Home movie rights

[wahiba]

Well, there is one thing I have learnt. No one here really has a clue.

Any real lawyers out there, who actually know?

All I can say is that the old adage, possesion is 9 points of the law would come in to play because if you owned the only original film which you had legally acquired then the onus would be on anyone else to prove ownership of rights etc.

[Cranium]

Ahhh finally! I was expecting another whole page without anyone mentioning this. Thank god it made the first post of page two.

I know folks will argue this, but it would be really REALLY hard to prove ownership of the original film without both a copy AND a contract. Since we've all likely got the only copies of home movies, unless we make some serious $$ off of them, the likelihood of it ever blowing up is rather slim.
From my standpoint, the worst you'll come away with is an order to cease.

[BSMaier]

Wow thanks for the quick replys. So the short answer is this is a pain. But if i write up a little letter and have them sign it, stating that any/all rights are transfered to me would that be sufficient?

[MovieStuff]

Well, there is one thing I have learnt. No one here really has a clue.

Well, that is incorrect. I can guarantee you that the information I've provided is dead on. I have a lawyer that has handled all our business copyright issues for years and the info I've given is straight from the horse's mouth. You don't have to believe it if you don't want to but you won't find anything different after you do research, but don't let that stop you.

BTW: The old saying about possession is 9/10ths of the law is merely that: An old saying. Ownership is not an "iffy" thing subject to interpretation and opinion. One either has the legal right to something that they can prove or they don't. Because copyright is NOT a tangible item, then documentation is required to prove the transference of that right to someone else. That's not my opinion. That's the law, at least here in the states.

Roger

[ericMartinJarvies]

by law, any 'works' created by any person in any governing system is subject to one law or another. these protect the original artist from the moment they create thier work. depending on the governing law, an artist or the creator of any given work is legally protected for 'x' amount of time prior to actually filing/submitting any legally acceptable documentation for submittion at the immediate governing entity that serves as the records house for which they maintain such submission, but do not inforce any such laws that may apply to them on your behalf.

if you are going to base any of your works on a book, short story, play, or other literary or copyrightable work, including photos, drawings, paintings, videos, and films, you need permission from the copyright holder 'unless' the work is public domain. copyright is a limited duration monopoly and works fall into the public domain and becom freely usable by anyone once the copyright term runs out.

for example, many of mark twain's books have been made into movies, and you do not need to ask permission from his descendants to write a screnplay or to do a movie based on tom sawyer. if, however, you want to adapt a john grisham thriller into a movie, you need permission from grishm or whoever controls the motion picture rights to his book. take note, 'whoever owns the/a specific area of rights for that particular copyright.' to determine copyright, or to determine if once copyrighted material is now in the public domain requires exhaustive research that basically will require researching the entire legel portfolio of said holder. in the US, ending to 1978, under the 1909 copyright act, said holders could apply for an initial term of 28 years, and a renewal term of another 28 years with proper filing, for a maximum of 56 years from 'publication.' thereafter, the work would go out to the public domain. works NOW have a copyright duration commencing on their creation(NOT 'publication') extending 70 years after the death of the author/works/rights holder. there are some complicated transisition issues on works created before the changes of the law in 1978, and some other changes thereafter(go to the uspto.gov website and start from there). other countires vary in the scope and duration of the copyright protection they offer. since you MUST have rights throughout the WORLD before proceeding, you MUST be sure the underlying work IS public domain throughout the world!!! some works are public domain in the US but are protected in other countries, for example. if you need to find out if the works are protected in the US, a good place to start is http://www.loc.gov/copyright/ . the rule of thumb, to play it safe, is the author should be dead for about 100 years. otherwise, you will need to deal with the author directly or his decendants or those who have legal right to his works. even if you beleive that there is no copyright filed, you should remember that under the new revisions of the law, the creator of the works does NOT have to file documentation in order to be protected(remember i had previosuly mentioned under the old law it was protected upon 'publication' and under the new law it is protected upon 'creation').

to start yourself off in the right direction regarding performing searches, or having people that specialize in such work, look up: thomson & thomson in beverly hills, ca. or federal research, 400 seventh street, NW, suite 101, washington, DC 2004 800 846 3190, or fax then at 800 680 9592. the costr of a copyright report is generally $300-400. each. now mind you, these are merely REPORTS. they are NOT opinions as to whether or not a work is subject to copyright protection and they are not guarantees, but they will provide you with essential information, which is PUBLICALLY AVAILABLE, about the author and the history of the copyrighted work that would allow you (or more advisable, your lawyer) to assess the copyright status.

a search of the records of the copyright office should reveal one/some/all of the following(take note, go an perform a search on some popular work, like 'terminator' or whatever, and you will see a very long list of orders appointing receivers, or mortgages and assignments, security loans, and on and on. basically you will see the final and conclusive points as either filed or argued in a court of law as it relates to said works. i am not familier with other countries as i ma with US law, but it is basically the same process/purpose):
COPYRIGHT REPORT
DERIVATIVE WORKS
RECORDED INSTRUMENTS
NEWSPAPER AND TRADE NOTICES

so, if you have found that the work is NOT in the public domain, and if the work is RECENT(lets say your friend wrote something or took a picture of something, or painted something), you will need to get written permission from the creator or holder of the rights. now if the creator/holder has NOT made official filings, which is to say you were not able to locate any records or report, then do NOT assume said creator.holder does not have rights. if you do assume this, you will find yourself in a swarm of bees when you publish your works and the creator/holder finds out, and then claims those are his works/rights, and THEN files for protection. understand? just because he/anyone has not filed, does not mean they are not protected, because in the US the creator is protected from the time the work was CREATED, NOT from the time it was officially FILED with US, or any legal entity. again, this was a crucial change in the law as i have described above.

oral permission is worthless(sadly, it is not typically our memories that create this reality ... it is our GREED. i personally beleive a mans word is his bond, and is the true indication and value of life nad interaction with other life, but in the financial world we live in, the temtations of another mans success makes men do crazy things ... like go back on their word for the sake of money or fame or both). it must be in writting, and it SHOULD be notarized wherein the notary is/was able to verify the true identity of the person assigning the rights. this is usually done by way of an original birth certificate, which is copied for record, or an original passport(which is copied), or in some cases a drivers license or social security card(which i would not recommend, and neither would you lawyer). naturally, any or all of the above mentioned documents or proof of life.ID can and are forged, so the better you are able to prove someone is who they say they are, the better. fingerprints are the best route. however, f you yourself do not confim for certain the fingerprint matches the true identity of the person claiming to be the holder/owner of such rights, you can and will lose in a court of law, and will have to hunt the purpitrator down to recoup damages, as well as convince the district attorney to file charges against this person for illegial impersination. if the real holder files action against you, and you have this propordadly real documentation which was notarized, you will most likely not be found liable. but in either case, you and your works will baically be screwed at this point unles the REAL owner is nice enough to work a deal with you accoridngly, in which cae you might end up paying for the rights twice ... once to the phony, and once ot the real holder, either way, you'll have to pay ... be it with %'s or hard cash. be it $1.00 or $1m.

what i cant stress enough about IP(intelectual property ... not internet protocol , is that you really need to be detailed in securing your rights, and securing them from the true owner/holder, and doing so both on written instrument, and in legal submissions with applicable venues under your governing mandate/protectors. and another thing i cant stress enough is holding(either by creation, or by filing your creation with the USPTO, or your country's applicable filing consortium) and enforcing are two completely differant issues. the place you file your works, like with the USPTO, is only a place that takes your submissions, which are subject to a particular, and specific method of filing, for purposes of proper indexing, classification, and future reference ... as well as being legally acceptable accoriding to the state/local governing venue that may be used as an arena for argument. but the USPTO is NOT the place/people that ENFORCE OR PROTECT your rights. they simply warehouse your records which are used to protect or enforce your rights. the courts are the places that you will need to use to either ENFORCE your rights or DEFEND yourself from another who is enforcing their own rights. this is where the GAME gets costly. the actual filing of copyright, trademark, patent, etc., is a proceedural process that is set in standard protocol, and can be engaged by you, or anyone knowing how to do it. it is not easy, and there are all kinds of legal issues that are involved, which is why an attorney who specializes in such law is the best way to go. but there is no reason you cant perform the initial searches and discovery processes, and once you are to a point wherein you need a lawyer, get one. this lawyer is DIFFERANT then the lawyer that would help you ENFORCE or DEFEND yourself against or for any such rights. the first is an IP lawyer for filings, discovery, research, investigation, etc. the latter is an IP litigation attorney that know how to argue the law, whereas the first knows how to write such articals to be protected by the law. the latter argues for or against your protection/rights under the law based on your legal instruments that are the basis of argument. so that said, the BETTER your agreements are written, the harder they are to find fault in them, meaning anyone taking action against you will have a tough time if your legal advisors drafted your documentation in such a way that literally all areas of potential penitration have been sealed of, and accounted for, and written so that the law will help enforce such terms and conditions/clauses and acts, etc.

in the US, there are only about 10 firms WORTH using in this area of law. the same thing applies to filing patents, there are really only about 10 firms worth using ... and these may or may not be some of the same firms. to use an attorney that deals in civil litigation, who is your friend, is suicidal ... dont use attornies that have not filed at least 50-100 copyrights, and have not worked with at least 25-50 IP litigation attornies to protect such properties. look at their track record. if the firm has both copyright filers and enforcers, ask them all the right questions ... how many has your firm filed? how many have been disputed or litigated? of those, what was the outcome? what was the average enforcement time spent protecting or pursuing? and how many time have you had to rewrite your standard forms? who do you work with at the USPTO, and for how long? and on and on ... this is important stuff, and all t's must be crossed, and all i's must be dotted ... and most importantly ... all t's and i's must be included and written correctly in the first place, because in litigation, you seldom get a second chance to enforce your writes.

ok, i kind of went off in the litigation direction, but i assure you if you are planning on making movie on day and if they involve stories or work that were created by others, the last thing you will want is to be stopped dead in your tracks for such issues as mentioned above. it would literally break your heart, spirit, and soul ... and god know how long it would take for you to rebound from such an event. preventative medicine is the best.


oh ... on a final note ... you can always satire or parody within reason. so if you like a mj song, do what wierd al did ... make his own version of it.

[tim]

Since the USA has the greatest history of copyright piracy in the history of culture, that is no comfort!

The practical situation is this: if you own a unique piece of film, and can prove it, you own the reproduction rights. Whoever shot it, retains the copyright as specified in international copyright treaties (some of which the USA admits to - for US authors, anyway).

[calgodot]

I am not a lawyer, but I was trained, certified, and worked as a paralegal throughtout the 1980s as I completed university and prepared to go to law school. (My work in the legal field convinced me otherwise.) I worked for years with intellectual property claims, and have a great deal of knowledge about the past and current copyright laws. IP law is a passion for me.

Roger is indeed mostly correct. The only area where he may be inaccurate is with the wedding photos example, which as a 'work for hire' would nominally result in the contractor owning the photos and negatives, unless a contract or other agreement stipulated otherwise. This is the only thing I see in his posts that may be inaccurate, and 'work for hire' is hardly relevant to this discussion.

As the web page posted earlier points out (which few responders here actually seem to have read), copyright law with regard to home movies is squishy and ephemeral at best. I don't have access to Lexis at home to check case law, but I don't recall ever even seeing or hearing of an IP case involving home movies. (I did sit in on an interesting divorce once where there were a ton of 'personal home movie recordings' that the parties were fighting over.)

My best guess is that a court would likely determine ownership belongs to the person who shot the film ('author'); barring conclusive determination of the creator (like if more than one person shot it), the owner of the camera and/or film. Clearly the age of the film in question is a factor, as the limit on the copyright term relates to the life of the author. Additionally the subjects filmed may have cause for action - the aforementioned Rolling Stones film would be restricted on the basis of the band member's right of publicity and right to control their image. (As someone else mentioned, the music performed, if there is a sound track, would be protected. And since it was a pub, the person owning the pub might also have some say in the matter, as it presents his/her business, and therefore falls under their right to publicity.)

But wahiba, you're right about one thing: most people in this forum have demonstrated they know little to nothing about the actual law of copyright, not to mention the recent significant changes to the US laws (and then there are the international agreements).

I find this is common among artists. I don't know how many artists with whom I've had this discussion, and almost none of them were aware of, to give just one example, the recent changes in 'fair use.' Artists tend to evince the same attitude toward legal matters as they do business matters: that is, a form of fantastic denial and a reliance on 'common wisdom' (like the reasoning that it's okay to use copyrighted material as long as you don't profit from it - this canard is a widely held misinterpretation of 'fair use' doctrine).

ALL people involved in the creation, acquisition, or distribution of intellectual property would do well to review the current status of US law. They would do even better to have a conversant familiarity with it, especially the terms of ownership, 'public domain' and 'fair use.' If you are lucky, the knowledge will never come in handy (except for the occasions you get to lord it over ignorant artists).

IP law may be about as interesting as learning to do your taxes, but if you are a creator and are ignorant of the laws governing IP, then you are running a risk that is on the level of doing your own books when you are ignorant of accounting. I am personally acquainted with a well-known filmmaker who had several of his earlier films snatched from under him, not because he was ignorant of the law (he was not) but someone with superior knowledge and inferior ethics managed to manipulate the system and acquire ownership of the copyright. The filmmaker now profits nothing from the sale of those films, and has no control over how they are distributed. I recently sat with him through the viewing of one of these on a newly released DVD: the transfer was horrid, the sound was awful, and the packaging was a mess. And there is nothing he can do - though to his credit he does not let this bother him; he's moved on, as they say.

There is no excuse for a creator to be ignorant of IP law. Numerous web pages can educate you beyond your desire to know. Begin with the EFF (http://www.eff.org) and their section on IP/copyright. Keep an eye on Lawrence Lessig (http://www.lessig.org), the lead attorney in Eldred v. Ashcroft and one of our brightest lights on IP (my hero!). There are also seminars and courses in nearly every city that has a community college. Some online copyright forums do have IP lawyers who can comment and advise.

It is not easy, but nothing important is ever easy. Is it?

[ericMartinJarvies]

another interesting fact some people may or may not be aware of; a TITLE is not copyrightable. titles do not contain enough suffucuent author content, and are therefore not eligable for copyright. in thi case, you would need to file a trademark.

although it is NOT required you publish your copyright, and you are protected under the law just the same, it is none the less advisable to publish such copyrights so that you have a PUBLIC LOCATION TO POST YOUR CHAIN OF TITLE. using what is known a 'form PA,'
for example:

-initial registration
-notice of transfer(s)
-notice of lein(s)
-notice of claim(s)

a couple weeks back, someone on this forum had mentioned he wrote a little story and wanted to know if anyone would be interested in filming it. using this a a very basic example, you would want the author to sign a 'short-form option' and send it to the copyright office to be recorded. go to http://www.loc.gov/copyright/ to learn how. because everything that is registered with the copyright office become public, it is best to use a 'short form option' so that you do not end up disclosing any confidential terms of the agreement, like the purchase price for example. the long form is the contract that both of you sign, and most likely use in the event of litigation, wherein such private issues and deal points would no doubt be what is argued. but there is no point listing all of that stuff in a public place, being the copyright office/site/repository.

there are a number of inde film books in publication that may or may not have standard form agreements that you can copy and use, or perhaps online there are some. it might even be a good idea for andreas to make a section on his site that deals with the legal issues involved with making a movie, and it could contain .doc or .rtf ir .txt contract templates for anyone to d/l, edit and use for themselves. i think one of the most important ones would be the option/purchase agreement. such a contact should be in long form and short form. long form being the one you privatly hold and use in case of litigation. and the short form being the one you file with the copyright office. such an agreement would include, but is certainly not limited to;

the option itself:
payment.
period.
first extension of option.
second extension of option.
further option extension.
perproduction activities.
rights frozen.

compensation:
exercise/purchase price.
contingent compensation

subsequent productions:

credit:

rights:

confidential:

representations and indemnities:

miscellaneous:
(things the seller gives you)
no partnership/no obligation to produce
further instruments
termination rights
payments/notices
limitation on remidies
successors and assigns
(things you give the seller)
reversion
E&O(errors and ommissions
video/dvd/cd rom/internet
premiere
entire understanding


on top of this, you should have a seperate document that is known as a 'publisher's release' and is basically a one page declaration indicating such.

and, on top of the aforementioned long form, you should then draft the one page 'short' form' which wil lbe registered with the copyright office.

all of which SHOULD and really MUST be NOTARIZED!!! and thereafter, you can then writesimple one page documents such as 'short form assignments' or 'life rights assignments' or if you are not satisfied with the story/property you have just purchased, you can write a completely new document called a 'writter agreement.' this, like all of hte above, would each be notarized, and registered with the copyright office. if you writer is currently helping you make revisions, treatments, etc., write up a 'certificate of engagement' prior to penciling out a detailed 'writeer agreement' so at least you are not left exposed .. .because if you are sharing ideas with someone, or worse, if they are sharing ideas with you, and you use those ideas, that person has lawful claim(naturally, proving it is a whole differant issue, but why chance it?).

this is basically what anyone one will need in order to advance to the next step of production. if you are going to pitch the story to a studio, or to private investors, or if you are going to have a public offering(like a SCOR, or PPM), then all of this will need to be taken care of, because the first thing any studio, or well rounded investor will do is have their attorney perform an ownership search as mentioned in my last post. and if all of the above mentioned steps in the rights precurement process show up on the search, you will IMMEDIATLY be given the credibility and respect you deserve from such people, be they executives at studios, or of corporations, or those reading your disclosure statement on you private placement memorandim.

if the stakes are high, make sure YOU understand the process and are involved every step of the way, and use the best attorney you can afford. if the stakes are not high, and this is a dry run, or something really insignificant, do it yourself and learn from the experience. because when it comes time to making your deal, you do not want the other side(people you are hitting up for money) controlling the situation because they and ther atornies know more. you need to know as much as possible, and when negotiating the deal points, you can do this yourself. when it comes time to AGREE on the deal points, make sure your lawyer has checked each point agaisnt the law and given you sound advise. this way, you only pay for your atorney when you absolutely need him. if you pay him to negotiate on your behalf, then the bill will get really expensive.

you question was regarding using old videos or footage. hopefully all of our answers gave you insight as to what you can expect and what you should do with regards to using any old footage, or ANY footage. i think the more important question to ask, or perhaps the next logicol questions to ask considering you understand the aforementioned, is do you beleive the project you intend to work on, which may include other people's property, to be a project that will be successful, or has a chance of being successful? because if it does, and if generates modest income, or a shit ton of cash, you can be CERTAIN people that feel they had a part in it will step into the mix and attempt to collect their share. they will usually do so by first telling you, or asking you. and if you are not able to come to terms, then they will no doubt file. and then the people you had used to finance, distribute, etc. the venture, they will now be exposed to loss, and then you will hear from their lawyers. now you will have them coming at you on both ends, and that is no fun as i am sure you could imagine.

[MovieStuff]

Roger is indeed mostly correct. The only area where he may be inaccurate is with the wedding photos example, which as a 'work for hire' would nominally result in the contractor owning the photos and negatives, unless a contract or other agreement stipulated otherwise.

Hi, Cal!

Actually, I am correct regarding the wedding photo issue (we've done way too many over the years). Your own assumption about propriety of the copyright only illustrates the misconception of the number one copyright issue most people overlook when they hire a wedding photographer or any photographer or artist, actually. Just so you'll know, here's a link to our photography website.

http://www.afterimagephoto.tv

My wife and I have been professional photographers for years and have dealt with every copyright issue imaginable. It may be "work for hire" but the photographer always maintains the copyright and that copyright (and the negatives) can be purchased under a separate agreement. The only way that the client gets the copyright as part of the deal is if there is a written agreement up front.

Actually, this works out better for everyone because the copyright buyout fee is generally too high for most people to afford and owning the copyright is of little value, really, for the average person that wants a portrait or wedding photo taken. And maintaining the copyright allows the photographer to control how the images are seen by the public, which is very important in protecting their reputation. Hiring a photographer is no different than commissioning a painter. The artist maintains the copyright unless there is an agreement otherwise. The only real difference is if a photographer or artists is hired by a magazine or publication as a staff position and the terms of employment is that all works become copyright of the publication.

Roger

[jumar]

A good example for your question were the famous home videos stolen from Pam and Tommy Lee. The company (IEG I think) started selling reproductions, and it wasn't until the Lees threatened big time that they came to an agreement. Even then, it was an "agreement" rather than a total callback of the product.

So I think it's definitely not allowed by law, but chances are if you were using the footage in the right context, and in a relatively non-profit venture, no one would bother coming after you.

I recently bought 7 hours of someone's Hi8 memories for $2. When I get some time, I'm going to edit it into a dramatic short (transplanting audio and video into something unrelated to the original). I would say this is definitely an example of something that is not allowed by law, but I don't plan on publicly showing it.

[Cine_Monkey]

HEY GUYS!!! sorry i havnt been about for a while! WAht a cool thread!!!

Oh Movie stuff and calgodot have pretty much sewn up this thread, even before i arrived!!! he he he

Im not qualified or anything but i have studied intellectual property law for my degree and rogers correct, the photographer own copy right of all work , unless he sells that copyriht to he person hiring the work / photographer.

This is a real interesting thread, but i really HATE it when so many people 'think they know law' and pretend to know what thre talking about even tho its actually just what they THINK shoul dhappen with a particular case.

[Angus]

Again, not always true. Most cities now require filming permits if you plan on being in any one spot for a given length of time.

I was talking specifically about the UK, sorry for any confusion. Here one may photograph or film anything in public - though of course if you cause a nuisance (planting your tripod in the middle of Oxford St for example) you can be moved on.

[Angus]

Well, there is one thing I have learnt. No one here really has a clue.

Well, that is incorrect. I can guarantee you that the information I've provided is dead on.

And I can back you up, Roger.

I have a friend who works in the porn industry (of all places!) and she and I have often discussed legal aspects of publishing photos, films, videos.

Obviously my friend has taken plenty of legal advice.

[MovieStuff]

i really HATE it when so many people 'think they know law' and pretend to know what thre talking about even tho its actually just what they THINK shoul dhappen with a particular case.

Ha, ha! That happens here regarding film all the time!

[wahiba]

I stand corrected, but I suspect that if one has legally bought someones home movies, in good faith, then it would be presumed that this included all rights etc. etc.

This, in the UK at least, would be considered a contract, which does not have to be in writing. So unless anyone along the line said something different then the contract would be assumed for the physical film, and all rights.

If this was not the case, why do all the software companies go to such lengths make sure one understands you are not actually buying the software, only the right to use it :?: