This cautionary BTSV story was submitted by a reader:
On a recent national advertising shoot we used our back-up camera, my new 5D MKII, to shoot some behind-the-scenes footage of me at work. We edited it down into a 3-minute video that we posted on my Facebook Group page. It wasn’t particularly exciting, but it did the job of showing me directing models and assistants. About 4 weeks after posting it, the ad agency I worked with called outraged, demanding all the fees and expenses back from the shoot, and then threatened to sue me.
At first we weren’t sure what we did wrong–we put it up well after the campaign had come out and after the agency gave us the go ahead to use shoot images for self-promotion. We had retained copyright and owned all the images. We didn’t show any video of the agency or client discussing strategy or anything like that. Although I did not announce that we were shooting video footage, the assistant who was shooting walked around in full view of everyone on the set, with a camera quite close to most people on the set. He shot quite a lot and it is evident that the AB and AD at least knew we were shooting stills.
The agency claimed that we violated the Confidentiality Clause of the Purchase Order because the entire shoot was secret, that they did not know I was shooting video and that I had no right to shoot video. We disagree with all of this, but we took the video down. Even after we took it down, they kept demanding the money back, and we spent weeks going back and forth with lawyers. Eventually they just dropped it, presumably because they knew they had no case. We think what happened was that the client found it on YouTube since we had included their name in the title, and was upset at the agency failing to control their brand. The agency was trying to make amends, and wanted to use us a sacrifice.
We were at first concerned when they argued that we didn’t “have the right” to shoot video. In other words, was it our shoot and set or theirs? In our view, a client does not own a set unless the agreement is work-for-hire. In this case, we were the production company, we hired everyone else, we rented the location, we carried the insurance (i.e. it was our production). No one could tell us what we could and could not shoot on our set.
We also amended the P.O. to give us copyright to “All images created as part of the shoot” and the right to use them for self-promotion.Tip: Always ensure in writing that you retain rights to all “Images” with an “s” or better yet, put “All images, whether moving or still.”
We left their Confidentiality Clause intact, but as it was written, it did not make the shoot itself confidential – just trade secrets and the like. The shoot itself was our work product, not theirs, and its mere existence wasn’t a secret. Tip: Just because the agency says you violated the contract, doesn’t mean you did.
However, in the future I do think it is a great idea to talk to the A.B. about behind-the-scenes video and whether it is OK with them if you shoot it and if you can use it for self promotion on your website. You may have the right to shoot it and post it, but if a jittery client doesn’t like what they see, you may lose a client and any relationship you had with the agency.