Payment When Pulling Stills From A Work For Hire Video Shoot?

- - The Future, Working

A reader asks:

I’ve had a strange situation crop up. I went to your blog to find guidance but the closest I could find was this article on the breakdown of fees for shooting video vs. stills:

http://www.aphotoeditor.com/2011/06/09/ask-anything-how-do-you-estimate-video-with-stills/

In this particular case, I’ve been hired by an ad agency to shoot stills for an annual review, and video for a mini-doc – shot concurrently. So far I followed the structure from the article above – having consulted a few different producers and agents (all of whom are doing their best guesswork since this stills-and-video space is so new). Video was work for hire, and the stills I shot required fees for their use in the review and elsewhere. But here’s the new snag: the client wants to take the annual review in a different direction and fill a portion of the review with stills we’ve pulled straight from the 5D video footage.

The question now is, am I able to charge usage on those frame grabs as well? My thought is yes; If you’re hired to shoot stills and video and decide to shoot it all on the epic and pull your stills from the footage, then those stills require their own usage fees. Though the client is suggesting differently.

It seems with better and better technology and the ability to shoot entire photo jobs with 90fps video bursts, usage would have to defined by their use and not by their method of capture.

I reached out to Vincent Laforet to see what he thought. Here’s his response:

Unless he specified it FIRST in his contract that no stills could be grabbed from video without further compensation, and a detail of how that would be dealt with – the client can grab as many frames from the video as they desire, because that video is WORK FOR HIRE.

Happened to me once and it will never happen again. That’s going to be in all of my contracts from now on.

There Are 10 Comments On This Article.

  1. c.d.embrey

    Welcome to the reel world. If you want to be a cinematographer, you’ll need to learn a new way of thinking. You may also want to join the Assoc. of Independent Commercial Producers http://www.aicp.com/

    No need for 90fps, the technology was good enough, in the 1980s, to pull a still from one field of 60i NTSC. There were several companies, in Los Angeles, who provided this service. I’ve also made photos from 16mm 7247 Kodak negative. Nothing new here.

    I don’t think Mr Laforet’s idea is really the answer. It may work for the a few at the top, but there are way too many people with 5D s for it to work at the bottom.

  2. Dr. Elliot McGucken

    You should offer to shoot stills & video for both projects at the same time, using a method like the NYT has been using or the 9shooter–here the two methods for shooting stills & video @ the same time are compared: http://blog.9shooter.com/2011/07/top-10-reasons-why-9shooter-bracket-is.html

    That way you can use video and stills from both projects. And remember, you can always shoot video from both cameras simultaneously, giving you two different fields of view/textures/depths of field for some cool cuts.

  3. With a work made for hire, the client/producer is considered the author and therefore owns the copyright. This ownership allows them do do whatever they want with the footage. The existence of another contract for stills that covers the same subject matter, however, does complicate the question. I’m guessing this is a cutting edge copyright question that only a lawyer with specific knowledge in this area would be able to answer.

  4. Ok, I’ll take a stab at this. The Still/Vid combo is still evolving. Laforet can call the shots because of his chops, but the reality is two worlds are colliding and the video world usage standard is the most appealing, and why not, from a cost perspective.

    Why not collaborate with a video shooter and add value to yourself by being a producer? Create the concept and deliver the package. Doesn’t it make more sense to shift your energy to something you do well? Buyers always look for the best value for their clients. They’re not gaming the “system”. Still photographers are charging into this without considering the consequences. I’ll always hire what I can’t handle. I don’t see camera manufacturers adding high res still capability to video ( yes, I know I’ll get crap for that last line, but I hope you get the point).

  5. Vincent’s on the right track – even if Work for Hire is the norm in the film world, if there’s nothing in writing specifying it as such, then the copyright remains with the original author. This is also the case in the music world – a producer must get performance licenses from each and every musician on an album in order to hold the copyright to the whole work without having to pay royalties.

    My take on it would be to specify in a contract that the client has a worldwide, perpetual license to use the video in any medium as an audiovisual work. US copyright law differentiates between “audiovisual” and “pictoral” works:

    ‘“Audiovisual works” are works that consist of a series of related images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied.’

    ‘“Pictorial, graphic, and sculptural works” include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans.’

    http://www.copyright.gov/title17/92chap1.html

    Yet another example of why it’s a good idea to never, ever give a client “Work for Hire” – you have no control over how they use the work if you’re no longer the legal author.

  6. Donnor Party

    Here goes: The work for hire was a documentary, the stills for the report were for a report. You can argue that you took the job based on the fees you would have earned from the corporate report. Had you known that they would materially alter the job, which is what they did, you would have charged more for the video. There are issues of fairness or equity here that go toward sthe shooter being compensated, if not the full freight for the usage of the frame grabs at least a larger fee for producing the documentary.

    In my mind you you have some good arguments that they breached the contract by materially changing the project, which you relied upon in taking the job. If the contract can be nullified you may still own the copyright in the doc.

    That being said, this is something you can probably work out with the client. Only an asshole would sue. If you are not a prick and you have a relationship with the client, I’m sure you can get some additional compensation. Good liuck with this!

    • Donnor Party

      What I meant by “only an asshole would sue”, is that, unless the loss on the usage for the report was huge, you would be much better off negotiating a settlement with the client. If you have a good relationship with the client you can at least get something and keep the client, while changing your contracts to reflect the usage of frame grabs.