So you have this great idea for a film. You gather some actors and crew and go about having some fun filming your movie. Your camera person takes the files to their studio, and under your direction, edits the film and hands you over a finished, edited movie on an MP4 file (or Quicktime, or DVD or some other medium). You then take the film and upload it to your website or a video hosting site. The film is an overnight success and begins making money from sales, sponsors, online hits, or some other means.
But wait. Now your camera and video crew come back to you and want to be paid or have your film shut down. You claim it was a work for hire because you wrote it, directed it and asked them to shoot and edit on an oral promise of deferred payment.
Who owns the finished film? If you guessed you do, under the conditions outlined above, you’re wrong. According to copyright law, the person who created the tangible work is the legal copyright owner. Why would that be the case, even though you wrote the script? Because the crew created the tangible work. Now you say, work-for-hire allows me ownership of the crew’s work. Well, you might be right, if – and it’s a big if here – you followed the legal procedure of work-for-hire. And this is where things get sticky.
Let’s analyze a real life situation going on right now.
Last summer, a lawyer came to me with his idea for a TV show. At that point, I explained all the work I do will be for hire, and not volunteer work as is done quite often in areas where film production isn’t a big business. While others on the project did volunteer their time, I was not one of them. The client agreed, but told me the payment would be deferred until such videos were finished and usable for his fund raising. In his eyes, this was a work-for-hire.
After providing the client with my videos for preview, he made a few revisions and then asked me to post them using my Youtube account and link the videos to his web site. He loved my work and praised me for it. On January 1, 2015, he brought the website live on line to the public, thus completing our oral agreement (he refused to sign a contract). At that point, payment was due.
I sent my client an invoice for my time. Because I knew the man, I billed him for at a quarter of my normal day rate, a very fair amount considering we shot three days and edited an average of four hours a day for 44 days. But instead of a check, I received a written rant about how lousy my work was, that my invoice was illegal, and he wasn’t paying me a dime. He accused me of being mentally deranged and unstable, in addition to some other unflattering but false characteristics. And he did that in writing.
I took down my Youtube links from his website. I informed him these were my copyrighted works and he had no right to use the videos until they were paid for. A few days later, he took his preview copies and posted them back up on his web site. I had them removed again, citing copyright infringement. He put them up a third time, this time on his own Youtube account. I contacted Youtube and had them removed. Again, he had them put back up.
Now you may be saying, “but you allowed the client to take the videos.” Yes, and Amazon allowed you to buy a DVD of your favorite film. Just because you own a copy of a movie on disc does not allow you the right to post it on Youtube for commercial (or even non-commercial) use. Copyright law is very clear about that. Possession of a copy of the physical medium does not give you any rights other than your own viewing in the privacy of your own home. No posting, no copying, no sharing, none of that. Otherwise, I could buy a DVD of all my favorite movies, copy them and make money from selling or posting them without ever having the expense of creating anything. Copyright law was created to prevent people from doing just that.
At what point does someone justify ordering months of work and then not paying for it? Well, my former client stated we had an oral contract for a work-for-hire arrangement, and in addition, also claimed he owned the work. So, let’s go back to the client’s purported justification of ‘work-for-hire’ to see if it’s valid.
Work – In this case, ‘work’ is the videos I made for the client.
For-Hire – ‘Hire’ means getting paid. Until there is payment, there is no hire.
Typically, work for hire assumes the worker is an employee who is paid on a regular basis to perform work for the company. As an example, a staff animator at Industrial Light and Magic automatically transfers their copyright to the ILM company upon acceptance of regular employment. But a vendor, such as a person who owns their own company and shoots a project for hire by a third party, falls under a different set of circumstances than an employee.
Below are some excerpts from the government website. Specifically, in the paragraph about vendors (below), notice the word, AND before the (b). It is this one word that protects the rights of the vendor shooting and editing the video from losing their rights just because they did the work under the direction of someone else. It is this one word that is often overlooked, leading the writer/director into falsely believing that the film they wrote and directed belongs solely to them.
Section 101 of the Copyright Act (title 17 of the U.S. Code) defines a ‘work made for hire’ in two parts:
(1) – A work prepared by an employee within the scope of his or her employment
(2) – A work specially ordered or commissioned for use
1 as a contribution to a collective work,
2 as a part of a motion picture or other audiovisual work,
3 as a translation,
4 as a supplementary work,
5 as a compilation,
6 as an instructional text,
7 as a test,
8 as answer material for a test, or
9 as an atlas,
if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.
A work created by an independent contractor can be a work made for hire only if
(a) it falls within one of the nine categories of works listed in part 2 above AND
(b) there is a written agreement between parties specifying that the work is a work made for hire.
Again, notice in the above legal descriptions, the difference between work performed by an employee of a company and work performed by a vendor or independent contractor.
Besides work for hire, the only other way to legally transfer copyright is to sign your rights away. This must be in writing, according to the law. Oral contracts are legal in some cases, but copyright is an exception and can not be transferred orally. Woodie didn’t want to sign a contract, probably believing no one would challenge an attorney. So his argument of an oral contract is moot. Unless the client pays me, or convinces me by some other legal means to sign over my rights, the client does not own my copyrights.
What all of this alludes to is this. If you write and direct a film, only the script belongs to you. Unless you have a written contract of copyright assignment or a work-for-hire agreement specifying release of copyright to you prior to payment, then the finished movie belongs to the camera and editing crew.
Most major films belong to the production company, not the writer. Companies like Disney or Paramount Pictures will secure all rights of ownership to everything long before they shoot the first scene.
How can you avoid this legal quagmire? Have a written contract with every actor and crew member before you begin working on a project. Unless, of course, you see this as a hobby and don’t care that someone else will make money from your work and may never share the proceeds with you.
If you want to learn more about copyright law or verify anything in this article, please Google ‘copyright’ to obtain the government website and then type in ‘work for hire’ in the search box. You’ll come up with everything you need to know your rights as a filmmaker.