Who Owns the Clip? - Part 1
Recently, due to various normal life factors, one of the riders whom I contract to represent the brand I manage had to part ways with the team. Final paychecks were sent, plans for the press release were hashed out, and assurances were made that friendships remained intact. It was as amiable as could be and that’s the truth. But days later, I stumbled upon an issue that I hadn’t foreseen and didn’t know how to address. You see, we were in the process of filming for a DVD to help push the brand as well as to fulfill our desire to do a big project. I, as a representative of the company, had contracted a filmer to record our riding and eventually turn it into a full-length BMX video for reproduction and sale. And amongst that filmer’s cache of digital files of those recorded clips was a single clip of the rider who was parting ways with the brand. And that clip was pretty awesome. It, like most BMX clips, deserved to see the light of day. But, after a lively discussion between the filmer and I, we couldn’t agree what to do with it and came to the big question that I am here to discuss today:
Who owns the clip?
Backing up a moment for those who may be from outside of the BMX world, “getting a clip”—the act of video recording a trick performed on a BMX bike—is one of the most common occurrences in BMX culture. It is commonly understood that hanging with friends, exploring a city, persevering and learning a trick, flowing through a line, and many more things are defining parts of BMX, yet there is no denying that over the last 30 years, “getting a clip” has been an integral part of almost every BMXers’ life.
Sometimes, especially now with a “camera” in every pocket, it’s as simple as “Hey, get this real quick.” And 15 seconds later, you have documentation of you doing that wonderful thing we call riding BMX. An interaction of your imagination, your abilities, and the real world; the trick you do and the clip that becomes proof of its occurrence, serves multiple purposes—a remembrance for you and/or a piece of art to share with the world. But, let’s not forget that often times, that short snapshot in time doesn’t come that easily. As a matter of fact, it’s also very common to refer to getting a clip as a “battle”—primarily because it can be a long and challenging process. And that battle is often waged on multiple fronts. The internal or mental struggle can break a rider down to fits of rage or even tears. The physical battle can wear a rider down to complete exhaustion—or even worse—it can break their body. And the environmental battle can see a rider losing control of their shivering hands, passing out from a beating sun, or struggling to navigate between cars and humans. All of this is to say that “getting a clip” is often times extremely hard and therefore most riders are concerned that they have access to/control of that clip in one way or another.
But that isn’t the whole story. On the other end of this process is the person capturing the clip. A note: in this day and age, it is increasingly possible and realistic that the clip has been recorded by the person doing the riding. “Selfie” filming isn’t new to BMX culture, but it has become much easier and thus more common now (more on the relevance of this a bit later). Yet, the majority of BMX clips are filmed by an external person who is often actually a “professional filmer.” That person brings their own baggage to the process—literally and figuratively. Most likely, they will have years of valuable experience (informal and/or formal). In addition, they are often using their own expensive and specialized equipment. Or they may just be a random person pushing the button. Either way, as a filmer, they are often struggling through the process (battle) as well. Physically, like the rider, they may be “following” the person and thus actually having to engage in an activity like riding/skating/running with a camera in hand. And just like the rider, they may be doing so over and over again in the same challenging conditions mentioned above.
After all is said and done though, there is a clip—a few seconds of recorded video and audio data. Nowadays it’s a simple digital file. A tiny piece of nothing floating in the magic of our devices or “written” on a tiny chip. Back in the day it was a bit more tangible, but really, aside from the difference is size between tapes and memory cards, there is no significant distinction. After all, the clip is not so much a concrete thing, but rather a frozen memory of an often challengingly produced artistic expression.
With all of this background, the simple question we started with doesn’t appear so simple anymore.
Again, who owns the clip?
I’ll be honest, when I started out to find the answer to this question, I assumed it was the rider. They are an artist, they created something with blood, sweat, and imagination, and thus they are entitled to ownership of the record of that process.
But what about the filmer? They did work—sometimes a considerable amount of it. And often they do it with skills that were not “free” to acquire and equipment that is far from cheap.
As we are not the first people to talk about this, I found some sort of answer to our question quite quickly. Mind you, I am only focusing on the context of filming in the United States when answering this question. However, it is worth noting though that it appears the answer to our question is often the same in other countries. Regardless, here is what I found:
“Under U.S. law, copyright in a photograph is the property of the person who presses the shutter on the camera — not the person who owns the camera, and not even the person in the photo.”[i]
And from another source with more detail and specifically applying to “filming a clip.”
“…The default rule under the Copyright Act is that the moviemaker owns all copyrights in the video. This would include both the raw footage and the final, edited version of the video. This is so because under the Copyright Act, the artist who fixes the work in a tangible medium owns the copyright, not the third party for whose benefit the work was created.”[ii]
Okay, so who owns the clip?
According to this, it seems pretty clear that the filmer owns the clip. Not to mention, the last sentence of the second quote seems to eliminate any sort of overarching ownership by the person/brand/company/entity paying for the filming of the clip.
But, not so fast. Things aren’t always that simple. Here is that first quote from above plus the next sentence (square parentheses added by me to help clarify).
“Under U.S. law, copyright in a photograph [video clip] is the property of the person who presses the shutter on the camera — not the person who owns the camera, and not even the person in the photo [video clip]. Unless a written agreement exists that makes the photo [video clip] a work made for hire.”
There is a wrinkle that last statement adds and it directly relates to the actual situation that started all of this. The actual clip in question was filmed by a professional filmer who was hired to “provide clips for use in video projects deemed necessary by the company/brand manager.” In other words, the filmer was contracted to film clips of team riders and give them to the brand manager (me).
So now, who owns the clip?
A written contract requiring “getting clips” for use at the discretion of the brand does exist. The “ for use in video projects deemed necessary by the company/brand manager” part is really important as it is basically a pre-filming explanation of control. And as it was agreed to by the filmer, in my case, it seems as if the brand (and thus me as representative of the brand) has claim to ownership of this clip.
Though this is a “victory” for me in this specific situation, what about the rider? Isn’t he basically like an artist or a performer? And thus, isn’t this intellectual property theft? Does the rider have any rights to their “work” without a written contract?
Or, is what we do in front of cameras the same as a random person taking your phone and taking a video of you doing a yoga pose in front of the Eiffel Tower? I would argue that the act of filming riding in front of camera is a bit more than capturing a “moving picture” of the world around us or of a simple human action. Remember the “battle” the rider went through?
In the search for clarity I came upon people asking these same questions about another performance based art quite comparable to ours: acting.
Actors, are bringing more than just themselves to the table. They, like BMXers, bring skills honed via practice and training that are in-and-of themselves valuable and often paid for. But, just like the example we began with, there are usually more layers to it than just an actor acting in front of a filmer filming. There is a script, written by writers, there is a studio, financed by producers, there is the crew….etc. You get the picture. The parallels abound and thus how actors have answered this question is relevant to BMXers.
Let’s look at a much-publicized example that was in the news in 2015. The story is that of an actress who was misled about what she was acting in, but nonetheless was paid a flat fee for her small part in the project. She had no pre-existing contract outlining her ownership, but sued for copyright control of her performance after the project was made and released. Her argument was based on an extremely odd situation where her clip ended up being used—with a fake voiceover—in a controversial religious video that, after uploaded to YouTube, brought her globally-sourced death threats. With a proper claim to copyright she argued that she would be able to petition Google and YouTube to remove the video featuring her and thus protect her from the political issues surrounding it. Even in this case, where a performance (clip) was misused—and for shady purposes at that—the courts finally ruled that the copyright claim still laid with those who “affixed” the media unless otherwise negotiated ahead of time. The long and short: The performer does not own the clip, even in the most extreme of instances.[iii]
So, back to BMX, I’ll ask one more time:
Who owns the clip?
At the end of the day, the most likely answer is “not the rider” (with that one exception I mentioned in the introduction: selfie filming where the rider pushes the record button themselves).
Now, a quick aside. What about Instagram? Isn’t that always the question? The reality is, Instagram provides an example of a bigger issue related to the general ownership of clips/video/photographs. When you post something to Instagram—or any other sharing platform—and you put it out there for the public to see, you are doing just that: putting it out there for the public to see. But only see.
Copyright law, when applied to this type of case (and it has often been applied to this type of case) is very clear: just like we outlined above, most likely the person who filmed that clip or shot that photo or created that artwork owns that media. Even though posting it is seen as making it “public,” the idea of “for all to see” does not imply “for all to use.” Taking someone else’s media onto your own device and/or re-posting/sharing it is a clear cut case of copyright infringement. And no, “giving credit” to a person with a shout out to their account does not clear you of having to get permission for using that media. By law, you have stolen that media.[iv]
In conclusion, regardless of the circuitous route we took to get here, this question has a pretty clear answer: the rider does not have the rights to the clip they film unless they film it themselves or they pre-arrange a contract to the contrary. More than likely, the person who pushed the button owns the clip unless an explicitly agreed upon contract says otherwise. In most instances, this may not matter to you, but in some, it could. You are best served to keep this all in mind when spending your time, energy, creativity, and blood in front of a lens.
Who owns the clip?
Backing up a moment for those who may be from outside of the BMX world, “getting a clip”—the act of video recording a trick performed on a BMX bike—is one of the most common occurrences in BMX culture. It is commonly understood that hanging with friends, exploring a city, persevering and learning a trick, flowing through a line, and many more things are defining parts of BMX, yet there is no denying that over the last 30 years, “getting a clip” has been an integral part of almost every BMXers’ life.
Sometimes, especially now with a “camera” in every pocket, it’s as simple as “Hey, get this real quick.” And 15 seconds later, you have documentation of you doing that wonderful thing we call riding BMX. An interaction of your imagination, your abilities, and the real world; the trick you do and the clip that becomes proof of its occurrence, serves multiple purposes—a remembrance for you and/or a piece of art to share with the world. But, let’s not forget that often times, that short snapshot in time doesn’t come that easily. As a matter of fact, it’s also very common to refer to getting a clip as a “battle”—primarily because it can be a long and challenging process. And that battle is often waged on multiple fronts. The internal or mental struggle can break a rider down to fits of rage or even tears. The physical battle can wear a rider down to complete exhaustion—or even worse—it can break their body. And the environmental battle can see a rider losing control of their shivering hands, passing out from a beating sun, or struggling to navigate between cars and humans. All of this is to say that “getting a clip” is often times extremely hard and therefore most riders are concerned that they have access to/control of that clip in one way or another.
But that isn’t the whole story. On the other end of this process is the person capturing the clip. A note: in this day and age, it is increasingly possible and realistic that the clip has been recorded by the person doing the riding. “Selfie” filming isn’t new to BMX culture, but it has become much easier and thus more common now (more on the relevance of this a bit later). Yet, the majority of BMX clips are filmed by an external person who is often actually a “professional filmer.” That person brings their own baggage to the process—literally and figuratively. Most likely, they will have years of valuable experience (informal and/or formal). In addition, they are often using their own expensive and specialized equipment. Or they may just be a random person pushing the button. Either way, as a filmer, they are often struggling through the process (battle) as well. Physically, like the rider, they may be “following” the person and thus actually having to engage in an activity like riding/skating/running with a camera in hand. And just like the rider, they may be doing so over and over again in the same challenging conditions mentioned above.
After all is said and done though, there is a clip—a few seconds of recorded video and audio data. Nowadays it’s a simple digital file. A tiny piece of nothing floating in the magic of our devices or “written” on a tiny chip. Back in the day it was a bit more tangible, but really, aside from the difference is size between tapes and memory cards, there is no significant distinction. After all, the clip is not so much a concrete thing, but rather a frozen memory of an often challengingly produced artistic expression.
With all of this background, the simple question we started with doesn’t appear so simple anymore.
Again, who owns the clip?
I’ll be honest, when I started out to find the answer to this question, I assumed it was the rider. They are an artist, they created something with blood, sweat, and imagination, and thus they are entitled to ownership of the record of that process.
But what about the filmer? They did work—sometimes a considerable amount of it. And often they do it with skills that were not “free” to acquire and equipment that is far from cheap.
As we are not the first people to talk about this, I found some sort of answer to our question quite quickly. Mind you, I am only focusing on the context of filming in the United States when answering this question. However, it is worth noting though that it appears the answer to our question is often the same in other countries. Regardless, here is what I found:
“Under U.S. law, copyright in a photograph is the property of the person who presses the shutter on the camera — not the person who owns the camera, and not even the person in the photo.”[i]
And from another source with more detail and specifically applying to “filming a clip.”
“…The default rule under the Copyright Act is that the moviemaker owns all copyrights in the video. This would include both the raw footage and the final, edited version of the video. This is so because under the Copyright Act, the artist who fixes the work in a tangible medium owns the copyright, not the third party for whose benefit the work was created.”[ii]
Okay, so who owns the clip?
According to this, it seems pretty clear that the filmer owns the clip. Not to mention, the last sentence of the second quote seems to eliminate any sort of overarching ownership by the person/brand/company/entity paying for the filming of the clip.
But, not so fast. Things aren’t always that simple. Here is that first quote from above plus the next sentence (square parentheses added by me to help clarify).
“Under U.S. law, copyright in a photograph [video clip] is the property of the person who presses the shutter on the camera — not the person who owns the camera, and not even the person in the photo [video clip]. Unless a written agreement exists that makes the photo [video clip] a work made for hire.”
There is a wrinkle that last statement adds and it directly relates to the actual situation that started all of this. The actual clip in question was filmed by a professional filmer who was hired to “provide clips for use in video projects deemed necessary by the company/brand manager.” In other words, the filmer was contracted to film clips of team riders and give them to the brand manager (me).
So now, who owns the clip?
A written contract requiring “getting clips” for use at the discretion of the brand does exist. The “ for use in video projects deemed necessary by the company/brand manager” part is really important as it is basically a pre-filming explanation of control. And as it was agreed to by the filmer, in my case, it seems as if the brand (and thus me as representative of the brand) has claim to ownership of this clip.
Though this is a “victory” for me in this specific situation, what about the rider? Isn’t he basically like an artist or a performer? And thus, isn’t this intellectual property theft? Does the rider have any rights to their “work” without a written contract?
Or, is what we do in front of cameras the same as a random person taking your phone and taking a video of you doing a yoga pose in front of the Eiffel Tower? I would argue that the act of filming riding in front of camera is a bit more than capturing a “moving picture” of the world around us or of a simple human action. Remember the “battle” the rider went through?
In the search for clarity I came upon people asking these same questions about another performance based art quite comparable to ours: acting.
Actors, are bringing more than just themselves to the table. They, like BMXers, bring skills honed via practice and training that are in-and-of themselves valuable and often paid for. But, just like the example we began with, there are usually more layers to it than just an actor acting in front of a filmer filming. There is a script, written by writers, there is a studio, financed by producers, there is the crew….etc. You get the picture. The parallels abound and thus how actors have answered this question is relevant to BMXers.
Let’s look at a much-publicized example that was in the news in 2015. The story is that of an actress who was misled about what she was acting in, but nonetheless was paid a flat fee for her small part in the project. She had no pre-existing contract outlining her ownership, but sued for copyright control of her performance after the project was made and released. Her argument was based on an extremely odd situation where her clip ended up being used—with a fake voiceover—in a controversial religious video that, after uploaded to YouTube, brought her globally-sourced death threats. With a proper claim to copyright she argued that she would be able to petition Google and YouTube to remove the video featuring her and thus protect her from the political issues surrounding it. Even in this case, where a performance (clip) was misused—and for shady purposes at that—the courts finally ruled that the copyright claim still laid with those who “affixed” the media unless otherwise negotiated ahead of time. The long and short: The performer does not own the clip, even in the most extreme of instances.[iii]
So, back to BMX, I’ll ask one more time:
Who owns the clip?
At the end of the day, the most likely answer is “not the rider” (with that one exception I mentioned in the introduction: selfie filming where the rider pushes the record button themselves).
Now, a quick aside. What about Instagram? Isn’t that always the question? The reality is, Instagram provides an example of a bigger issue related to the general ownership of clips/video/photographs. When you post something to Instagram—or any other sharing platform—and you put it out there for the public to see, you are doing just that: putting it out there for the public to see. But only see.
Copyright law, when applied to this type of case (and it has often been applied to this type of case) is very clear: just like we outlined above, most likely the person who filmed that clip or shot that photo or created that artwork owns that media. Even though posting it is seen as making it “public,” the idea of “for all to see” does not imply “for all to use.” Taking someone else’s media onto your own device and/or re-posting/sharing it is a clear cut case of copyright infringement. And no, “giving credit” to a person with a shout out to their account does not clear you of having to get permission for using that media. By law, you have stolen that media.[iv]
In conclusion, regardless of the circuitous route we took to get here, this question has a pretty clear answer: the rider does not have the rights to the clip they film unless they film it themselves or they pre-arrange a contract to the contrary. More than likely, the person who pushed the button owns the clip unless an explicitly agreed upon contract says otherwise. In most instances, this may not matter to you, but in some, it could. You are best served to keep this all in mind when spending your time, energy, creativity, and blood in front of a lens.
[i] https://www.technologylawsource.com/2015/04/articles/intellectual-property-1/who-owns-the-photo/
[ii] https://www.moviemaker.com/archives/series/cinema_law/cinema-law-who-owns-what-raw-footage-vs-completed-project-20090623/
[iii] https://www.indiewire.com/2014/03/do-your-actors-own-your-film-168874/
[iv] https://www.refinery29.com/en-us/2018/04/196864/instagram-copyright-dos-donts
[ii] https://www.moviemaker.com/archives/series/cinema_law/cinema-law-who-owns-what-raw-footage-vs-completed-project-20090623/
[iii] https://www.indiewire.com/2014/03/do-your-actors-own-your-film-168874/
[iv] https://www.refinery29.com/en-us/2018/04/196864/instagram-copyright-dos-donts
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