Copyright and IP
Here’s our handy little guide on all things intellectual property, copyright and IP’s.
Getting rights right
When you work with us we will ask you to sign our Terms and Conditions. Our T’s & C’s are designed to give you the confidence and peace of mind that there will be no nasty surprises. We’re making the content for you, and want you use it without additional or unexpected costs, claim, or complication.
When you commission another person or organisation to create a work for you, the first legal owner of copyright is the person or organisation that created the work. It is not the commissioner.
Our agreement with a client confirms that they will have licence to use the work for the purpose for which it was commissioned, with no end to that license.
For example, you commission us to paint you a painting. It’s not for anyone else and once you have it we’re never going to ask for it back or ask for more money!
Our terms were designed to confirm to our clients that the work we produce will be theirs to use in the way that they have outlined to us, without inhibition, ongoing costs or rights claims.
Transfer or full ownership?
You could say, ‘I paid for the painting, why don’t I own everything to do with it?’
You do not have the right to be identified as the creator of the work if you did not create it. This is a right that we at LIQUONA reserve (see moral rights below).
For example, you wouldn’t buy a Van Gogh painting and then claim it was you who’d painted it. In the same way, a professional photographer will always want credit for their work – you’ll find their name appear next to the photo wherever it is broadcast.
Clearly agreed licence terms protect the client and protect us. For example, we may negotiate a music licence based on the understanding that a client’s video is to be used on their website. The client then uses that film in presentations, or on youtube, that’s fine as our license agreement will cover that use and protect them if someone challenges its use.
However, if a client later uses that same video on a DVD which they sell, or use as a TV commercial, the use of just the music alone would now be in breach of the music licence. This is because it does not align with the original intended use of the video. The musician, composer, record label and sound recordist would all now be entitled to additional rights payments because their work was now used on television to promote a product or service, or re-sold.
The client may have now unwittingly become an illegal music distributor, video ‘pirate’ or offended the creator of the works which could bring about a libel claim, as well as owing multiple groups un-negotiated rights payments for the new use of the work.
What does all of this mean?
Our terms and conditions confirm to our clients the extent to which we are licensing the work that we create for them.
It protects both us and our clients from confusion, and should give clients the confidence that you will be able to use the video as you intend to.
Our terms confirm our legally protected rights, whilst also making it clear to our clients that there are no hidden rights or charges that will inhibit them from using the video that we have produced for them in the way that they want to use it.
I want to own all the IP!
Clients have asked us to be given all of the components or ‘assets’ that make up the film and therefore the ‘know how’ or IP that makes our films unique.
In reality when asking for the IP or the source files, that’s not actually what the client means, they usually mean to have a master copy and to know that the content is theirs to use: No problem!
When we make a film – the finished film is fully licensed to the client to use and we’re not giving it to anyone else. In some people’s language that is owning the IP for the film. But, if we’re being legally accurate to the request to ‘own the IP’, they don’t and they can’t.
Being true to the definition of handing over the IP would mean waiving our rights to use those ingredients and that knowhow again because we no longer have the right to use it; someone else does.
Metaphors say it best…
It’s a bit like baking a cake. We’ll hand over the cake, we can even bake individual bits that can be delivered along with the cake, but we can’t hand over all of our ingredients and recipe book and then waive our right to use those ingredients or bits of the recipe again in the future.
Or, it’s a bit like that painting; we can hand over the painting and even the paints that we’ve mixed up for that painting, but we can’t hand over our source paints, brushes, sketch books and artistic style, and not be allowed to create similar works again.
On any project we will have used assets that were used elsewhere in our studio.
This can be a myriad of things from the texture on a table top, the silhouette shape of a computer, a swooshing curly line.
- These assets come from a plethora of both internal and external sources.
- They are then designed in to a client’s project, giving it a finesse, speed, and economy that would not be otherwise possible.
- All of these elements are too numerous to list individually as exclusions; it’s the way we and the industry works in the digital age.
To hand over IP for everything to a client would mean that we couldn’t use any of those assets in the future!
It wouldn’t be silly to expect to see animations from a rival video production company using our table top texture, the apple or the swooshing curly line! This would occur if they were given the IP by the client. We’d not be able to use it, and a competitor would be benefiting from our work.
When we shoot a film for a client, we will happily hand over all the raw footage that we shot, but we won’t hand over the edit file aka ‘the cut’. Why? Because there will be elements in there which our designers have spent years finessing. For example, this could include a transition or an effect that has been applied to the footage.
If the creative assets were handed over, any future editor from any company who has access to the project files could take that effect or transition and use it for themselves, it’s like copying someone else’s homework. If the ‘IP’ has been handed over too, in theory, the editor who first made the transition or effect would no longer have the right to use it themselves.
An Editor’s Life: The Gash Drive
Most editors will own and guard with their life a ‘gash’ drive. This is a hard drive with years worth of their favourite transitions, effects and colour settings that they have created and finessed. It’s a sales person’s little black book, or an engineers personal tool box.
They will take that hard drive with them throughout their career. Again if a project’s IP is handed over to a client it would technically remove that editor’s right to use their own effects again. It would also mean that their carefully guarded work could be widely disseminated by the new IP holder.
For all of the reasons above, creative agencies are not able to fulfil a client’s request when they ask to own all the rights or have all the IP in their video project. Hopefully the above helps demonstrate that it is not reasonable or practicable.
The Berne Convention (article 6bis) requires member countries to grant to authors:
- (i) the right to claim authorship of the work, and
- (ii) the right to object to any distortion or modification of the work or other derogatory action in relation to the work, which would be prejudicial to the author’s honour or reputation.
These rights are known as the moral rights. The convention requires them to be independent of the author’s economic rights, and to remain with the author even after he has transferred his economic rights.
For example the singer MOBY will not allow his work to be used with imagery of meat as he is a strict vegetarian. This is regardless of whether the use of his music has been paid for; it’s a right that he reserves as the author.
As the author of our film and animation projects, we reserve the right to claim authorship of the work, a right protected by the Berne Convention.
We put a discreet end credit on the film (as clearly outlined in our terms and conditions, note TV ads are exempt from an end credit requirement).
If the film has sensitive or private material in it we will not put it on our website, but we may produce an alternative version of the film that won’t compromise any confidentiality or sensitivities.
Handing over project files
If clients wish to receive the raw footage from our shoots for them, we can supply a hard drive with the footage on it for a small cost.
If you require a version of the film without audio or speech so that you can manipulate the cut yourselves in the future, whilst we’re sorry you are not choosing us to do that work for you, this is fine.
However, we will not be able to supply the edit project files, or ‘EDL’ for the film or animation because this is our Intellectual Property. It will also contain material licensed to us. This means that another party holds the rights to such material, and can include the likes of fonts, images, music, and third party plug-ins. No one other than the copyright holder themselves has the right to distribute these materials that are licensed to us. Liquona would be committing piracy if we gave a client the third party fonts, music and images used in our projects.
A Practical Perspective on Copyright
Different hardware, software versions, 3D party plugins and broken links would be the common issues if another user tried to open our files.
In 2016 we met with the IPO to get their opinion on this issue of handing over project files.
They clarified that there is no grey area on the issue around source files. In fact their metaphor was that asking for a creative agency’s source files would be like buying an iPhone and then asking Apple to handover the manufacturing blueprints and components. If Apple released their manufacturing blueprints allowing any hobbyist to have a go at making an iPhone to sell with an Apple badge on, then Apple’s reputation would soon be in tatters.
Like physical property, copyright can be bought or sold, inherited or otherwise transferred, wholly or in part; that’s why our terms and conditions bring clarity to where the copyright resides.
Sources and further information
WIPO : World Intellectual Property Organisation
IPO : Intellectual Property Office
Briffa: IP Law firm
#IntellectualProperty #IP #Copyright