Film stills and "work for hire"

[LKaven]

I recently spent a day shooting stills on location(s) for a documentary.  I was willing to do this on a very friendly basis ($200 / day, since they were in a development budget), but was surprised when the producer said that everything that I did would have to be treated as a "work for hire" because, as she explained in email:

"I will be required by all possible financiers and sales agents / distributors to have fully acquired rights in all materials used to produce and promote the film."

Well, I would give her a perpetual usage right, and even a limited term exclusivity on the poster image, and perhaps even a perpetual exclusive on the poster image, and I'd hold all the implied rights the laws affords me.  That was pretty generous I thought.  But I don't see where asking me to sign over all rights to them has any basis in custom, and I don't see it as implied by their financiers in what she wrote.

In her view, I am just naive for not knowing that this means assigning all rights to them as a work for hire, and that this is just the way things are always done in small art film projects.  Oddly enough, I'm much more experienced as a producer than she is.  I don't think she's right.  But then I'm less experienced as a photographer than as a producer.  I want to ask the professionals here what their experience tells them on this.

Luke

[LKaven]

A signed contract determines the fine details. Paperwork is king. Verbal agreement is too much up for interpretation.

Did you sign a work for hire or another form of agreement prior to the shoot? Did it stipulate the usage, ownership/copyright, length of term?

No contract was signed, none presented in advance.  No actual verbal discussion of rights until the end of the day.

I got called up the night before for this one.  I knew I was risking a day, but I also knew I'd have uses for these photographs independently, so I was willing to do it.  [I can get the necessary subject/location releases on my own if necessary.]  Nevertheless, I'd rather refute the very idea that doing these things as a "work for hire" is an assumed thing in these circumstances, using testimony from people who have experience in these things.

[elliot_n]

Nevertheless, I'd rather refute the very idea that doing these things as a "work for hire" is an assumed thing in these circumstances

It's not my field, but isn't it standard in the film business for the stills photographer on a production to surrender all their rights? (Likewise the cinematographer, sound recordist etc)

[LKaven]

The girl is right, that's the way things are always done for this kind of proj. John's also right, the word PRIOR is as important as the word PAPER.  It's normal that the girl ask for that and it's also normal that you negociate. It's a game and normaly the girl should reconsider some points, but remember, she has to do it, she has to try and she will try verysingle time even if you had agree previously on another assignment.

Fred, could you elaborate a bit on how you know such projects are normally done this way?

[TMARK]

Hey there LKaven,

I work in the film biz and can confirm that production stills are always on a work for hire basis.  If the producers don't have all rights there are problems getting completion bonds, insurance, etc, and indemnifications with distributors are a bitch if they think any aspect of a production may have rights problems.  These issues outweigh any deference to a the rights of a production stills shooter.  This was hammered out in Hollywood by the union (IATSE Local 600) a thousand years ago.  The posters, well that is a different deal. Posters and promo shoots are like any commercial stills shoot.

[pixjohn]

Not every show and not every movie is a work for hire. I just worked on a TV show and negotiated usage. however most films do work on a work for hire bases. I have worked on a few low budget projects and held the © based on the low fee. If they wanted to pay a real rate, then they would own the ©. If they want something for nothing, they should get the same.  I guarantee they will make money if the production is picked up.

[TMARK]

In Spain this is the way it works all the single time, regardless of the reputation the photographer has. The scenario is always the same. Prod have orders to ask always all rights for work for hire. Then you have to negociate before and always the negociation ends well for both parts and writen on contract before shooting. But imagine you've worked 10 times with the same pacted conditions, they still always ask for the same at first and you'll have to repeat the negociation over and over again. It's a game.

On Hollywood productions all production stills are work for hire.  There is no negotiation, but you can be well compensated.

[LKaven]

Hey there LKaven,

I work in the film biz and can confirm that production stills are always on a work for hire basis.  If the producers don't have all rights there are problems getting completion bonds, insurance, etc, and indemnifications with distributors are a bitch if they think any aspect of a production may have rights problems.  These issues outweigh any deference to a the rights of a production stills shooter.  This was hammered out in Hollywood by the union (IATSE Local 600) a thousand years ago.  The posters, well that is a different deal. Posters and promo shoots are like any commercial stills shoot.

I'm glad for the specific reference.  Let me check one thing with you though, regarding the kind of work we are talking about respectively and whether they are the same.

What I'm doing is stills on location for a documentary.  The project and (ad hoc) film company is based in the UK,  but the shooting was in New York.  My activities involved shooting subjects of the film, but none of the stills will be used in the film itself, and none of the stills were taken during filming.  I only know of two intended uses for these stills -- fund raising, and promotion.  A subsequent shoot would involve a poster image, and the question of rights here is open to that as well.

Do you feel this falls under the conventions and guidelines that you cited?

[LKaven]

In Spain this is the way it works all the single time, regardless of the reputation the photographer has. The scenario is always the same. Prod have orders to ask always all rights for work for hire. Then you have to negociate before and always the negociation ends well for both parts and writen on contract before shooting. But imagine you've worked 10 times with the same pacted conditions, they still always ask for the same at first and you'll have to repeat the negociation over and over again. It's a game. I posted after TMARK so won't repeat what's been said but the most important is exactly what he pointed: they don't want right issues.

So then the girl isn't exactly right.  You say it's her job to ask for all the rights, just as it's my job to retain them.  You say this starts a negotiation which ends up mutually satisfactory, even though it always starts the same way.  So in a sense, you are saying that rights are /not/wholly relinquished automatically, which means that the girl is wrong when she says that they are.  You are saying that there is a negotiated position in there.  Or did I miss something? 

[LKaven]

On Hollywood productions all production stills are work for hire.  There is no negotiation, but you can be well compensated.

In this case, it's not a Hollywood production, and the compensation is nothing more than a token.  I just know of no convention governing indie documentaries, and I'm skeptical about any such claim in that area.  You want to do production stills for HBO, you sign the standard contract.  But in the indie world, I know of no counterpart.

[ndevlin]

While I am not qualified to give you advice on New York law (I assume this was in NY), in the absence of a contract the default copyright terms kick in, which in most common law jurisdictions vest copyright in the creator.  They may argue that full-rights-to-them is an implied term of the industry, and therefore was what they were buying for their $200, since this is simply understood. Given that $200/day is so grossly below the usual value of the work, this position would have little traction to my mind. If you're not part of a union, then none of the standard terms mentioned above would apply. If you are, they probably do.

The real issue, however, is not one of strict legal rights, but of the relationship. Want to burn bridges, give them nothing. Want to make friends, give them everything. What do you want out of this? Are these images of any value to you? if you are in a negotiating frame of mind, get a production jacket, or tickets to stuff other clients would be interested in some other decent swag out of it. Or some sort of concrete right of first refusal on their next project (though it sounds like they are, financially speaking, little-league). Think like a businessman, not a lawyer. There's nothing in this worth a legal argument.

My 2c.

- N.

[TMARK]

I'm glad for the specific reference.  Let me check one thing with you though, regarding the kind of work we are talking about respectively and whether they are the same.

What I'm doing is stills on location for a documentary.  The project and (ad hoc) film company is based in the UK,  but the shooting was in New York.  My activities involved shooting subjects of the film, but none of the stills will be used in the film itself, and none of the stills were taken during filming.  I only know of two intended uses for these stills -- fund raising, and promotion.  A subsequent shoot would involve a poster image, and the question of rights here is open to that as well.

Do you feel this falls under the conventions and guidelines that you cited?

Different situation.  What you describe is part of marketing and promoting the film, which is, as you, something different that requires more than $200 a day.

[LKaven]

The real issue, however, is not one of strict legal rights, but of the relationship. Want to burn bridges, give them nothing. Want to make friends, give them everything. What do you want out of this? Are these images of any value to you? if you are in a negotiating frame of mind, get a production jacket, or tickets to stuff other clients would be interested in some other decent swag out of it. Or some sort of concrete right of first refusal on their next project (though it sounds like they are, financially speaking, little-league). Think like a businessman, not a lawyer. There's nothing in this worth a legal argument.

My 2c.

Worth more than 2c by far.  I have no legal fight in mind, and they have no entitlements.  If we go our separate ways, it won't be painful.  I would like to remain on good terms and go ahead and do their poster image for them as was supposed, but not if they are taking advantage of me.  I have independent uses for the images if nothing else.  If I thought they would be a source of anything but this kind of behavior, I might be more conciliatory.

Here is what it might come down to:  They say "we have to have all rights, it's required."  I say if it is required in any binding sense, then where is it written and how?  Is there a specific clause in their grant terms that stipulates exactly and precisely that they must have work-for-hire rights as opposed to a license entitling them to perpetual usage and limited exclusivity, or else they are not entitled to disburse the funds?  This would be a concrete reason, but I have yet to see it.  I think it's ridiculous for the producer to tell me that this is just the way it's done.  According to what?  I need a concrete reason to concede anything on this, wouldn't you think?  

[ndevlin]

If you were my client, my advice to you would be this: you've had a miscommunication between well-meaning people.  A novice producer on an low-budget project found a nice, keen, talented photographer who was willing to help them out for a very reduced rate. No one ever turned their mind  ugliness of a money-thick, over-lawyered business. Assumptions were probably made on both sides. Unfortunately, they were at cross-purposes.  

I can't imagine that these images are worth a damn thing to you long-term. As a photographer, I share your slight sense of violation at giving up all-rights. It's like selling your child.  Usually, as indeed is also the case with the sale of children, you get very well paid for your troubles.  But in this case, there's no gold.

If you rear-up and get all rightsy about your photos, they may effectively be of no use to the producers. They will be worse off than if they never hired you. You will go into the "Problem/Nightmare/Asshole" column in their mental files. Fairly or not.  And, the strong words that will pass will likely cause you to file them similarly in your rolodex.  You probably won't even get your $200. And if you do, you'll resent it.

Life is long. Have a beer with them and explain that you've had a misunderstanding. Then do them a solid and give them the images. Life is long. Karma matters.

There may be a lot of facts I don't know that would change my view, but that is my basic take. If I were your lawyer, I would send you a bill for this advice, in the amount of, ironically, about $200 for the half-hour phone call. On the bottom of the bill, I would stroke through the $200 and write "paid in full by a lesson learned   ".  Because life is long. Fight when it matters. Be nice the other 98% of the time.

Good luck whatever you decide to do!

- N.

[elliot_n]

In her view, I am just naive...

It's naive to be raising these questions on a public forum using your real name.

[JoeKitchen]

While I am not qualified to give you advice on New York law (I assume this was in NY), in the absence of a contract the default copyright terms kick in, which in most common law jurisdictions vest copyright in the creator.  They may argue that full-rights-to-them is an implied term of the industry, and therefore was what they were buying for their $200, since this is simply understood. Given that $200/day is so grossly below the usual value of the work, this position would have little traction to my mind. If you're not part of a union, then none of the standard terms mentioned above would apply. If you are, they probably do.

I can tell you that unless there is a written contract that you signed, the courts will rule in your favor on the copyright issue.  As of right now you own the images and depict how they can and can not be used.  Unfortunately, in this situation, you did not talk about the terms of use before the assignment, which should always be done.  For future purposes, I recommend creating a list of every question you need to ask in order to determine a estimate; my list has about 30 questions ranging from licensing to travel to production cost to etc.  

My advice is that you should agree to give them the right thats they need in order to use the images for this shoot, but tell them in the future you will need to discuss this before hand.  Also, since the pay is only $200 (and grossly below the value of your work), the idea of transfer of copyright should not even be on the table.  Explain to them that  in order for you to provide high quality images you need to charge based on a licensing model.  Doing so encourages you to produce the best image possible since doing so will increase the chance of you selling more licensing.  Charging by the day encourages conner cutting.  So if they want the highest quality images for their film, you need the right to continue to sell your images.  

In terms of it is just an Indie film, which some have pointed out, you should never make assumptions to the extent of how popular the film will be.  Chances are low that the film will go far, but if it is well done, that may not be the case.  I believe "Clerks" was a super low budget film and look how popular that is.  

[Schewe]

I can't imagine that these images are worth a damn thing to you long-term. As a photographer, I share your slight sense of violation at giving up all-rights. It's like selling your child.  Usually, as indeed is also the case with the sale of children, you get very well paid for your troubles.  But in this case, there's no gold.

Not for nothing, but there is a big different between work for hire and a transfer of all rights...I did work for hire once in my career–one spec assignment for Playboy and the "work for hire" came after the fact on the back of the check. I deposited the check and vowed to never do work for hire again. I never have...

The problem with work for hire is that from the standpoint of copyright in the US, you weren't the author of the photographs, the production company was. You would have no future rights and would even been the permission of the production company to show the work in your portfolio...

Since the work for hire was NOT agreed upon before the creation of the works, it ain't really work for hire.

What you can counter offer is a transfer of all rights while retaining some rights for yourself...namely the right to use the images for self promotion and the eventual reversion of the rights to you if the use of the images become dormant (no use for say 10 years or longer if need be).

This will, in effect give "her" everything she needs, legally...and allows you to be the legal creator and eventually have the rights revert to you...

You just never know what the long term value of images really are...and granting them a broad license and transfer of rights will eventually get the copyrights back in your name.

And I will tell you that film production companies may DEMAND work for hire, but will settle for a transfer of all the rights they need. Yes, it's easier for them if you bend over and accept work for hire...but springing a work for hire after the fact is poor form.

[LKaven]

@Nick: Thanks for the good humor and generous advice.  Should I ask, though, if the spirit of compromise extends equally to the producer as to me, were that we would have both approached you.  I see compromise as a good thing, but only judicious compromise, and here there are a few facts of the matter to weigh:  Either they have legal constraints on how they can spend their funds, or they don't.  If they have genuine legal constraints, but did not inform me in advance, then they are depending upon my generosity for their needs and nothing else, in which case, having been generous to begin with, I might judge to be more generous or not.  If the legal constraints are not genuine, then they are untruthful and undeserving of my generosity.

@Ashley: Glad for your input.  I should be more careful.  

@Joe: Thanks.  I agree with you on every point.

[LKaven]

Not for nothing, but there is a big different between work for hire and a transfer of all rights...I did work for hire once in my career–one spec assignment for Playboy and the "work for hire" came after the fact on the back of the check. I deposited the check and vowed to never do work for hire again. I never have...

The problem with work for hire is that from the standpoint of copyright in the US, you weren't the author of the photographs, the production company was. You would have no future rights and would even been the permission of the production company to show the work in your portfolio...

Since the work for hire was NOT agreed upon before the creation of the works, it ain't really work for hire.

What you can counter offer is a transfer of all rights while retaining some rights for yourself...namely the right to use the images for self promotion and the eventual reversion of the rights to you if the use of the images become dormant (no use for say 10 years or longer if need be).

This will, in effect give "her" everything she needs, legally...and allows you to be the legal creator and eventually have the rights revert to you...

You just never know what the long term value of images really are...and granting them a broad license and transfer of rights will eventually get the copyrights back in your name.

And I will tell you that film production companies may DEMAND work for hire, but will settle for a transfer of all the rights they need. Yes, it's easier for them if you bend over and accept work for hire...but springing a work for hire after the fact is poor form.

I agree it is worth retaining the rights.  The portrait subject was once very famous, and is a part of the story of the modern female condition, something with inherent artistic interest.  The film company offered to grant limited rights back to me to exhibit or publish as a part of a collection of my work, or to sell as art prints.  But this obviously forbids anything not yet considered.

A work for hire clause riding on the pay check?  What a sneaky trick.

Thanks.  Discussing this with you and others here is definitely helping me to get clearer. 

[pixjohn]

If I am not mistaken, putting work for hire on the back of a check is not a legal binding contract.

A work for hire clause riding on the pay check?  What a sneaky trick.

I have worked on a few still projects and never signed any work for hire agreement. It is also not binding to make someone sign that type of agreement after the shoot.  I believe a few magazine tried to do that, telling photographers they would not get paid unless they signed it. I think any 2nd year law student could tell you it is not binding.