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class="style8" School Ownership Of Work

>Published : 9th january 2005

Ched doth quoth :

>>Also, the school claims ownership of your projects.

>Jeff doth quoth :

>>I had always thought this was normal? Are there some schools that >don't claim ownership?

>Not sure about the US situation at all (I'm Australia), but student ownership of their films is a pet interest of mine. More than a pet interest, actually, its something which makes me very angry. So much so, that I'm going to be writing a proper (refereed) article on the issue in the new year.

>There are a number of 'FTV' (film and television) departments which claim ownership in Australia. The media department I did my first degree in certainly tried. However, merely claiming ownership doesn't mean you *HAVE* ownership. That’s a matter of law and not of the opinions of those within the department. In short, I think the legal position (in Australia) is that students own the copyright in their work with the onus on the Department to prove otherwise.... and that is a tough case to prove.

>Most 'film schools' think that giving you equipment equates to owning copyright... but I have no idea why they think this is so. You pay to go to school to learn to make film; to satisfy that contract, the film department (as an agent of the School) provides you with equipment. The provision of the equipment the department does not create a new contract - instead, it is part of the valuable consideration of the former contract. A similar analogy would be a rental house. You go to a rental house, give them money, they give you camera. They can't claim that giving you the camera gives them ownership because its satisfying the contract-for-hire rather than creating a new contract-for-owning-a-film. We would never accept it if a rental house claimed copyright, so why should we if they provide equipment? If I let you use my account at a rental house to get discounts on gear, why should I get copyright?

>Worth noting that none of the Universities, a few require students to sign anything to assign away their copyright. This isn't the case at VCA or AFTRS. If in doubt, get people to sign.

>However, I'm not that familiar with the US position. I understand you have work-for-hire (which we don't). The leading case on this is Community for Creative Non-Violence vs Reid (1989), which consider the issue in some depth. This is all is all quite a complex legal area for a non-American solicitor. but it seems the issue will turn on whether students are employees (under the Common Law of Agency) - which would be hard to argue, IMHO as students pay to attend School... so if they are receiving the benefit of the schools equipment etc., then that's because they paid for it, not because they are agents of the School. The court in the previously mentioned case also suggested that other factors including 'control by employer over the employee' and 'status and conduct of the employer' need to be weighed in, but they held that "supervision or control over creation of the work alone is not controlling"

>I've heard that the NLRB (SP>) held that grad students were employees in this definition.
(see http://www.keytlaw.com/Copyrights/wfhire.htm ).

>If they're not employees, then you NEED a written agreement under CCNV v R.

>Given the doubt surrounding the undergrad-as-employee then the real issue is whether something was -signed-. The only way to guarantee that an 'Employer' owns copyright is to have a contract. So, anyone with experience at those US Films schools which claim IP know whether you have to explicitly sign something? Or they merely tell you when you enrol that they own the IP.

>My advice (after all that), would be simply to talk to a solicitor if
you really care and/or interested. I wouldn't ask a lawyer advice on how to make a film, so why should I ask the advice of a film school lecturer advice on the law?

Stu Willis, LLB (Hons). <-- he he he.
Director + Editor
Sydney, Australia

www.biki.net



Stu Willis wrote :

class="style9">>Most 'film schools' think that giving you equipment equates to owning >copyright...but I have no idea why they think this is so.

>Where I am studying graduate courses, - NYIT - there is a small paragraph that discusses JOINT ownership of the work. I'm not actually concerned.

>Now a couple of points, although I'm not a lawyer, I believe if you accept a contract that the school merely says they have ownership, then you accept those terms.

>Secondly and more importantly.

>I think the "ownership" issue has much less to do with the equipment, and more to do with the instruction. You go to a school for instruction, so your work is therefore considered a product of that ongoing instruction. Of course one needs to look to how other art departments in the same college handle ownership. For example, does an art student who sells a sculpture they made for class need to gain permission, or split the money with the school?

>In any case, if you go to school merely to use the equipment, then you are wasting your time and money.

Steven Gladstone
New York Based D.P.
www.gladstonefilms.com
East Coast CML List administrator



>I believe if you accept a contract that the school merely says they have >ownership, then you accept those terms.

>Prima facie, yes. But there is such a thing as onerous terms in contract; onerous terms will not be enforced by a court unless there has been sufficient disclosure PRIOR to the signing of the contract. Even then, equity may not enforce such terms because they were made under coercion or lacking good faith.

>Do you think ANY student would willingly sign away their intellectual property in their school work if the school actually let them negotiate it? I find it difficult to understand why schools even want IP over student work beyond a 'power' thing.

class="style9">>I think the "ownership" issue has much less to do with the equipment, >and more to do with the instruction. You go to a school for instruction, >so your work is therefore considered a product of that ongoing >instruction.

>But why should instruction give someone ownership over a creative work? They didn't MAKE the work, the student did. If you pay me to teach you how to build a house but you do the actual building, should it be me or you that owns the house? (Of course, physical property and intellectual property are akin in name only - IP isn't actually property - but I think the 'fairness' issue still stands).

>In Australia, instruction certainly doesn't have any impact on IP. Authors/Makers own copyright unless that has been modified by an agreement (one with 'valuable consideration' a term which has a lot of discussion in contract jurisprudence).

>In America, you have work-for-hire. There may be an argument that doing work as part of on-going Instruction (as you put it) qualifies as work-for-hire. Certainly more so than mere provisions of equipment. As the court case I mentioned earlier implied, the elements which constitute an implied work-for-hire need to exist in plural. However, I'm not sure if there has been any definitive decision on the issue of students as employees; although, I have heard that Graduate students [only] have been considered 'employees' in this sense.

>Stu Willis
Director + Editor
Sydney, Australia


>I thought that in Australia and even Canada, whoever commissions the work, owns the copyright?

>I think this is the case for still images, not sure about motion picture.

>Jim Anderson



>But why should instruction give someone ownership over a creative >work? They didn't MAKE the work, the student did.

>I think this sort of argument seriously undervalues the function of a film school (or any type of educational operation for that matter). If you could have made the same film without the benefit of being at film school, then you've wasted your money (and the school's time) in signing up.

>Clearly there is some form of transaction whereby some of the IP should be attributed to the school.

Dominic Case
Atlab Australia


>Dominic writes:

class="style9">>If you could have made the same film without the benefit of being at film >school, then you've wasted your money (and the school's time) in >signing up.

>I think that this presumes that the point of going to film school is to make a film, which I suppose is true for some people. But the primary purpose of a school is for education. You LEARN how to make a film in film school, and that's what you are paying for. SO, if Dominic's point is true, and the school can take ownership of a film you make during the learning process, why can't they take ownership of a film you make after you've graduated?

>Do schools claim ownership of other forms of artwork? What about other kinds of "deliverables" required for completion of a degree, such as research? I imagine that the waters get much murkier at the graduate level where students seem to become employees at some level.

>Chris Freilich
Cinematographer/Gaffer
Princeton, NJ
http://www.virtuosofilms.com



How does this equate to other fields? Many research projects that occur at universities become the property of the institution should any bear fruit. Do some hard science and come up with a new compound and the school owns at least some of the patent. This is often true not just for specifically funded work of a tenured professor, but by student work as well, AS LONG AS IT OCCURS AS A SUPERVISED PROCESS UNDER A PROFESSOR'S TUTELAGE.

>That's where the ownership issue generally kicks in, because it was under the auspices and specific conditions of the institution. On the other hand, should someone choose to write a book while at school as either student or faculty, the institute has no claim on that book. The person could even use the school's research facilities, discuss and workshop it in classes, type on the school's computer's and print on school paper.

>Double standard? Maybe, but it certainly is a fuzzy line.

Mitch Gross
NYC DP



> Do schools claim ownership of other forms of artwork?

>I don't think so, I hope not.

class="style9">>other kinds of "deliverables" required for completion of a degree, such >as research? I imagine that the waters get much murkier at the >graduate level where students seem to become employees at some >level.

>Chris, I suspect that's where this all comes from.

>But really, what does the school want with an archive of student films ?

>Everyone I know or meet who teaches, especially "celluloid" seems constantly in a struggle to balance resources. I mean even jumping through hoops to get the students raw stock, and they're gonna archive IP's ? I think not

>Or are the schools hoping to "own" the next THX-1138 ?

>"Somewhere in our collection of 19,000 hours of miniDV tapes lies the first 'film' of the next George Lucas"

>Sam Wells



I've never heard of an art school that claimed ownership of student paintings and sculpture, for example.

>Anyways, I'll soon have a very incomplete list of schools just for comparison.

>It looks like very few US schools claim ownership. Most of the respondents to me say theirs don't, other than to claim the right to show works as examples of student work in future classes or screenings. This is what we do also, which is an outgrowth of when we were only a graphic design school.

Steven Bradford
Collins College
Phoenix Arizona



I teach film/video production at a community college in the L.A. area.

I firmly believe that students should own their own work. However, the college (and particularly our Media Arts program) has a vested interest in retaining a copy of student work and the right to use it for promotion or recruiting purposes. I have never had a student object to this policy, nor have I had anyone in administration tell me to do otherwise.

>I regularly communicate with most of the other community college Media and Film programs in California and I do not know of any one of them who insist on ownership of student work.

>Mike Petros
Assoc. Professor, Media Arts
Glendale Community College, CA



If a student holds ownership for a film school project (which I think on the most part they should), given that film is a collaborative medium, what student owns what?

>Does everyone involved in a project have an equal right of ownership (and thus right of exploitation) of the film as a whole? Is it the producer of the project that holds all the cards? Does the DP own the images/the writer the screenplay etc.?

>Curious...

>Ross McWhannell
DP. Leeds, UK


class="style9">>vested interest in retaining a copy of student work and the right to use it >for promotion or recruiting purposes.

>---That's perfectly reasonable and acceptable and even desirable from the student's point of view.

>Ownership, on the other hand, might hobble the student's attempt to use it for THEIR purposes, some of which might involve theatrical screenings, distribution, resume, and so on.

>Nothing wrong with a reasonable compromise on both ends which leads to a mutually beneficial outcome for both parties.

>Jeffery Haas
freelance shooter and editor
Dallas



Didn't USC used to claim ownership of their students' films? I thought this was a part of the system under which the school funded the project, chose who filled what position and restricted shooting time, equipment access, amount of raw stock, etc. The school essentially acted as a studio in this case and student's had to apply to this program. My question was whether there was ever any other opportunity at the school to make student films.

>I could have this seriously wrong as it's been some time. Anyone care to set me straight?

Mitch Gross
NYC DP



>Didn't USC used to claim ownership of their students' films?

>Yes and they still do, and they use the rationale you describe, as they try to function like a studio. I disagree with it, but I also see their point, and it does fit in with their philosophy.

class="style9">>My question was whether there was ever any other opportunity at the >school to make student films.

>Yes there are multiple other opportunities for students to make films, in groups and individually.

Steven Bradford
Film HD Program Chair
Collins College
Phoenix Arizona



---Which begs the question, and please correct me if I am wrong....Wasn't "Duel" Stephen Spielberg's "student film"?

>Jeffery Haas
freelance shooter and editor
Dallas



>Wasn't "Duel" Stephen Spielberg's "student film"?

>It was a commissioned TV movie, and IMDB lists it as his 14th credit, so I would tend to doubt it.

>Art Adams, DP [film|hidef|video]
Mountain View, California
San Francisco Bay Area - "Silicon Valley"
http://www.artadams.net/



Jeffery Haas writes :

class="style9">>---Which begs the question, and please correct me if I am >wrong....Wasn't "Duel" Stephen Spielberg's "student film"?

>Where to start?

>Duel was made for Universal television. Spielberg had been under contract to the studio for years by this point and had already directed many hours of television by that point, such as episodes of "Columbo." "Amblin'" might be the short student film of which you're thinking, photographed by the same Allen D. that would later shoot films such as "The Color Purple" and "Empire of the Sun" for him. Spielberg never attended USC.

>Oh, and his first name is spelled Steven.

Mitch Gross
NYC DP



In Australia, the commissioner of a creative work will only own the copyright in it if it is for a private or domestic purpose. In addition, this only applies to photographs and portrait paintings, drawings or engravings. It does not apply to films, although if the film was in the style of a moving portrait for a private domestic purpose, I wouldn't mind having a stab at claiming the commissioner owns copyright.

>In any commercial project, however, barring certain other exemptions in the Copyright Act (Australia), the author will own copyright. Of course there are all sorts of implied licences to use the films etc and that's usually where I get a call from my clients. Having proper contracts from the outset of any collaboration usually circumvents this type of uncertainty.

Tim Francis
Intellectual Property Lawyer
Finn Roache Lawyers
www.finns.com.au


> Dominic Doth Sayeth :

class="style9">>If you could have made the same film without the benefit of being at film >school, then you've wasted your money (and the school's time) in >signing up

>There are a lot of graduates from the university media programs in NSW (UTS, Macquarie, UNSW, CSU) who feel *exactly* that way. It seems of the lot, Macquarie gave the best actual -critical- feedback. At UTS, one friend presented a rough cut of his final year project - which he spent 3 months and nearly $10k on - to his tutor looking for feedback. All the tutor could offer for advice was 'post-production is a long process'. He got better feedback and advice from his friends and colleagues than his 'instructor'. This is NOT an isolated case.

>VCA and AFTRS don't count, because they're real film schools. If I got into AFTRS, they can have my IP.

>Still, it is curious to note that Cate Shortland won awards for the short films she made 'off-slate' at AFTRS and not those she made for her actual coursework. Steve Pasvolsky was a producing student when he directed Inja (which was nominated for an Academy Award for Best Short).

class="style9">>Clearly there is some form of transaction whereby some of the IP >should be attributed to the school.

>There is an argument that the School are Producers and that as Producers they have joint-ownership under the copyright act. I think that argument can stand for certain schools like VCA and AFTRS who are far more hands on in the production process. In fact, that’s the argument which VCA makes.

>For other schools who give you some gear and push you out into the big bad world saying 'good luck', I think its hard to argue that they are actually producers.

>FWIW, when I handed in my law thesis, I had to give permission for the University to keep a copy (!). As far as the law school was concerned, the IP was mine even though I was directly supervised. The research policy of Macquarie (and a bunch of other Australian universities, including Sydney, Melbourne, NSW, etc.) is that students own IP unless they sign an explicit agreement, and that agreement should be for an equal share of profit. Curiously, the media department at Macquarie just ignored the universities own policy... I'm not sure if American Uni’s are following this trend.

>But I defer to anything that Tim Francis says. He's actually a lawyer, I'm just a law graduand.

Stu Willis
director + editor
Sydney, Australia



>Intellectual Property Lawyer

>So, we have lawyers on the list…interesting, very interesting

class="style9">>In any commercial project, however

>I guess I'd start with a discussion of whether a production shot at film school was a commercial project. How would that argument go?

>Then I'd go on to ask who was claiming the IP in a film if it wasn't the school : was it the producer, the scriptwriter, the DoP? Once we got into that, I'd be asking what the school taught about the collaborative process.

>Perhaps I'd try a line that students, while at the school, were actually members of the school, so there was nothing difficult about the school holding claiming ownership on behalf of all of its members together.

>Finally, Stu Willis raises enough anomalies in this whole situation to make a meal for all the lawyers (including himself presumably, as soon as he has transited from graduand to graduate). But Stu, one day I'll break all the bounds of email list etiquette and comment on your repeatedly ungrammatical Shakespearean English:

>Dominic Doth Sayeth:

>…As you can use 'graduand' correctly (and if you can't you don't get to graduate), I'm sure you can figure out the correct form…

>Dominic Case
Atlab Australia



All this talk of who owns what exemplifies the need for agreement before you kick-off. Usually there are terms and conditions of enrolment in a course that should deal with copyright in works produced. If not, it's a matter that should be negotiated by the parties prior to entering into the project (easy for me to say, right?).

>Bear in mind also that the copyright in the script is different to the copyright in the finished film. There are also other potential issues, such as copyright in a live performance that is filmed.

>I won't deluge law at you all. My main concern is that people realise they need to deal with the issue of copyright before creation, not after it. (Have I harped on this enough?)

>And as for my much-maligned occupation, I am on the boards as a `wannabe' writer and filmmaker and piped up because I finally had something to contribute.

>Thanks to you all for sharing your insights.

>Tim Francis
Intellectual Property Lawyer
Finn Roache Lawyers


>Tim

>No intention to malign your occupation. Your contribution is most welcome, and adds value to the stuff from most of us self-appointed "bush lawyers" (though a bit of ignorant opinion always makes for a more interesting argument).

>Thanks for _your_ insights.

>Dominic Case
Atlab Australia


>{For the record, I have no intention of becoming a lawyer! I finished my law degree because its proven its usefulness w/r/t to understanding intellectual property as well as providing an insight into how the world works. Both things, particularly the latter, will hopefully prove useful to my film career. I'm sure Tim understands.}

>Apologies for the length.

>As for Dominic's question :

class="style9">>Then I'd go on to ask who was claiming the IP in a film if it wasn't the >school: was it the producer, the scriptwriter, the DoP? Once we got into >that, I'd be asking what the school taught about the collaborative >process."

>I have, sadly, blogged about this extensively. For what its worth, under the Copyright Act - which is the only legal instrument via which copyright is created and controlled - the makers are the copyright holders of a cinematograph film

s98 -

http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s98.html

s198 defines 'maker' to be "the director, the producer, and the screenwriter" (in that order)


http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s98.html

s191 further clarifies the meanings of those terms


http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s191.html

>DoP’s are sadly neglected from legal ownership of their work. So, at least in Australia, a DoP can jump and down and claim 'intellectual property' in a film... but that may only be a moral interest, not a legal or equitable one. The term IP is misleading. IP is a loose collection of law which gives certain kinds of property characteristics to intangible goods (to actually turn them into goods), but those 'goods' are not actually property.

>The problem with Intellectual Property is that there is a great deal of misinformation in the public - and that information certainly isn't helped by the lawfare waged by the copyright industries (RIAA, MPAA, ARIA etc) and their agenda-riddled propaganda. They want IP to be perfectly analogous to physical property. Hence 'piracy = theft' arguments, even though you can't actually steal copyright. Copyright, at least in the Western Tradition, is a artificially created monopoly designed to balance the interests of authors with the public in order to maximise social utility. It has very little to do with protecting an artists work (that’s in the realm of moral rights - which, curiously, is part of the copyright act in this country))

>...and I think that misinformation has consciously, or unconsciously, been abused by film schools. When my University's media department informed us that they owned copyright in our work, I spent a great deal of time (as can be evident), researching this... everything I discovered pointed that this wasn't a fait accompli. That in all probability, the Student's owned the work. I presented the Department with all my research and they just didn't want to hear the legal position, they just wanted to maintain their little academiocratic empire. When our work was screened on the ABC - and we later won a very large cash amount for the same final year film- they said NOTHING to us. However, a year later they bailed up a friend for a meagre $800 she got paid by the ABC to have her film screened. They guilt tripped her into giving it to them. This is a girl who spent $2000 of her (and her crew's) money to make her film. What the hell did the department need with $800? More wine?

>That’s why I'm passionate about this issue. Film students are usually (and probably unfortunately) only aware of cinema. They take what the school says for granted without doing any actual research. It certainly makes you cynical about everything else they teach. ("Oh, no, final cut pro is junk - no real editor is ever going to touch that").

>It is also why I think its also relevant for this list. As a student, be prepared to make a fight if you need too. Research and think independently.

>Thankfully, there are people like those on this list, who make this all seem so irrelevant. I wish to extend particular warm-fuzzy-feeling to those like Steve Bradford and Mike Petros who don't try to claim ownership of a student's blood-sweat-soul-and-tears.

>Stu "I verbify everything" Willis.
(director + editor ) - lawyer
Sydney, Australia



>s198 defines 'maker' to be "the director, the producer, and the >screenwriter" (in that order).

>Stuart makes a good point. The starting point for ownership of copyright in a film in Australia is s98 of the Copyright Act (although "maker" is defined in s189 ;oD). S98 also says that if someone makes an agreement with you to have you make a film for them, they own the copyright in it, provided they have paid you "valuable consideration".

Presumably a school would argue that they provided the education as consideration and a student would argue that they paid $$$ as consideration for the education and therefore the education can't be consideration for the making of any student films...IMHO it would be tough for a school to prove some sort of agreement and consideration.

Tim Francis
Intellectual Property Lawyer
Finn Roache Lawyers