the cityscape of Raleigh myself. Easy enough, I just chose not to. I want to use the video I’ve already paid you for, for that cityscape of Raleigh.

Tony: The real important thing I think for professionals is when you’re dealing with clients is to let them know in writing what their rights are and that’ll serve you very well. And the same thing when you’re on the receiving side, make sure you get in writing what your rights are. And if you want ownership you really need to get that in writing, unless the author is a W2 employee and not just in writing but a signed rating. The tricky part for a lot of works is that signed writing won’t convey ownership until the work is done unless it falls within the work for hire category found within the Copyright Act. Very technically I can’t sell you something that doesn’t yet exist.

Tony: So I give you a signed writing and say I will give you the copyright in this book that I’m writing. It will be a work for hire for you. Well federal law doesn’t recognize a work for hire agreement for literary work and so I write it. Technically that copyright has not transferred to you as opposed to if this was an audio visual work right. It’s the Copyright law recognize it so it’s it can be very frustrating. So at the end of the day if I’m doing a literary work work for hire at the end of that day I need to do a literal copyright assignment formally conveying the title to you.

Christi: Is there a difference legally in terms of who owns the copyright to raw footage versus finished work?

Tony: Yes. And copyright issues can be very layered. So right now, we have presently sitting here at least two or three different forms of expression occurring. There is what I’m saying, what you’re saying, and then the recording of this copyright law that could recognize three different acts of authorship occurring right now with three different owners. Where copyrighted work has copyright ability kicks in is sometimes debatable, but certainly if I’m giving a very eloquent speech right and it’s being recorded, my speech is copyrightable. It’s copyrightable subject matter. At least once it’s recorded, his recording of that is a copyrightable event so you can overlapping ownership that can be joint ownership depending on the circumstances. So in the case of video production raw footage versus final production, if the final production required skill and artistic interpretation which it typically does in the editing process, well then there is additional copyrightable work that has been done. So if I shoot the raw footage and say shoot 100 hours of raw footage and I own unquestionably only copyright and I give it to you and you distill it down to a really good five minute video. Wow. I do not have the right to use that five minute video and without my permission you didn’t have the right to make that derivative work. And if there was nothing in writing then you have maybe some form of an implied license for that for that video.

Christi: So there would be two different copyright interests at play between the raw footage and the final production?

Tony: Right now you can’t use my final production and I own the rights too. You can’t sell it, but can you use it as a sample and work because you did contribute to that final production. This is where you want working relationships that are purely and the Ethar and copyrightable content to be in writing. What was the agreement? Why did I let you use it? Now I might say I’m you know people generally have very broad and self-serving memories. Well I let her use it to make his final production, I can use it however I want it. No, no, no, this is going to be a joint venture and we can only use it together to pitch it to this film festival that we’re going to share the proceeds on. So memories often differ and they usually differ because people have different expectations and they don’t take the time to articulate it and that is another benefit of going through the hassle of getting an attorney or at least trying to put things in writing because you’d be surprised. If lawyers see this all the time that when people try to reduce their agreements to writing they realize that the agreement wasn’t exactly what they thought it was and it forces them to have those conversations at the front end which is much easier to reach an agreement than on the back end. You know once and nothing makes an agreement more difficult on the back end than a lot of success because once you realize how much money is involved people sometimes are a little bit more difficult to negotiate with. So again putting it in writing at the front and resolves the ambiguities that might otherwise arise.

Christi: And you said it’s not common for to see these kind of issues come up at least in a legal standpoint. Are you seeing a difference between still photographers and issues coming up with like you say folks cherry picking their photos off the Internet versus video folks having issues with somebody cherry picking their footage off the Internet or you know?

Tony: Yeah so that’s what I meant very strictly as I don’t see these issues I don’t see these issues come up a lot for exceeding the implied license this does happen.
Tony: We just finished the lawsuits involving the advertising agency and a prominent eastern North Carolina business. They parted ways after several years new agency came in and started repurposing the content ended up in a federal lawsuit where the rights holder sold the better part of it. Does doesn’t suit the better part of a dozen parties that were repurposing this content in merchandising advertising Web productions that they had originally conveyed to their clients.

Tony: It might have been a written license but there is no ownership conveyed. So it does happen, but now you know I was paid for this work but now you’re using it beyond the scope that doesn’t come up that often. The works made for hire and who owns it does come up quite a bit. Another thing that comes up is I hire an artist to do something and I tell them what to do. And they do it. It was all my idea. So I own it that comes up fairly frequently. We see that a lot. And like home designs it told me exactly the kind of home I want to dress and draw it. And now I take this to do whatever I want with the design. Well the copyright does not protect ideas. It protects the expression of those ideas. So in that case the draughtsmen is 100 percent the owner of the copyright. So we see issues like this come up fairly often. People coming in that hired software professionals as 10 99’s and they can’t get the source code and their business is kind of getting locked down because they can’t modify and update their software and the software programmer won’t give them the source code. That does come up.