Copyright and IP
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 when you work with us. We are making the video for you, and want you to able to use it in the way that you intend to without additional or unexpected cost, 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, and not you 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.
(i.e. You commission us to paint you a painting; we’ll make that painting for you, it’s not for anyone else, 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.
But this does not result in a transfer of full ownership.
(i.e. “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, and this is a right that we reserve (See ‘moral rights’ below). You can’t buy a Van Gogh painting and then claim that you painted it and that he didn’t, you would have discredited him and his abilities. In the same way a professional photographer will always want to be able to take the credit for capturing a moment on camera, which is why their name will always appear next to the photo in a newspaper, magazine, an online article or when the image is broadcast etc.
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 it’s use. But if a client later uses that same video on a DVD which they sell on, or as a TV commercial, the use of the music alone would now be in breach of the music licence that we had originally arranged for the intended use of the video. The musicians, label and sound recordist would all now be entitled to additional payments as their work was used on television to promote a product or service, or in the example of the DVD their work is now being re-sold and the client just unwittingly became a music distributor or at worst a ‘pirate’ which they’ll pay handsomely for !
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 the ‘know how’ or IP that makes our films unique.
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; here’s why…
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 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, our brushes and sketch books.
On any project we will have used assets that were used elsewhere in our studio; for example in an animation it may be the texture on a table top, the silhouette shape of a computer, a ‘swooshing’ curly line, a 3D apple. All of these things and many many more come from a myriad of sources both internal and external, and 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 ingredients, e.g. the table top texture, the apple or the swooshing curly line in the future!
We could then even expect to see future animations from a rival video production company using our table top texture, the apple or the swooshing curly line as they could be given the assets and the IP by the client, and which we can no longer use ourselves.
It’s the same with film…
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’ as there will be elements in there which our designers may have spent years finessing, for example a transition or an effect that they apply to the footage. These are the very personal bits of creative which our team bring to a project and which if handed over would mean any editor in the future who has access to the project files could take that effect or transition and use it for themselves, and in theory, our editor who first made the transition or effect no longer has the right to use it themselves anymore as the IP has been handed over.
Here is an insight.. Most editors will own and guard with their life a ‘gash’ drive; it’s a hard drive with all of their favourite transitions, effects and colour settings that they have created and finessed over the years. They will take that hard drive with them throughout their career. 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 if they ever use any of them in a clients project, and 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 ‘all the IP’ in their video project.
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 do this by putting 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) and by reserving the right to show the film on our website in our portfolio. 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, or a summary of the film that can be shown on our website without compromising 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 for a small admin 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, this is fine.
However we will not be able to supply the edit project files for the film or animation as this is our Intellectual Property. It will also contain material licensed only to us, which others hold the rights to, such as fonts, images and music, which no one other than the copyright holder themselves has the right to distribute. It would be piracy for us to ‘give’ a client the third party fonts, music and images used in our projects.
In 2016 we met with the IPO to discuss their own marketing video; which offered us a great opportunity to get their opinion on this issue.
They told us that there is no grey area on this issue around source files. 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.
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.
Finally, our brand is built on our client’s trust in the quality of our work. Referring to the Berne Convention outlined above, if we were to hand over project files, we would allow any unknown quantity to modify our work such that our reputation as the producer is damaged. Back to the IPO’s Apple example; it’s like Apple releasing their manufacturing blueprints allowing any hobbyist to have a go at making an iphone, then selling it on with Apple’s badge on it… Apple’s reputation would soon be in tatters.
Sources and further information
WIPO : World Intellectual Property Organisation
IPO : Intellectual Property Office
Briffa: IP Law firm
#IntellectualProperty #IP #Copyright