Film stills and "work for hire"

[ndevlin]

Luke, I completely agree that mutuality of goodwill is what should be expected. You probably hold the cards, so if they are complete douche bags, tell'em to pound sand.

Jeff is also right to note the distinction between work for hire and a sale of all rights.

As an aside, I'd be curious to know whether an attempt to create a work-for-hire contract after the fact even has legal effect even if 'agreed' to, since copyright attaches at the moment of creation? The very fact that you are in a position to 'sell' the work as a 'work-for-hire' presupposes that you own rights in it, which is inconsistent with the notion of the hirer being the author.  Anyone who practices in this area happen to know?

- N.

ps. the "need" for work-for-hire is bullshit, as is the notion that anyone walking through the background of a shot needs to sign a release, etc. It's the culture of fear, greed and overlawyering which has led to this nonsense. It's 'real' in so far as that's how the industry operates, and if you want to eat lunch in that town, you have to play the game. But no one should think for a moment that ithere's any intrinsic reason or principle underlying this.

[John.Murray]

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.

What a refreshing point of view!  (i'm the "creative one" in a family of attorneys)

[LKaven]

As an aside, I'd be curious to know whether an attempt to create a work-for-hire contract after the fact even has legal effect even if 'agreed' to, since copyright attaches at the moment of creation? The very fact that you are in a position to 'sell' the work as a 'work-for-hire' presupposes that you own rights in it, which is inconsistent with the notion of the hirer being the author.  Anyone who practices in this area happen to know?

I've seen a few law sites that make specific mention of the idea that work for hire contracts may not be applicable after work has begun.  I get the feeling that the courts are not yet settled on this issue.

http://www.copylaw.com/new_articles/wfh.html

[woof75]

Don't worry about it, if you sign away all the rights to this your not going to lose much (if any) money, if you really play hard ball your barely going to make any extra cash. Don't sweat the small stuff and this is without a doubt small stuff. Especially when your new to the game.

[LKaven]

This might sound a little odd, but on small indie arts jobs like this, I often do not push for a negotiation of rights before the job.  If someone is paying me two hours wage and hoping for two days work, I'm not inclined to make any promises in advance on how much generosity I'm going to extend them.  If I'm working with someone very deserving, I'll be more generous at my discretion.  The downside isn't too bad as the previous poster pointed out. 

This was the first time that anyone ever pulled anything.  I really tried to assess the range of standards and ethics that were being conventionally applied.  The ASMP web site was particularly helpful, and pretty clear on the fact that there is no universal consensus over location stills as works for hire.  Now I'm going to see if I can come to an amicable agreement with the film-makers.

[LKaven]

From the American Soc of Media Photographers web site:
http://asmp.org/tutorials/rights-licensing.html

"Video Tutorial
Rights & Licensing
Who owns the rights?

These answers were inconsistent, ranging from owning all rights for projects that were wholly produced to relinquishing rights to the client. Generally speaking, the rights to broadcast spots produced by ad agencies are owned by the client. Motion pictures rights are owned by the production companies that created them.

    * In still photography, it’s more standard to own the rights to the photos, except in the rare instances when a client buys them out. As for the video, it is a completely different system and giving all rights to the client is the standard. Many times, rights are retained for use of the final piece for self-promotion.
       
    *  Work for hire is typically a surrender of all rights when you hand over the tapes or hard drives you just shot. If you are the producer holding the budget for the job, then there’s an opportunity to structure a secondary revenue stream.
       
“As of today, I still license my usage for motion work.”
Jim Scherzi www.scherzistudios.com

“The rights to stills are with the creator, the motion is typically not licensed.”
Richard Freeda www.mergegroup.com

“For most ‘classic’ cases, rights are given to the client. New, hybrid media relationships should take another road.”
Jorge Parra www.jorgeparra.com

“For jobs that I bring in and produce, I own the copyright. I may own nothing if I work with another team or company where I am only the DP or cameraman.”
John Trotto www.johntrotto.com

“The client. Ultimately they own the rights and call the shots. It’s their money.”
Walt Jones www.waltjones.com"

[ChristopherBarrett]

Oh, man that sucks. I hate this sort of stuff. I recently had a project where my client's client stipulated that all rights to the images would be turned over to them. I  declined the assignment.

My client was very understanding and said they probably wouldn't bother shooting it at all.  I was initially really pisssed off and had to have my wife edit my reply for diplomacy's sake.

CB

[Gigi]

Some very good advice here. It seems in several groups:

- they were a bit underhanded in how they asked/demanded for this, after the fact
- its a small production, and you might have given it to them if they'd asked up front (if not, then the rest of this is clearer)
- once someone pulls something like this on you (assuming that's what they are doing and its not just incompetence on their end), you start to think... and then it all gets worse.

I'd go with the "have a beer with them" school of thought. If not, then do whatever you are comfortable with, as there is no good answer when you are backed up against a wall.

[gwhitf]

.

[fredjeang]

Gwhitf, your post is very direct but I must admit that you are 100% right.
I'm kind of surprised in some posts in this thread that previous negociation seems to be "ignored" and as I've stressed, the fact that I said "the girl is right" (in that case the girl=the prod) seems to give a bad taste of unfairness. But indeed, people feel offended anf fooled before they get the knowledge of the subject. In this case the work for hire condition is NOT a mistake, what's a problem is the team work-for-hire+200 bucks...As you point, now it's: first we shoot, then we'll see...it's backwards. First we see (we speak), then we shoot, or we shoot not.
The negociation task has always existed, I remember very well in photojournalism even big big names had to negociate every single time and every single time the parts reached agreement wich becomes definitive before the shooting.
So now a negociation is needed after, and it's very embarrassing.
Times are wired.

[Rob C]

Gwhitf, your post is very direct but I must admit that you are 100% right.
I'm kind of surprised in some posts in this thread that previous negociation seems to be "ignored" and as I've stressed, the fact that I said "the girl is right" (in that case the girl=the prod) seems to give a bad taste of unfairness. But indeed, people feel offended anf fooled before they get the knowledge of the subject. In this case the work for hire condition is NOT a mistake, what's a problem is the team work-for-hire+200 bucks...As you point, now it's: first we shoot, then we'll see...it's backwards. First we see (we speak), then we shoot, or we shoot not.
The negociation task has always existed, I remember very well in photojournalism even big big names had to negociate every single time and every single time the parts reached agreement wich becomes definitive before the shooting.
So now a negociation is needed after, and it's very embarrassing.
Times are wired.

Hi Fred

Not only has it always been difficult for young people to negotiate, I seem to remember that they were sometimes used because they were young and starting out and wouldn’t know any better.

Even having a contract can be less than enough. I did a shoot for a tour operator once, and it all went well and we shot for two weeks. Then, the following year, I was asked to do another one, and set off to Spain and the job. During both the first and this later assignment, I was put in the hands of the company’s Foreign Manager, who was based in Barcelona.

The work ran into time and weather problems, and I told the Manager that I would stay on and continue if he got it cleared by the client. He contacted them and I got permission to stay longer. I delivered the work, sent in the bill and waited. And waited. I eventually went to see the ad agency to find out what was up, and I was told they wouldn’t pay my bill because it was higher than the quotation. I told them I’d been asked to stay longer and was only charging at the same rate… they replied that they had not authorised the extension, and they were right: the Foreign Manager had asked his boss, the man who owned the tour operator. That way, I learned about the tricks of the Principal Contractor etc., but not before I’d hired a lawyer and lost even the money I’d already covered during the pre-extended time I’d worked.

So, you should study some business law before you hang out your shingle. In short, everybody is out for that free lunch, including the lawyers who must have known before they started that I hadn’t a prayer. Bastards, that bunch I used.

Rob C

[terence_patrick]

Got some insight from the other side of the table...

One of my close friends is a General Counsel at CBS and one of the shows he handles is America's Next Top Model. I asked him about the rights situation with all of the fashion photographers that appear on the show and he said they all had to sign a work-for-hire agreement, including the "big names". He said the photographers are given license to use the images as self promotion, but cannot ask for model releases and cannot sell the images without separate negotiation with CBS. He said most photographers jump at the chance to be on an internationally syndicated show and see the opportunity as more of a self promotion vehicle and has only been turned down by a photographer's agent a couple of times. He also said that most photographers understand that the segments in which they appear are really more about Jay Manuel and that the shoots are directed for the show, not the images.

[LKaven]

[This response was originally in reply to a posting by gwhitf, who subsequently deleted his posting after receiving new information.  I've edited out the content directed at him as it has served its purpose.]

[...]

In the case in question, I took a calculated risk.  There are a lot of people, good subjects, given the number of talented artists who work in Greenwich Village, who like it when I will do things for $200 or so.  In my view, this is appealing to my generosity and I measure out my commitments according to how deserving the subject is and whether they have the wherewithal to put what I give them to good use.  I always give them what they actually need, and sometimes a lot more.  But it is elective, and they have to deserve it, and I retain the right to exercise my discretion where possible.  And when I say this, I don't mean that I will slack on the images, but will reduce effort on the production (shoot natural light versus scout location, set up, and light with strobes) or post.

In this case, I did not press for a discussion.  But this is partly because I'm not interested in giving up any of the rights conferred under the law, and I'm not interested in gaining new obligations.  If they, or any of these people looking for arts support don't pay me for some reason, I can walk away.  In my experience, they all choose to pay.  And I don't regret helping these people.  

On anything bigger than this, I have a rep who is very experienced with contracts on all sides.

The reason I posted here was not out of distress, but out of a need to make a moral decision--not a business/professional decision, but a moral one about how much generosity on my part was merited here.  In order to make that decision, I wanted to know (i) the law on post-facto WFH agreements and their legality, (ii) the truth about the conditions attached to the film company's funding, and whether they were telling me honestly if not truthfully, and (iii) the expectations of others working on similar projects, mainly in the indie sector, which appear to be divided.  

By the way, all my communications with the film company have been short and polite.  I'm more open here because I want good information.  There is no possibility of any legal action by either party whatsoever.  But the legality of post-facto WFH agreements figures into the process.

[...]

[gwhitf]

I apologize. Good luck working it out.

[mtomalty]

Gwhitf,

I don't feel you owe anyone an apology for your post.
Given the information that was revealed by the OP up to the point of your
post it would have been difficult to assume anything too differently that you had.

In light of newer info supplied by LKaven one can see a different scenario
but hardly your fault.

Too bad you deleted your post because,although it was no longer an accurate appraisal
of LKavens case, it was a great response to a generic situation that occurs daily

[ctz]

Gwhitf,

I don't feel you owe anyone an apology for your post.
...............
Too bad you deleted your post because,although it was no longer an accurate appraisal
of LKavens case, it was a great response to a generic situation that occurs daily

+1, same opinion here

[bcooter]

The best information is the information you don't want to here, or know or think about. 

It's gonna come from people like Gwitiffffffff and Schewe.

Guys that spent there lives looking through that tiny hole of some worn out camera trying to make somebody's product, service, face, feet, eyes, ideas, or toothbrush look good.

These are two guys that give it out straight and have absolutely no malice in what they say. 

It's just good honest information from people that have dedicated 75% of their waking moments making little pictures they're proud of, and the rest of their time finding smart ways to get paid for it.

The cool thing . . . actually the damn amazing thing is thet're willing to share, because no offense to anyone, but if your good at making litle pictures . . . real good . . . you usually aren't the sharing type of person.

I don't agree with everything they say, hell I don't even agree with everything I say, but I can promise you it comes from the heart, it doesn't cost you a single penny to read it, or if you don't like it just ignore it.

The information may be free,  but it's worth it's weight it gold.

IMO

BC

[LKaven]

I apologize. Good luck working it out.

I thank you for this, and I subsequently went back and edited the message to reflect a better understanding between us.

I do think that you have a lot of good wisdom to share, and hope to be the beneficiary of it in the future.

[LKaven]

The best information is the information you don't want to here, or know or think about. 

It's gonna come from people like Gwitiffffffff and Schewe.

Add yourself to that list, even if you don't agree with yourself.  :-)

Schewe did clue me to the important Playboy case.  Those checks with a WFH rider on them were the grounds for a landmark case (Dumas v. Playboy).  It cast strong doubt on the practice of signing WFH agreements presented after the fact.

[cyberean]

Gwhitf,

...

Too bad you deleted your post because,although it was no longer an accurate appraisal
of LKavens case, it was a great response to a generic situation that occurs daily

+100