Video, Work for Hire and Copyright

Many still photographers who are new to video, ask me; “A client is asking me to sign a “work for hire” contract – What do I do?” By law, a creator holds copyright to their work. imagesHowever, when signing a work for hire contract, a creator relinquishes ownership to their work, transferring it to the client who commissioned the work.

Professional still photographers are accustomed to maintaining ownership and copyright to their work and use a business model based on licensing their images and charging for usage. Video production is a collaborative effort and contracts are generated by whoever is commissioning the work and paying the bill. Most contracts are work for hire agreements between the client (executive producer) and all the players on the team, from the director of photography to the sound engineer to the gaffer (lighting). However, when I have worked direct to client and assumed the role of producer, I have been successful in amending contracts so that I maintain the rights to any unused b-roll – that is if the subject matter isn’t proprietary.

If you are working on self-initiated projects like a narrative film, a documentary or just shooting independent motion clips for stock, as the creator of the work you hold the copyright. It’s important that you register the copyright of your work. If you are registering independent video clips, you register them just as you would your still images, using the VA form. I license my motion clips, just as I do my still images.

If you are registering a movie/film, you are registering the “whole” and you have the rights to use the content that is contained within the film in the context of that “whole”. When registering a movie use the PA form.

One thing to remember; if you are a still photographer getting into video production, please respect others’ intellectual property rights. I see too many photographers using mainstream music in their videos and I know they didn’t license the rights to that music because it would have been cost prohibitive. If I can’t afford to license mainstream music for my compilations, I either use royalty free music or I commission someone to create the score.

Here’s more information about copyright for motion and video as well as information about fair use:

Copyright Registration for Motion Pictures Including Video Recordings

Gail is President of the National Board of ASMP (American Society of Media Photographers)

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Copyright, Contracts and the Independent Photographer

Most photographers hold copyright sacred.  By law, (in the United States) a photographer holds the copyright to his or her work, unless they transfer it to another person, company, institution or organization.  Generally, this happens in a “work for hire” situation.  But it appears that this is becoming more and more the standard in contracts between photographers and the clients who are commissioning them.

This is happening more frequently in editorial markets, where magazines see the added value of the photographs that they commission, beyond their original usage and want to keep that additional revenue, rather than relinquish it to the photographer.  Many publications have partnered with stock agencies for the purpose of “reselling” the images.  Historically, photographers would benefit from relicensing their photographs when shooting for publications. Editorial assignments paid much lower rates than commercial commissions so in return a photographer would receive a credit and in most cases could make additional money by relicensing their images for other uses.  That is quickly changing.

Photographers have been so narrowly focused on just holding on to their copyright, they haven’t been paying much attention to the details in the contracts. Some contracts being offered, transfer the photographer’s copyright to the magazine and in turn offer the photographer a small percentage of any future commissions made from the “resale” of their images, but this of course is a percentage of the magazine’s commission after the stock agency takes their cut.  A lot of photographers think that’s better than not getting anything at all.  But is it?

What’s most alarming in some of the recent contracts that I have seen, is a clause that states that the photographer will hold the magazine harmless if there should be any legal consequences resulting from their images.  So, contractually, even though a photographer no longer holds the copyright to the images they were commissioned to create, nor maintains any control over how those images are used (by the magazine or the stock agency) they are liable if there are legal consequences.

The devil is in the details.  Read the contracts. Do the math and ask yourself if you’ll still be in business in 5 years.  As for me, I see new opportunities beyond commissioned work and one of the many rewards is that I will hold the copyright to the images (still or motion) that I create.

New Business Models in Photography and Video

This topic comes up a lot these days.  But you could apply “new business models” to just about any business – not just photography and video. Photography and video, in and of themselves are not business models at all, but rather they are mediums that are used commercially, non-commercially and personally. The business end of photography and video comes when you determine how you want to apply them in terms of today’s markets.

Today’s markets are global.  That’s good news and bad news, depending on the type of work you do.  If you are a stock photographer or even if you have expanded that into also shooting stock motion footage – your inventory or your content if you will, must be unique in some way in order to sustain that type of business model in our global economy. You will need to stand out if you pursue this type of market.

If you are a commissioned commercial or editorial photographer, cinematographer, or director, the competition is fierce and once again, if you don’t have a unique style or vision, most likely you will end up playing by others’ rules or signing “their” contracts.  It comes down to supply and demand of talent and work, and you either need to compete by price or offer something that you do better than your competition.

The good news is, if you are willing to do the work, the world is your stage.  The portals for distribution of your “content” are open to all and as “creatives” we are no longer dependent on middlemen.  When I get asked to talk about “new business models”, I always look at it as “where are the new opportunities?” – where I will be carving out my own “new business model”, rather than having to adapt to others ideas of what that is.  There is a big difference in those two approaches.

I am carving out a business model for who I am creatively, and where I see the most opportunities for what I do well.  When I am authentic to who I am and apply this to my work, I am able to get the type of work to market and reach the right audience while maintaining ownership and control over the licensing of my work.  I am able to do that not only because technology has enabled me to do that, but more importantly it has created a demand for the type of content that I create.

Think about it.  What are your strengths? What are your passions?  Now imagine a business model based on your answers. The world is our stage.

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Photographers/Filmmakers as Publishers/Producers

It’s been a busy year, trying to manage jobs and lots of road trips giving seminars for ASMP to photographers who may be contemplating video.  I’ve enjoyed meeting my peers and sharing information through my presentations as well as on my blog, but I need to take some time to get back in the field and capture my own “moments” and “motion”. I need to spend some time “doing” right now and ultimately that will make what I have to share that more valuable and meaningful. So I will be embarking in a couple of weeks on a “passion project” that will take me around the world for 99 days.

It’s an exciting time to be working on a personal project because of various distribution possibilities and portals that are in everybody’s hands.  Ten years ago when I got started in video, technology made it possible for me to create documentaries and films without the need of large crews and big budgets.  And now with the web, fast download speeds, video host sites, mobile devices and itunes – I can – we all can be publishers and producers and get our content out globally. The pipelines have been democratized and it’s a very empowering position.

I’ve spent a career on the road and on assignment for various publications and corporations.  I’ve been fortunate to have worked for magazines like National Geographic Traveler, Smithsonian and Travel & Leisure shooting stories on destinations and people all over the world. I suppose you could say that I lived the life I dreamed of. I was shooting these assignments at a time when magazines were giving me ample time in the field to come back with a story – back when travel magazines ran stories as opposed to survey pieces or celebrity profiles. More importantly, I maintained the copyright of my images and was free to market them as I wished after a standard embargo period was over – usually around 90 days.

These days many publishers issue “work for hire” contracts, so essentially photographers are giving up their copyright. Photographers have always been strong advocates for copyright and I include myself in that position.  But in our advocacy to keep strong copyright laws in place, we end up fighting for that right for large corporations and publishing empires who ultimately take away our copyright in lopsided contracts.  And for the most part these contracts are not negotiable.  You either agree and take the job or you don’t.

These days because of technology we can be our own publishers and deliver our stories and other content in a number of different ways.  Sure it means taking the risk up front but that in itself brings its own rewards. It’s very liberating to be shooting and answering only to myself – not second-guessing someone else.  I take more chances creatively because I’m not afraid to fail.  And every time I’ve ever done that, I’ve grown and the rewards have been many – both creatively and financially.

I don’t know exactly how and where my Opening Our Eyes project will be distributed when I complete my journey.  But these days – it could be a book, a multimedia exhibition, a feature film distributed through itunes or on a DVD through Amazon, various magazine articles or broadcast.  I could package the journey and the back-story and give talks to universities.  An endless sea of possibilities.  What an amazing time we live in where we can all make our dreams come true.

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Copyright and Video

As still photographers move and expand into video because of the convergence of their tools, they often ask me about copyright, licensing and usage and how to apply that to video.  Essentially they are trying to apply a licensing business model from their still photography and sometimes that doesn’t work in video production.

The biggest distinction between shooting video and shooting still images is that for the most part a video camera operator is just one of the many creative people involved in a video production.  So unless the camera operator is also the producer and in charge of the entire production, including the hiring of the crew, they will be working in a “work for hire” situation.  One video project can’t have every collaborator on a project maintaining ownership of their part of the whole.

Depending on the job and the market you work in will ultimately determine who will maintain ownership, copyright and control.  Generally speaking the end client or video production company holds the copyright to the finished production.  This is why I made a conscious decision when I got into video many years ago, to position myself as a producer and not “just” a content provider. I wanted to maintain creative control and ownership of my projects.

But even in still photography these days, I see more and more “work for hire” contracts, and in market sectors like editorial where that wasn’t the case just five years ago.  Sometimes I feel that in our efforts to protect copyright laws, we end up fighting for that right for big corporate entities that in turn grab those rights from the creators through lopsided contracts.

Something to think about – maybe with new eyes.  Perhaps we need to start thinking of ourselves as “publishers” rather than just content providers.  It’s never been more possible to be a publisher, because distribution has been democratized by the web, giving all of us a pipeline to a global audience.

It’s time to look at our creative businesses with new eyes and not just on the creative part of the process – but the business part as well.  I’d love to hear others’ thoughts and ideas on this topic.

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