I just received an email from Michelle Melski, the new communications manager at Voices Dot Com (VDC).
“After conversations with customers and industry stakeholders it became obvious that we needed to clarify our Terms of Service, particularly around the ownership of files.
Our terms of service will be updated tomorrow (11/12/’19 PS) to reflect that voice talent own the demos they are uploading to the website and that the clients own the finished work. Our CEO will blog about it in more detail on our website tomorrow, but I wanted to give you a heads up because I know that it matters to you.”
In his blog, VDC CEO David Ciccarelli writes:
“As always, voice talent are the owners of their demo materials. Voices.com holds ‘non-exclusive’ rights to host and promote these files through our website and mobile applications.
Additionally, clients own the final files for the work that they have paid to have completed on Voices.com. Ownership and usage of final files is determined by what’s written in the job posting, service agreement or other agreement between the talent and the clients.”
“I trust that you’ll see our commitment to providing a valuable service that is governed by policies designed to protect our community.”
To some this may not seem like a big deal, but in my understanding an independent contractor owns the intellectual property (IP) rights to his or her creation, in this case an audio recording.
Unless the talent explicitly waives those rights, the client does not own the finished voice recording. The client only pays for limited usage of the work. It’s very much like a professional photographer keeping ownership of the negatives while the client pays for limited use of those negatives.
Only if you have a written contract in place (a so-called work for hire agreement) that was agreed upon before the job began, stating that the intellectual property belongs to the client, the freelancer loses his or her rights. If there’s no written agreement, the IP remains with the voice talent.
Mind you: just because the client paid you for your work does not mean he or she automatically owns the intellectual property rights.
The big question is: are the VDC Terms of Service (TOS) the same as a work for hire agreement?
“This issue will need to be tested by the Courts, and talent should think long and hard about waiving their intellectual property rights through a buried term in a terms of service agreement on a website.” Rob continues:
“The talent owns the recording unless they sign a work for hire agreement. Does the TOS meet the terms for a valid work for hire agreement? In order for it to be challenged properly I would recommend talent register the work as a sound recording with the US Copyright office just prior to submitting to VDC. The end client may ask the talent to sign a work for hire, but it’s an open question for me whether TOS is an enforceable work for hire.”
Rob writes in his book:
“Voice talent are most certainly hired to do most voice over jobs as “work for hire,” meaning that whoever hires the voice talent is retaining the right to copyright the finished product with the talent’s voice on it. This is normal and customary in the business.”
Here’s my take on it.
As freelancer, I am free to set my own terms and conditions when working with my clients. I can negotiate my rate, in part based on intended usage of the audio, precisely because I own the intellectual property rights to my recordings. Why would I want to give those rights away?
Has VDC asked any of their talents if they agree that content created by the talent for a third party belongs to that party, simply because VDC claims their Terms of Service trump intellectual property laws?
And if you’re giving something away, shouldn’t you get something in return?
I asked VDC’s Michelle Melski:
“Does this mean that all VDC members effectively agree to a full buyout in perpetuity? If so, how will this be reflected in the rates?”
“As always, clients are only able to use the files for the specifications laid out in the Job Posting, Services Agreement, or other agreement between Talent and Client. Our CEO will outline this in more detail on our blog tomorrow (11/12/’19 PS).”
What guarantees does the talent have that clients owning the finished work will stick to those agreements? How is VDC going to monitor and enforce that? And will VDC rates go up in exchange for talent giving up up their intellectual property rights? And should you really have to register your work with the US copyrights office at $35 a pop, every time you land a job on VDC? Is the client really willing to wait until your voice over is officially registered?
As Rob Sciglimpaglia notes in Voice Over Legal:
“The copyright is effective on receipt by the Copyright Office, and you will receive your registration certificate in four to five months. Because of this time delay, it’s advisable to send the material by either certified mail (return receipt requested), or courier (such as FedEx or UPS).”
The following screenshot provided by VDC outlines the specifications a client must list when posting a job for a voice talent at VDC. Michelle Melski says the rate is adjusted based on the parameters of the job.
Just remember that transparency has always been lacking at VDC, and since I’m no longer a member I cannot tell you if rates have actually gone up.
This whole relinquishing your rights thing is clearly a move that benefits clients and not the talent VDC says it represents. What community is VDC actually protecting?
It’s no wonder why so many smart voice actors have left this company, and why VDC is no longer welcome at conferences like VO Atlanta.
So, will this be the final straw for you, or are you okay with VDC giving away your rights to please their cheap clients?
Paul Strikwerda ©nethervoice
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