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Intellectual Property

Discussion in 'Lighting and Electrics' started by Thomas, Jan 25, 2007.

  1. Thomas

    Thomas Member

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    If I’m not mistaken, if a computer programmer writes an application it remains his intellectual property until it is bought form him in some form. Regardless which equipment it was written on- and who owns the equipment- the above holds true. So, by extension, if one were to program a show into a light board/computer, usually owned by a theatre, venue or hire company, then I’d assume to actual 'program'- the light ‘show’, for want of a better word- would belong to the programmer.

    For arguments sake, assume the show is programmed on a fixed rig, where only the programming is variable- no designer is present in the equation.
    This is obviously a little more on the legal side of things, but I’m curious as to how other technicians feel about the issue.

    Any ideas?
     
  2. SHARYNF

    SHARYNF Well-Known Member

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    It is a bit more complex, it depends on how you were paid, it could be considered work made for hire.

    Sharyn
     
  3. Foxinabox10

    Foxinabox10 Active Member

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    For instance, if a discovery is made by a professor through research funded by his university, the university in most cases has the rights to the discovery.
     
  4. Footer

    Footer Senior Team Senior Team Premium Member

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    If you do a design, no matter scenery, lighting, costuming, etc... You are paid to do that design, the design is not bought from you. Legally (if you are using good contracts, USA 829 contracts...) the theatre can not take your design and rehand it, remount it, or the like without paying you again. Now comparing the button pushes you hit to turn stuff on to what a computer progammer does is completly different. It also depends on what contracts you are running. When Steve Wozniak invented the Apple computer he was working for HP building calculators, so HP had first rights to any discovery he made because of the wording of the contract he signed. HP did not want anything to do with the apple so he was left to his own on that one. In the real world, the show does not belong to the programmer any more then it belongs to the person that focuses the lights. Its the LD's show.
     
  5. Van

    Van CBMod CB Mods Premium Member

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    I'll agree and disagree with Footer. Most Theatres that use non-union contracts for designers etc. tend to use "intellectual Property" clauses in thier contracts, where when a designer is paid for his work that design becomes sole property of the theatre, with accredidation rights for the designer. U.S.A. contracts are different and much more weighted towards the rights of the designers.
    As to your first example Thomas, a programmer for a computer company does not own anything he/she produces, unless expressly spelled out in the contract under which they are employed. If they did have intellectual property rights then most gamming companies would go broke and never publish a thing as they'd be too busy paying lawsuit brought against them by the corporations they work for.
    Now, things are a bit different in different places. In Amerika where Facisim has taken hold these are usually the rule in other places, Europe, Australia, New Zealand they might have much more liberal intellectual property rights. :twisted:
     
  6. jwl868

    jwl868 Active Member

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    While not specifically applicable to the design question, there is some sort of legal action going on regarding director's rights and intellectual property having to do with a play called Tam Lin. I read about it some time ago, and I know I don't remember enough of the details to put them here. Try Googling "tam lin" with "director". I remember there being several blogs on the subject, but you might find the New York Times article about it.

    Joe
     
  7. zac850

    zac850 Well-Known Member

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    For the situation your referring to, a programer programing something:
    If you are paid by the hour, then your employer owns anything that you may have created in that hour. If you are paid for a final product (computer program, lighting program) then the employer owns your final product but not necessarly the steps you took to create it. For instance, perhaps you would leave the cues, but trash any focus points and pallets you created in the process of the programing.

    Now, there is also a lot of argument about this. There was a discussion on lightnetwork about this a while back, when you program how much you leave them with.
     
  8. Footer

    Footer Senior Team Senior Team Premium Member

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    The best part about lighting is that without the proper focus, the same thing can never be reproduced. Cues can be re-called, plots can be rehung, but without know how thing are focused your never going to have the same show.
     
  9. Thomas

    Thomas Member

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    True, there's the answer- without someone who knows the focus, you can rig until you go blue in the face but it'll never look the same- and thus never be the same. But, this is slightly off again, but as we all know it's not cool to be taking photos in the theatre when you're in the audience. Assuming a practically identical lighting design/effect/whatever was to appear in a different production, would there be any legal recourse? Other than the obvious bad karma on the copycat's part...

    Naturally, I assume there'd need to be some measure of proof involved before a legal claim can be made.
     
  10. RonaldBeal

    RonaldBeal Active Member

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    There are three issues you are looking at:
    1. What is the intellectual property?
    2. Who owns it?
    3. What does that mean for the IP owner?

    The most applicable form of IP in this instance is copyright.

    1.Copyright applies to any creative work "fixed in a tangible medium of expression."
    Copyright protection applies the moment a work is created, (registration is not required, unless you are seeking statutory damages for infringement.
    If you write a letter to your family, it is protected by copyright.

    Any drawings, plots, sketches, etc.. are all protected by copyright. The ink and paper are the "tangible medium of expression"
    As far as the courts in the USA are concerned, a lighting console is a computer, and your cues, focuses, palettes, presets, etc.. form a "program" The moment you save that showfile to disk, harddrive, cd, memory stick, etc... that "program" has become "fixed in a tangible medium of expression" as well, and is protected by copyright.

    2. Generally, the creator of the work is the owner of the copyrights. The main exceptions in this business is if the work is "made for hire" or if a contract establishes otherwise.
    As a condition for hire, a producer may require all copyrights be assigned to the production company, theater, etc... union contracts may also spell out copyright assignments.

    "Work made for hire" generally applies to employees creating copyrightable works as part of their regular employment. These copyrights are owned by the employer. An example would be a computer animation studio. It might have landscape artists, model makers, lighters, animators, etc... when an employee makes a new model, the studio owns the copyrights. The biggest question in this business is someone an independent contractor or an employee. There are tons of court cases discussing the finer details of whether someone is an employee or IC. The most basic answer is if the employer sets your hours and provides your tools, you are an employee, and the employer owns the copyrights. If you set the hours you work, and provide your own drawing drafting tools, then you are an IC, and own the copyrights.
    It is always best to get a contract explicitly stating who will own the copyrights to the lighting programming in advance.

    More info can be found here:
    http://www.copyright.gov/circs/circ09.pdf

    3. Finally Whoever owns the copyright, controls who can copy and distribute their work. Most shows will have dozens of copyrights involved. Scripts, songs, music, audio recordings, lighting, and are just a few of the IP's involved, so producers try to get all of the rights.

    This is just a starting point.
    Hope it helps.
    RB
     
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  11. Thomas

    Thomas Member

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    In a situation where the issue of copyright is not discussed or mentioned in any copyright, who owns the paperwork and program? A designer would essentialy be making work for hire, right? This then implies it is owned by the hiring party, the producer? Or perhaps the owner of the console/computer? (Assuming both are seperate parties?)
     
  12. RonaldBeal

    RonaldBeal Active Member

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    That is the million dollar question.
    A staff designer for a rep theater will most likely be scheduled by the theater/producer, tools will br provided, etc... their work will be "work made for hire" and the theater/producer will own the copyrights.

    However if a show hires a freelance designer, who uses their own computer and cad programs to do the drawings, then most likely the designer will own the copyrights. (unless an agreed upon contract stipulates otherwise.)

    A good general yardstick is how taxes are done. If the designer gets a W-2 tax form, then most likely they will be considered a regular employee, and the employer owns the copyrights. If the designer gets a 1099, then most likely the designer owns the copyrights. Some designers work for design firms (usually that they are part or whole owners.) Typically those designs will be "owned" by the design firm.

    The most ambiguous aspect is the actual showfile. Usually the producers provide the console, and set the programming schedule. The showfile is actually a "derivative work" of the design, so ownership usually is controlled by whoever owns the rest of the design copyrights.

    "work made for hire" status is a very grey area, and very minor details can change the status of a copyrighted work. It's always best to get it in writing BEFORE work starts.

    Most big name professional designers retain their copyrights, or charge a higher rate, or get right of first refusal ect... for transferring the copyrights to the producers.
    Hope this helps
    RB
     
  13. RonaldBeal

    RonaldBeal Active Member

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    P.S.
    I am not a lawyer,
    but did take several copyright law, and contract law classes in college.
    RB
     
  14. Van

    Van CBMod CB Mods Premium Member

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    Thomas, I'd like to visit your original question. If I understand it correctly you are asking if, in the absence of a designated "designer" do you, as a board op who happened to program a few light cues retain any "Copyright" control over said work. I would have to say no. In that situation you would, more than likely, be being retained as a technician, being paid hourly, and your commitment to program some cues would fall either under the standard, "and other duties as assigned" clause, or would be considered part of your standard compensation for work, which would make it "work for hire" in which case you would retain no copyrights whatsoever. Now, if you are wondering about credit.... that's a different story, I belive it's perfectly reasonable to claim credit for such work on your resume'. Is it resonable to expect extra compensation ? That depends greatly on Labor laws that exist in South Africa and I wouldn't begin to give you an answer on that one..In America, in most states you'd simply be Out Of Luck. In other states depending on the situations surounding your employment you might expect "comp time" for extra hours spent on such a project, However, if you qualify for comp time, you are a salaried employee and most likely will have already signed an Intellectual Properties Rights agreement with your employer.......
    It's a really slippery subject.


    P.S. I'm not a lawyer either. I didn't take any classes,
    I pull my information from expirience garnered from
    holding posistions in both Labor and Management.
     
    Last edited: Feb 3, 2007
  15. Chris15

    Chris15 CBMod CB Mods Premium Member

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    And whilst I don't know the details, I would hazard a rather large guess that it all changes when you move outside the states... I'm pretty sure that our backward copyright laws would work differently...
     

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