The copyright minefield, who owns the rights in a commissioned work?

This is not legal guidance, it is not a replacement for advice from a solicitor etc. It’s based on my experience as a cameraman that has been in these situations many times. Read it, understand it, but please take proper legal advice if you ever run into copyright issues!

First of all what is a commission? Well it’s basically anything where you have been asked to shoot or produce something (normally ahead of shooting) and then been paid for doing so.

In respect of who can do what with the footage there are 3 different things to take into account.

1: Copyright,

2: Rights Assignment,

3: Licensing.

Unless the contract between you and the commissioner includes an assignment of rights the copyright almost always remains with the originator. However the originator can through a contract assign the copyright in the original to a 3rd party, in doing so giving up all rights and claims to the original. Most TV commissions will involve an assignment of rights, but it must be written into the contract to be valid and everybody involved in the production should be under a similar contract, because for example if the cameraman does not assign his rights, he keeps them, so the production company cannot then re-assign them because they don’t own them, the cameraman still does.

In all cases you must consider who is the originator of the material. If you are a production company that would be the cameraman, not the production company unless the cameraman’s contract includes rights assignment. The production company would have the copyright in the edit or finished production but not necessarily in the original footage.

A copyright owner can sell a licence to use material that they own the copyright in and this is what you do if you shoot stock footage etc. You do still retain the copyright, you are just selling a licence to use the footage and you can sell multiple licences for the same footage. But you must be sure that you are the copyright owner before you do this.

Where it gets particularly grey, normally because people don’t bother to draw up proper contracts is over the rights in a commissioned work. If there is no contract then all rights remain with the originator by default. However when there is no contract, that can easily be challenged in a court of law, and generally the courts will award the commissioner with a licence to use the footage as they see fit, based on the fact that they paid to have the material created.  The court may also place restrictions on the originator as to what they can do with the footage, for example preventing it from being licensed to anyone other than the original commissioner. So it is vital that whenever you are paid to produce a work for someone that you have a contract that clearly sets out who owns what, otherwise, in reality, the moment you receive payment no matter how large or small, you are giving all your rights away (although it may take a court order for this to happen). Licensing footage you have shot while working on a commissioned project is a dangerous thing to do unless you have a contract that that specifically states that you are retaining your rights in the material.

For a commissioned project where I want to retain the right to use or later licence the footage to someone else I will normally include a statement in the contract that the rights in the material remain with me and that I am providing a licence for the commissioner to use the footage within their production for a specified period and geographical area. Depending on the client this will often be an indefinite period and include the entire known universe. Sometimes I have to give them a licence to do whatever they want with the footage, even sub licensing. But I do still try to retain my right to do what I wish with the footage, perhaps after a blackout period. Sometimes this just isn’t possible, many times I have to assign all my rights to the commissioner.

The main thing is to have a contract and a clear understanding of who owns what as more often than not if you’ve been paid and it goes to court, no contract = no right to use or licence, even if you do still own the copyright.

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