Is my videography client trying to take the footage, and all the credit too?

Freelancer’s Question: This is a bit of an odd one to solve I suspect, but what should I do or what are my legal rights, if a client requests that a self-employed freelancer who supplies them should write the following into their invoice?

Freelancers’ Questions: Is my videography client trying to take all the footage, and all the credit too?

"I hereby grant and authorise ….(Client's name), the exclusive right to take, edit, alter, copy, exhibit, publish, distribute and make use of any and all video taken of me to be used in and/or for any lawful purpose. I waive any right to royalties or other compensation arising or related to the use of the video."

Does this mean I am giving away all the rights on the footage I shot for the client? Can I still use the images for me and /or in other projects? Or use as stock footage and sell on to others? Also, does this statement hold any legal value, given that they’re asking for it to be included in my invoice, not in any contract?

For your background, in the invoice, I just state that he – the client - is paying for videography services, but I do not list any images, locations or dates. If what he’s asking me to write in the invoice does have any legal value, I wonder if using the images for my own purposes, such as selling the images to stock footage websites, would still be permitted? I ask this because the client pays very well but seems to be willing to take all the credit, and all the rights for the footage too! Any help would be massively welcome. Thank you in advance.

Expert’s Answer: First of all, we need to distinguish whether this waiver is in respect of images of you, which would constitute a personal image rights waiver, or whether it is in respect of images taken by you, in which case this would be a rights waiver in relation to the video content that you are creating and providing to your client.

If this is a personal image rights waiver, i.e. images and videos of you, and you are happy to agree to this, we would recommend asking your client to update their proposed wording by adding a sentence stating that:

Any such use of images or videos shall not bring the individual (you) or their reputation into disrepute.”

Waiver phrases you can go back with (continued)

This should be set out in a separate document from the invoice and signed by both you and your client – and entitled “Images Rights Waiver.

If this waiver is in relation to the video content that you have created for this client, then the wording of the phrase needs to be updated to state, “taken by me”. In this case, the clause means that you would assign all your rights in the video footage (as creator of the content) to your client – which is essentially equivalent to you signing over the copyright (the right in the intellectual property) of the video footage.

As the clause states “the exclusive right”, this means you will not be able to use the content again for your own purposes, or in any other context, including the examples you have listed in your question. Therefore, we would recommend thinking twice before agreeing to this. Ask yourself some key questions to see if you agree with our recommendation. For example, do you want to use the video footage again for your own purposes? Can the footage be edited and reused for other clients? How important is this client, or the video footage, to you? Do you see a long-term or profitable future with this client which means you could justify transferring the copyright to them?

Difficult for it to be binding but not impossible, so beware

Furthermore, as you imply in your question, it is not the appropriate forum to include such wording on an invoice! You are correct in questioning the legal validity of including such a provision on an invoice as it is not countersigned, and therefore it would be difficult to say that this is a contractual term.

However, there is still a risk that the wording could be contractually binding regardless of whether you have signed it. This will depend on what else you and your client have agreed in a separate contract or document or even by email.

For example, some contracts include a clause that states that the parties will not be bound by anything that is not written in the contract. Furthermore, it will be important to look at your existing contracts and exchanges with the client to see whether such rights have already been assigned to the client (e.g. in a freelance contract or services agreement). Clauses in relation to the assignment of rights are often included in such contracts as commissioned works, produced by a freelancer like yourself, are not automatically owned by the client – they need to be transferred. For comparison, if an employee was to create work, it is automatically owned by the employer (save for a few exceptions).

Five fundamentas you ought to cover

If such wording has not already been included in an agreement between you and your client or has not been agreed in an email - and if you do want to agree to the provision provided by your client, we would recommend that you and your client enter into a separate agreement governing this. This separate agreement is important as certain things need to be clear before you agree to this clause.

These things include:

  1. Properly identifying the video footage (content, length, purpose, and any other specifications given by your client);
  2. Properly defining the applicable Intellectual Property Rights (IPR) (– most likely copyright);
  3. Choosing between (a) transferring full ownership of the IPR to the client, which is what your client is currently asking for (an ‘assignment’); or (b) granting your client a ‘licence’ to use the video footage, which will mean that you remain the owner of the IPR in the videos, but your client has the right to fully use the footage as they wish (and according to any conditions you place on them in the agreement);
  4. Given that you want to retain use of the video footage for your own purposes, such as stock footage, it would be best to grant a ‘non-exclusive licence,’ as this would allow you to continue using the footage – in this case, you will need to agree on how long the licence should be granted for (how long is your client allowed to use the footage?), where the client may use the footage (in the UK or on a worldwide basis?) and whether your client has any rights to sublicence (is your client allowed to grant another third-party use of the video footage? If yes, should this be done with your prior consent or not?);
  5. Ensure that any transfer of ownership, or granting of a licence to use the video footage depends strictly on the freelancer (you) receiving payment of all sums due in respect of the work (this way, you can ensure that you retain control of your work in cases where your client refuses to pay invoices); and

Taking your credit = taking the Mick!

Finally – there’s something else to factor-in. You mention that you are concerned about your client ‘taking credit’ for your work. Luckily, in copyright law, there are ‘moral rights which would give you the right to be identified as the author of the videos and therefore get recognition for your work.

Under English law, these moral rights can be waived in a contract. But as you want to retain credit for the work, we would recommend expressly stating that you do not waive these moral rights and that you retain the right to be credited as an author on all copies and distributions of the video footage.

As you can see, there’s quite a lot to consider here! So do put a legal specialist in the picture if this all feels a lot for you and your freelance videography business to handle alone. For now though, we hope this guidance goes some way to helping you make an informed decision.

The expert was Komal Shemar, legal consultant at Gerrish Legal, a law firm specialising in commercial law for freelancers and the self-employed.

                             

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