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Legal Eagle

Copyright

Q: Pictures - who owns videos?

After having paid a video promotion company to film footage for a television documentary, are we correct to assume that we retain the copyright of the aforementioned footage? The script was written by our company and the footage paid for, in full, by ourselves. Yet the video company claims it owns the copyright.

A: Under English law, copyright is divisible so that different aspects of copyright protection may be owned by different parties in different media. Since the script was written by your company then your company will be the first owner of the copyright in it. However, the first owners of copyright in the film itself, as distinct from its subject matter, are the producer and the principal director of the film as such. The mere fact that you may have commissioned and paid the film company to make the film, whether for a television documentary or anything else, does not in itself mean that you own the copyright in the film unless, of course, it was otherwise agreed in your contract with the film company in which you gave it permission to make the film.

It could not have made it without your co-operation and consent, and there will almost certainly have been a written contract between you and it relating to the making of the film. It would be surprising if that contract does not address the question of ownership of copyright in the film and you should look at it carefully to see what it says. After all, you should bear in mind that, even if the film were of your own, live, stage performance, there is considerable skill involved in the making of the film itself in terms of camera angles, close-ups, zoom-ins and so forth. The soundtrack of the film, incidentally, is treated as part of the film itself but you should be aware that copyright does not subsist in a sound recording or film to the extent that it is a copy taken from a previous sound recording or film. For present purposes 'film' includes videogram.

Everything depends on the terms of your contract with the film company, so far as the nature and extent of copyright interests is concerned. Usually such contracts are lengthy and complex. If you are in any doubt about the matter you should seek legal advice to ensure that you interpret the contractual terms correctly, both as to their nature and their effect. Not only is copyright divisible but it can be assigned and licensed, subject to conditions. Any licence may be exclusive or non-exclusive, conditional in any or all media.

In the United States there is a 'work for hire' doctrine in relation to commissioned works which, where it applies, results in copyright being automatically vested by law in the commissioning party, but that is not the case under English law unless expressly otherwise agreed. If the video company does own copyright in the film, as may well be the case here, that is not such a dreadful thing for you to live with because, as I have said, it only relates to the 'master' of the film as such, and not to underlying subject matter of the film or any other film. Furthermore, what it can do with the film and for how long and what it must pay you for its exploitation are all matters which I would expect to be regulated in your contract with it.

For the sake of completeness, there is just one qualification I should make to what I have said, namely that if you had commissioned the film 'for private and domestic purposes' and not, as you say, for a television documentary, you would have had the moral right not to have the film released for public exhibition or broadcast without your consent.

First published December 1998